by on Child Custody Process
In most of Maryland, the Child Custody Process, (which parent will get custody) is one of the biggest fights. Some couples facing divorce are able to discuss the issue of child custody and reach an agreement; however, most are unable to agree on all terms of child custody and will litigate the issue of child custody in their Maryland divorce with children. In this article, we will examine the child custody process in Maryland and hopefully, you will gain insight into the process ahead in your divorce case. By understanding the process of a child custody case, you will be better prepared to face the road ahead in your child custody case or divorce with minor children.
Types of Custody in Maryland
There are multiple custody arraignments in Maryland child custody cases. The best place to start a discussion of child custody in Maryland is the distinction between legal custody and physical custody. Legal custody is the less often considered concept. It refers to the parent that has the authority to make important decisions on the child’s behalf, i.e. religious upbringing, education, medical, extracurricular, discipline, and other issues related to the overall well-being of your child. Physical custody is more obvious, it refers to who your child lives with or spends overnights.
Types of Legal Custody in Child Custody Process
Joint Legal Custody:
Joint legal custody is very common in Maryland, it is an arraignment where both parents are included in important decisions on the child’s behalf, including healthcare decisions, education, etc. Even in joint legal custody arrangements, one parent is typically identified as the primary decision maker that decides the tie, if the parties are unable to settle an issue.
The primary joint custodial parent or primary custodial parent is the party that makes the ultimate decision in the event of a dispute. Say the parties agree that their child will play soccer, but cannot decide on a recreational team or competitive travel team. The primary custodial parent will be able to make the decision, over the objection of the other custodial parent once a discussion has taken place, so long as that parent has primary decision-making authority over extracurricular activities.
An important note, each issue regarding legal custody can be divided between the parties, i.e. if one parent cares more about education that the other parent, then he or she could be the primary decision maker on school and the other parent could be the primary decision maker on extracurricular activities or religious upbringing or medical treatment.
Sole Legal Custody:
sole legal custody is difficult to achieve if both parents are involved in the child’s life. In sole legal custody, only the custodial parent has the authority to make important decisions impacting the overall well-being of the parties’ child.
The parent that does not have sole legal custody will be unable to select the school attended, serious medical treatment provided, or sports played by their child without permission from the sole custodial parent. However, the non-custodial parent is still able to take the child to the doctor or make less impactful or more urgent decisions without always conferring with the sole custodial parent.
Types of Physical Custody
Joint Physical Custody:
the child will spend a pre-determined amount of time with each parent throughout the school year, summer and winter breaks with joint physical custody. The parties may deviate from the specific schedule by agreement; however, each parent is entitled to seek relief from the Court when their physical custody time is interfered with by the other parent.
Most physical custody orders in Maryland are a version of joint physical custody. However, there are multiple versions of joint physical custody impacting the amount of time a child spends with each parent and the specifics of the visitation schedule.
Sole Physical Custody:
sole physical custody is just what it sounds like, the child lives with one parent only. The other parent may have visitation with the child; however, the child will not have a substantial period of over-nights with the non-custodial parent in sole physical custody.
Split Custody:
although it is considered unusual and rarely implemented, split custody is an option best suited for some families. In split custody, the couple has more than one child and each parent is awarded primary custody of at least one of the children with different visitations schedules for different children.
Bird Nesting:
Bird nesting is an unusual custody method, in which the children remain in the marital home or family home full-time and the parents rotate in and out of the family home on a specific schedule. This arrangement is sometimes used during a divorce to ease the transition for the children; however, it is rarely used as a physical custody agreement or physical custody order once a divorce is finalized.
How is Child Custody Decided?
Most child custody cases are eventually decided by an agreement of the parties called a settlement or agreed order. Oftentimes, it will take many attempts or back-and-forth by the parties for an agreement to be reached. In this process, it is very important that your chosen divorce attorney or child custody attorney provides you with a clear understanding of the risks and rewards of fighting over child custody versus reaching an agreement.
One of the biggest benefits of an agreed child custody order is the fact you have control over the outcome. The earlier you identify to yourself and your child custody attorney, what you want the custody of your children to be, the easier the process will be for you. Now that you are aware of the elements of child custody, you can begin to evaluate what matters most to you.
For some parents, having final decision-making authority is crucial. However, other parents want to ensure they spend a substantial amount of time with their children on a routine basis, or your children are will you on specific days in the year. Whatever the issues that matter most to you, the earlier you can evaluate and determine the child custody arrangement you want and what you are willing to settle for in your child custody case, the better.
Temporary Orders in Child Custody
Early in many contested child custody cases, the parties will appear before the court for a temporary order hearing. During the temporary order hearing, the parties with the assistance of their divorce attorney will present their evidence and argument for the temporary custody order they want during the divorce.
Although these orders are temporary in nature, it is very important to fight for the visitation schedule and temporary custody orders that you want for your children. Oftentimes, the status quo or new normal established at this phase will last the rest of the divorce and into child custody beyond divorce. Do not overlook the importance of this crucial phase of your divorce with minor children. By establishing the physical custody schedule you want at this point, you increase the chance of it remaining in place beyond the final divorce order.
