What does the court consider when making a custody decision?

In a child custody case, the paramount concern is the best interests of the children. Rote solutions in child custody matters are not possible because of the unique character of each case and of each child. The best interest of the child is therefore not considered as one of many factors, it is considered as the objective to which all other factors are measured.

What factors will the court consider in determining best interest of the child and awarding custody

While no list of factors can be exhaustive given the individual characteristics of each custody case, here is a list of factors often considered by Maryland courts in custody cases: (1) fitness of parents; (2) character and reputation of parties; (3) desire of parents and agreements between parties; (4) potential of maintaining natural family relations; (5) preference of the child; (6) material opportunities affecting the future life of the child; (7) age, health and sex of the child; (8) residences of the parents and opportunities for visitation, or geographic proximity of parental homes; (9) length of child’s separation from parent; and (10) prior voluntary abandonment or surrender.

The considerations in awarding joint custody add complexities such as: (1) capacity of parents to communicate and reach shared decisions affecting child’s welfare; (2) willingness of parents to share custody; (3) relationship between child and each parent; (4) potential disruption of child’s social and school life; (5) demands of parental employment; (6) sincerity of parent’s request; (7) financial status of parents; and (8) benefit to parents.

Can I ask the court to supervise the other parent’s time with the children?

In Maryland, if the court has a reasonable basis to believe that a child has been abused or neglected by a parent, the court may require supervised visitation in an effort to protect the future safety, physiological, psychological and emotional well-being of the child.

In extreme cases, the court can even deny custody and visitation rights entirely to protect the child. Whenever the court restricts or denies visitation, the restriction can be lifted if the court finds that there is no likelihood of further child abuse or neglect.

How can I modify the custody arrangements for the children?

Custody and access (visitation) orders are always modifiable by the court if there has been a material change in circumstances (major events impacting the welfare of the child) since the date of the last Court Order, and the change fundamentally affects the best interests of the child. The court retains the power to modify custody and access orders for children until they reach the age 18.

In addition to major events which can trigger a material change in circumstances, whenever a parent relocates to another state, affecting the custody or access rights of the other parent, that relocation will be considered a per se material change in circumstances necessitating a request for modification of custody or access. Other material changes in circumstances may include a change in the child’s needs, a change in a parent’s work schedule, a change in a parent’s travel schedule or a change in a parent’s treatment of the child.

Whenever the court modifies custody, the court may also examine whether child support should be adjusted as well.

Can another relative seek custody of my children?

In a dispute between a parent and a non-parent third party, there is a presumption that the best interest of the child is served by awarding custody to the parent.

This presumption can be rebutted if: (1) the parent is unfit; or (2) exceptional circumstances exist so that custody with the parent would not be in the child’s best interest.

This is a very difficult burden to overcome. However, when a third party is granted custody, it is always subject to modification based on a material change in circumstances.

A parent’s custodial rights are not terminated by the award of custody to a third party, nor is the parent precluded from seeking custody in the future. The parent may also be granted the right to visit and/or communicate with the child as part of a third party custody award.

Our child only wants to live with me. Will the court allow the child to decide?

A minor child who is 16 years old or older may petition the court, on their own, to seek to change an existing custody order.

After holding a hearing, the court may modify the existing custody order if the court finds the change to be in the child’s best interest. However, the court is not obligated to follow the desires of a 16-year-old child who petitions the court, but will do so in many cases if it finds the child’s basis for seeking a change in custody to be reasonable.

For a child under the age of 16, who has strong feelings about custody and living arrangements, a Judge or Magistrate may interview the child in chambers (outside of the courtroom) regarding their desires and concerns. Unless waived, the court must make a record of the interview for the parents.

However, in custody cases, calling a child to testify as a witness is extremely discouraged by the court and may be viewed negatively upon the fitness of the parent seeking to have the child testify.

My child needs an attorney. Will the court appoint one?

If requested by a party, an attorney may be appointed for a child in custody cases for three (3) reasons:

1. A Best Interest Attorney may be appointed to protect a child’s best interests, regardless of the child’s desires and even if disclosure of confidential information from the child is needed.

2. A Child Advocate Attorney may be appointed to provide independent counsel for a child and owes the child undivided loyalty, confidentiality and competent representation. Such an attorney is appointed when a child needs a voice in court, such as relocation cases, when there are allegations of abuse, or when a child is sufficiently mature to have distinct interests.

3. A Child Privilege Attorney may be appointed to decide whether to assert or waive the child’s privilege of confidentiality with a psychiatrist, psychologist, and/or social worker. If the child’s therapeutic privilege is waived, the health care provider may be permitted to testify and release confidential treatment records.

What happens if the non-cusodial parent refuses to return the child to the parent with custody?

If a child is under 16 years of age, it is unlawful to keep that child for more than 48 hours within the state of Maryland, or remove the child from the state of Maryland for more than 48 hours, after the lawful custodian has demanded the child’s return. See Maryland Rule: Md. FAMILY LAW § 9-304

Who has custody of a child before a court orders it?

Both parents are the joint natural guardians of their child under 18 years of age
and are both charged with their child’s support, care, nurture, welfare and education. They have equal powers and duties, and neither parent has any right superior to the right of the other concerning the child’s custody.

Can I relocate with our child without consent from the other parent?

If a parent desires to relocate with a child, the other parent has the right to object to the relocation for any reason, especially if the move would interfere with non-relocating parent’s custody rights.

When parents cannot agree upon whether a child can relocate to another state, either parent can request the court to modify custody and visitation if the relocation of the child is of sufficient distance to interfere with the current custody arrangement.

Pursuant to Maryland law, a relocation of a child is a per se “material change in circumstances” necessitating the court to review the custody arrangement. As with any custody case, the c ourt will ultimately consider what is in the child’s best interest when determining whether or not to allow the relocation. Nonetheless, the court cannot deprive a parent of the right to relocate, the court can only decide whether the child can relocate with the parent.

How can I change my current custody arrangement?

The court may modify agreements made between parents concerning custody and visitation if doing so is in a child’s best interests. However, after a court enters an order of custody or visitation (including an order approving and incorporating the parents’ agreement into its order), the custody order may be modified only upon a showing of changed circumstances affecting the child’s welfare since the date of the last custody order.

What is a Nesting Arrangement?

It is a possible solution to the problem of finding the right balance of parenting time for each parent after a separation. In a Nesting Arrangement the children will reside in one home, and the parents will live in that home when they are having their parenting time with the children, but will live in a different residence when they are not having their parenting time with the children. Essentially, instead of the children shuttling back and forth between the homes of each parent, it is the parents who move back and forth between the “nest.”

Have any questions about this topic, please call me (240)617-0405.