Child Custody and Visitation
Whether through a divorce or through a custody action, determination of custody and visitation with your children is important. A comprehensive agreement minimizes conflict and reduces the chances of returning to the courthouse to modify an agreement. Although very important, many couples find it very difficult to come to a custody agreement. It is indisputable that the best custody plan is one that is designed by the agreement of the parents and that addresses the individual needs of their children and family dynamics. However, if an agreement cannot be made, the court will look at what is in the best interests of the child to make a custody determination.
There are two types of custody arrangements for children in Maryland: Legal Custody and Physical Custody.
Legal custody addresses the question of which parent will make important decisions for their children. Important decisions include subjects such as non-emergency medical treatment, education and religious upbringing. Although there is no presumption that joint legal custody is most appropriate, courts are inclined to award joint legal custody where the evidence demonstrates that parties have the ability to communicate effectively and to reach shared decisions regarding their child or children.
Joint Legal Custody
Where parties share joint legal custody both parents have an obligation to inform and discuss important issues with the other parent prior to taking any affirmative action. As well, both parents must agree on the course of action prior to it being initiated. For example, if one parent wants to place the child in psychological counseling, both parents will have to consent to such treatment before any provider will begin therapy.
Sole Legal Custody
Sole legal custody means that only one parent has sole decision making authority regarding important decisions in the child's life. In a sole legal custody arrangement, the parent with legal custody is not required to consult with the other parent prior to making important decisions for their child.
Under some circumstances, courts will award a hybrid of joint and sole legal custody. Hybrids can be specific to the final decision maker or divide up decision-making responsibility. For example:
1. The parties share joint legal custody, but in the event of an impasse, the mother has tie-breaking authority.
2. The parties have joint legal custody in regards to religious and non-emergency medical treatment, but the father has sole legal custody in regards to academic decisions.
Physical custody refers to where the child is physically spending their time. Physical custody and its various forms are referred to by many different labels including but not limited to sole custody, joint custody, shared custody and visitation.
The "Best Interest" of the Child
The court uses the "best interest" standard when deciding the custodial arrangements for children. In making a determination as to the best interest of a child, the court may consider the following factors among others:
• Fitness of the parents
• Character and reputation of the parents
• Willingness of each parent to share custody
• Relationship between the child and each parent
• Potential disruption of particular custody arrangement upon a child's social and school life
• Geographic proximity of parents' homes
• Desire of the natural parents and the terms of any agreements between them
• The likelihood of maintaining natural family relations
• The preference of a child when the child is of sufficient age and capacity to make rational judgments
• Opportunities affecting the future life of the child
• Age, health and gender of the child
• Suitability of the homes of the parents and whether a non-custodial parent will have adequate opportunities for visitation
• Length of time of any separation between a child and natural parent
• Effect of any prior voluntary abandonment of the child
• Demands of each parent's employment
• Financial status of each parent
After the court determines what custodial arrangement is in the best interest of the child, the judge will sign an order setting the terms of the arrangement. This order will govern the custodial arrangement until the child reaches the age of 18 or until either parent seeks a modification of the custody order.
Modification of Custody Orders
A custody order can only be modified by the court if a parent is about to establish that there has been a substantial change in circumstances since the entry of the last court order. A change in circumstance can be almost anything, but the moving party must establish that the change has some impact on the best interest of the child. Some examples of a substantial change in circumstance may be the remarriage of one parent, the relocation of a parent, drug use of a parent, change in academic performance or change in living conditions. Once the court determines that a substantial change in circumstance has occurred, the court will re-evaluate the current facts and make a new determination based once again on the best interest of the child.