Maryland statutes contain a preliminary requirement before deciding custody, which is that the parties must be the presumed parents of the child or children. In terms of case law, there are about 25 different factors that the courts evaluate when determining custody.
In making custody determinations, the standard is always what is in the best interests of the children.
There are two different types of custody in Maryland: legal custody and residential custody. Legal custody is about who has the authority to make decisions regarding the children’s health, religion, education, and general welfare issues. Sole legal custody is when one parent has the sole right to make these determinations, whereas joint legal custody is when both parents must reach an agreement regarding these determinations.
One of the big factors in determining legal custody is that the parents have to be able to communicate. If the parents have domestic violence issues or there is a history of poor communication or refusal to communicate (e.g. parents hanging up on each other, ignoring text messages, etc.), then the courts may not welcome a decision for joint legal custody, but instead opt to give sole custody to one parent. Legal custody always plays a big role when people want to travel with their kids out of the country for vacation. I’ve handled emergency motions for parents who wanted legal custody for the sole purpose of travelling with their children out of the country. In some cases, the courts are responsive to it.
Some court orders set a definite line between what types of decisions would trigger legal custody. For example, it might have to be as serious as whether the child will have a surgery or get braces, or go to private versus public school. Other courts will determine that even minor decisions trigger legal custody. There is also tie-breaking authority, which comes into play when under a joint legal custody situation, the parents cannot agree. Maryland case law says that under such circumstances, one parent can have tie-breaking authority, which means that parent would be able to make the final decision after a deep discussion or mediation over the issue.
Many people don’t see the point in having tie-breaking authority as opposed to sole legal custody. The reason is because it plays out differently when actual issues arise involving the children, but it does seem less common these days. A couple of years ago, tie-breaking authority was thrown around much more than it is now in my experience, but it has not gone away. I think a lot of clients have started to be more reluctant to request it or even accept it, because in some ways, it is viewed as essentially the same thing as sole custody.
Residential custody is the most common and understandable type of custody, which determines where the child will reside on a nightly or day-to-day basis. In determining who will have residential custody or whether is will be shared 50/50, the courts will consider dozens of custody factors. These factors include the fitness of the parents, which is an analysis of whether the parents have mental health or substance abuse issues, whether there is any history of domestic violence, and whether one parent has alienated the other parent. Fitness is a big factor, and it has a less-than-straightforward evaluation that is quite intricate and detailed.
The age of the children, the financial situation, the material aspects of the parent that can provide for the children, the distance between the parties, the communication between the parties, and the stability of each parent’s household will be considered as well. In some cases, only a handful of the factors are triggered, so the courts consider the ones that most apply to the case at hand.
Is There An Age At Which A Child Can Decide Who He Or She Will Live With?
There is no official age at which a child under 18 can decide who they want to live with, but the common belief is that once a child turns 16, they have a right to be emancipated legally. In some cases, that is enough for a judge to lay off a little bit in dictating who has custody, and may let the 16-year-old have more say in where they want to stay.