Guardian Ad Litem and Child Custody
In some contested child custody cases, an attorney will be appointed by the court to represent the interests of the child. These attorneys are called Guardian Ad Litem or GAL. The GAL is supposed to be a neutral third party that evaluates the parents and the children on multiple bases, in order to form a report to the Court concerning the best interest of the children for custody.
The selection of a specific GAL in your divorce with minor children or a contested child custody case is very important. GALs are people and oftentimes they tend to lean towards one perspective or another; therefore, it is important to speak in detail with your chosen divorce attorney to identify and retain the GAL that will be fair to you and your interests related to custody of your children.
Mediation in Child Custody
Most family law judges have more cases on their docket, cases assigned to one specific judge than the court has time to hear. Therefore, different systems have been put in place to assist parties in reaching a resolution without a lengthy trial before the court. One of the most common of these tools in contested child custody cases or divorces with minor children is mediation.
Mediation in child custody cases is an opportunity for each party to appear with their divorce attorney before a neutral and often very experienced family law attorney and present their case for the mediator, a third-party, to evaluate. During and after mediation in a child custody case or divorce with minor children, the mediator will give his or her opinion on what he or she thinks is likely to be the outcome at trial, if the case were to proceed to trial.
The mediator will discuss the law and its implications on the facts of the case at hand and make recommendations for resolution to the parties. Oftentimes, the mediator will present a resolution that is somewhere between what each party wants, in an attempt to find a middle ground that each party is willing to accept with finality. Again, an agreed resolution before a mediator provides certainty, versus the unknown of what the court will order in a custody trial.
Another benefit to considering mediation in a contested child custody case or contested divorce with children is that an agreement at mediation may be enforceable in court. Sometimes a party will have buyer’s remorse after mediation, before a court order can be entered, and will refuse to enter an order to the agreement at mediation. However, your divorce attorney can seek to have the court enforce the agreement at mediation, which may save you the pain, heartache, and money of the uncertainty of a contested divorce trial.
Child Custody Trial
The family law judge, over your divorce with minor children, will schedule a trial in your divorce or child custody case, if the parties do not reach an agreement. The family law judge has the authority and obligation to decide all unresolved issues in your divorce or child custody case at trial. Therefore, any issue the parties can agree upon can be excluded from trial, which leaves only the unresolved matters for the court to decide in your divorce with minor children.
In Maryland, the family law court is required to consider certain elements in a contested child custody case or when custody is contested in a divorce. Maryland, as with most states, determine contested child custody cases based on what the court determines to be in the best interest of the child. This term or standard can seem all-encompassing and very daunting to parents facing divorce. However, it is intended to afford the court much room for interpretation and to find equity in deciding the physical custody and legal custody that is best for the children in the middle of the specific divorce before the court.
The outcome in a contested child custody matter may not be apparent to the parties or the court at the beginning of a custody battle. However, the following factors are commonly used by courts in custody fights to help determine the arrangement for custody that serves the best interest of the children:
- The relationship between the children and each individual parent.
- The physical health and mental health of each parent and how, if any, health problems will impact the parent’s ability to provide care for the children.
- The potential for spousal or child abuse by each parent, including any past acts of abusive tendencies or instances of abuse.
- The criminal history and/or substance abuse history, if any, of each parent and other potentially harmful habits or behaviors of each parent.
- Each parent’s apparent ability to meet the needs of their children, including financially, home stability, living arrangements, the safety of the environment, and decision-making ability of each parent on behalf of their children.
When the court believes the children are mature enough, the court may inquire as to the children’s preference on where to live. However, the weight, if any, given to the children’s preference is depended upon the judge’s propensity to listen to the children and the age of each child.
Maryland law affords that the preference of any child aged 12 and above must be considered by the court. However, the court is not bound by the child’s preference and the court must determine whether or not the child is making an intelligent choice, prior to considering the child’s preference in determining child custody.
The Child Custody Order
At the conclusion of a contested child custody trial or divorce trial with minor children, the family law judge will enter a custody order that is binding on the parties. The court’s order will decide legal custody and physical custody, including a custody plan that details when children will be with which specific parent. Although final in district court, a parent may file an appeal to seek to have a higher court reconsider and potentially overturn a district court family law judge’s decision on legal custody, physical custody, and any other issues before the court.
Once custody is decided by a court, the parties are bound by the court’s order. In Maryland, once six months have passed and upon the showing of a material change in circumstances, a party can seek to modify an existing court order regarding child custody. The “permanent, material, and substantial change in circumstances is a heavy burden. You cannot simply argue that you are the better parent, a change must have occurred between the court’s initial order and the request to modify. Therefore, as stated above, it is very important to seek to obtain the legal custody and physical custody order that is best for you and your children in the initial child custody determination.
Your Next Steps
When you are facing divorce or a child custody dispute, it is important to know your options and the laws that apply to your situation. We hope this guide to the child custody process in Maryland has answered many of your questions. We encourage you to visit other pages of our website for more information and know Divorce With A Plan shares this information as we care deeply about those facing divorce with children.
