Maryland actually follows two common laws, or case laws, that dictate how custody is determined based on certain factors. The statutes don’t really possess those different factors for determining custody, though they do include preliminary requirements before you can decide custody (one example being that you have to be the mother or presumed father of the child). After you get into the case law, there are 25 or so different factors that the courts evaluate.
There are two different types of custody in Maryland. The first is legal custody, which is decision-making about health, religion, education, and general welfare issues. There are multiple types of legal custody. You might have sole legal custody where you are the primary parent or, in other words, the parent who has the sole right to make the determination about decisions on issues and just tell the other parent what they have decided. In joint custody arrangements, the parents have to make an agreement before they can make decisions on those types of issues, and some court orders set a definite line between what types of decisions would trigger legal custody. Some have to be more serious decisions (like getting a surgery or braces) or major changes at school (like private school versus public school). Other court decisions do target more day-to-day legal custody decisions that both parents want to be involved in. Sometimes, a joint agreement has to be exercised before even minor decisions can be made. Legal custody always plays a big role when people want to get a passport and travel with their kids out of the country for vacation. I’ve had emergency motions where they want legal custody just for that purpose, and the courts are sometimes responsive to it.
One of the big factors in determining legal custody is the parents’ ability to communicate. If there have been domestic violence issues, a history of poor communication, or a refusal to communicate at all, the courts don’t feel as warm to a decision for a joint legal custody. Let’s say the parents are always hanging up on each other and not answering each other’s texts about the kids and things of that nature. The court will just give custody to one parent.
So, that’s legal custody, and then, there is also tie-breaking authority, which is more complicated. If the parties can’t come to an agreement in an issue, Maryland case law says that one party can have tie-breaking authority, meaning that parent has the ability to make the final decision after they’ve had mediation on the issue or deep discussions. Someone with tie-breaking authority could essentially have the ability to make the final decision, which is a controversial option in many cases now. Many clients wonder what the point is. Why don’t you just give me sole custody? Why would I have to have tie-breaking authority when you can just give me sole? Tie-breaking authority can play out differently when actual issues arise involving the children. A couple of years ago, tie-breaking authority was thrown around much more than I’ve seen recently, but I’m not saying it’s gone away. A lot of clients have started to be more reluctant to request it or to even accept it because it is essentially the same thing as sole custody in some ways.
The other type of custody is residential custody, the most common and understandable type, which determines where the child resides on a day-to-day basis. There are different types of residential custody, with one being shared, which is 50/50. The courts look at various factors to determine residential custody. Those factors include the fitness of each parent and whether they have a history of mental health issues, domestic violence, or substance abuse issues. They look at whether they are alienating the other parent or doing anything that seems to be unreasonable, inadequate, or mean-spirited. Fitness is a big factor because it has its own evaluation, which is not straightforward. It’s an intricate and detailed evaluation in cases where there is evidence of some of those circumstances.
Then, the court looks at the age of the children, the financial situation, and the material aspects the parent can provide for the children. They look at the distance between the parties and, again, how well they can communicate. These types of factors weigh in, though not all of them are triggered in each case. In some cases, only a handful of the 25 or 30 factors are triggered. The court takes the factors that will most affect the stability of the kids. That’s the standard when making these best interest determinations. What is the stability of the household and their ability to provide for the child? That, coupled with other factors, will form the basis of the court’s evaluations or analysis.
There are often modifications of custody when someone wants to change a previous custody order. In order to modify a case, you first have to prove that there has been a material change in circumstance that affects the general welfare of the child. That is a complication prior to even getting to the evaluation you are looking at with those factors and case law. In some cases, the kid has done something as they’ve gotten older that one parent doesn’t like or something. The court probably won’t find a material change and will deny that request. Even in situations where a serious problem with a child has already existed for several years, those cases are usually not accepted for modification by the court if one parent wants to change custody.
If a material change has been found, the second step in the modification process is a determination of the child’s best interest. These modification cases can be very difficult. But that’s after a divorce. Modification won’t come into play when a couple is divorcing unless there is a previous custody order. I had one case where the parents had a custody order, got married, and are now divorcing, so they have to modify one of their custody orders. Most modifications are post-divorce.
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