Obtaining a initial order of custody or seeking a modification of an existing order of custody is a legally complicated and often emotionally charged process.. If you are local to the Washington, D.C. metropolitan area contact Wendy Satin Law today. Our attorneys have significant experience in the area of child custody and will help ensure that your child’s best interests are protected, and that both you and your spouse or ex-spouse understand the intricacies involved with the various types of custody which are valid within the state of Maryland and the District of Columbia.
There are two (2) types of legal custody in Maryland and one hybrid type of legal custody: sole legal custody, joint legal custody, and joint legal custody with one parent retaining the “tie-breaking” authority.
Legal custody involves the right and obligation to make long range decisions about education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare. The parent not granted legal custody ordinarily retains authority to make day-to-day decisions regarding the child’s welfare while the child is in that parent’s physical care, whether pursuant to an award of visitation or an allocation of physical custody. This authority would include the right to consent to emergency medical care where there is insufficient time to contact the parent having legal custody, and matters of discipline.
Sole Legal Custody is when one parent has sole authority to make major decisions related to the education, long range decisions about education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare. This does not mean that the parent granted sole legal custody does need to confer, consult, and consider the input of the other parent, prior to making any major decision. The parenting granted sole legal custody must keep the non-custodial parent informed of his/her major decisions.
Joint Legal Custody means that both parents have an equal voice in making major decisions related to the education, long range decisions about education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare, and that neither parent’s rights are superior to the other parent’s rights.
Joint Legal Custody with “Tie-Breaking” Authority is when both parties are charged with attempting to reach shared major decisions related to the education, long range decisions about education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare. However, in the event the parties are unsuccessful in reaching such shared decisions, then one parent will have the “tie-breaking” authority to resolve these matters.
Residential Custody or Physical Custody involves where, and in whose residence, the child shall reside. There are Two (2) types of residential custody: sole residential custody and shared residential custody. The individual having residential custody has the duty to provide a home for the child and to make day-to-day decisions for the child. Residential custody greatly effects the calculation of child support under the Maryland Child Support Guidelines.
Sole residential custody is when the child resides with the custodial parent, overnight, more than Two Hundred and Thirty-Seven nights in any given calendar year.
The Court, in determining custody matters, may consider the following factors:
- Fitness of the parents, namely, the psychological and physical capabilities of both parents, including any conduct and characteristic of a parent which may reflect on the parent’s ability to care for a child and which may have an adverse impact on the welfare of a child. Although the fact of adultery or sexual relationships with others may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous (or homosexual) parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the child’s welfare.
- Character and reputation of the parties.
- Desire of the natural parents and agreements between the parties. The court may modify any provision of an agreement between parents with respect to the care, custody, education or support of any minor child of the spouses, if the modification would be in the best interests of the child.
- Potentiality of maintaining natural family relations.
- Preference of a child where the child is of sufficient age and intelligence to form a rational judgment, but such child’s wish is certainly not controlling.
- Material opportunities affecting the future life of the child. This does not mean that a parent who is poor or otherwise not able to provide many of the comforts of life is thus not to be granted custody. This factor is not so significant absent related facts showing parental unfitness, such as a child not being properly taken care of by its parents within their means or where the financial situation (e.g., parent unable to hold down a job) has made the custodial situation completely unstable.
- Age, health and sex of the child. The “maternal preference” doctrine whereby a child of tender years was presumptively better off with the child’s mother was abolished in Maryland.
- Residences of parents and opportunity for visitation.
- Length of separation from the natural parents.
- Prior voluntary abandonment or surrender.
- Capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare. This is clearly the most important factor in determining whether an award of joint legal custody is appropriate and is relevant also to a consideration of shared physical custody. If the parent’s track record is one of inability to effectively communicate on matters involving the child and there is no strong potential for effective communication in the future, joint custody is not warranted. If the evidence demonstrates the parents do not share parenting values and each insists on adhering to irreconcilable theories of child rearing, joint legal custody is not appropriate.
- Willingness of parents to share custody. However, this does not give a parent veto power over the possibility of joint custody. A caring parent who believes that sole custody is in the best interest of the child may aggressively advance that position throughout litigation, but still be willing and able to fully participate in a joint custody arrangement if that is the decision of the court.
- Fitness of parents, i.e., psychological and physical capabilities of both parents.
- Relationship established between the child and each parent.
- Preference of the child. The reasonable preference of a child of suitable age and discretion should be considered.
- Potential disruption of child’s social and school life.
- Geographic proximity of parental homes.
- Demands of parental employment.
- Age and number of children.
- Sincerity of parent’s request. (Has one parent requested joint custody merely to gain bargaining leverage over the other in extracting favorable financial or property concessions?)
- Financial status of the parents. The court must consider the financial burden of maintaining two homes for a child.
- Impact on state or federal assistance.
- Benefit to parents, to the extent that any such benefit to the parents is likely to redound to the ultimate benefit of the child.
- A parent’s religion and the child’s religious upbringing to the extent it impacts the child’s physical or emotional welfare. It has to be clearly shown that a parent’s religious practices have been or are likely to be harmful to the child before the court will interfere with those religious practices.
- Other factors. A trial judge should consider all other circumstances that reasonably relate to the issue of joint custody.