Divorce and Children

* This is by no means intended to be a complete description of custody rights in the State of Maryland. This page is intended to give a litigant an idea of the custody/support process. A complete description of rights can be found in the Maryland Code and the Maryland Rules. Do not rely on this page alone for guidance; consult with an attorney. This page does not create an attorney-client relationship.

Custody

The question every judge asks him/herself when weighing options regarding the future of a child is: What is in the best interests of this child?

Maryland law recognizes two types of custody: legal custody and physical custody. Legal custody is the power to make important decisions in a child's life; where they will attend school, what faith, if any, they will practice, medical care, and other major decisions. Legal custody is usually shared by parents, and is usually awarded to only one parent where the other agrees to waive it.

Physical custody means just that; which parent has physical custody over the children. Physical custody can be further broken down into two subcategories: sole physical custody, and shared physical custody. Primary physical custody means the child spends 237 or more nights of the year with one parent. Joint physical custody means the child spends at least 128 nights or more with both parents. The practical effect of primary versus joint physical custody is differences in the calculation of child support.

Primary Physical Custody

The majority of domestic cases that go to trial concern the custody of a child. When it is clear that a joint physical custody arrangement is impossible, a judge must ultimately decide who the children should primarily reside with. There is no maternal preference in the State of Maryland, although as a practical matter, women have a distinct advantage in custody disputes.

A judge considers the following factors when awarding primary physical custody:

(1) fitness of the parent;
(2) the character and reputation of the parent;
(3) the desires of the natural parents;
(4) the potential for maintaining natural family relations;
(5) the preference of the child (depending on age);
(6) the material opportunities that can be provided by the parents;
(7) the age, sex, and health of the child;
(8) the residences of the parents;
(9) the length of the separation of the parents;
(10) any evidence of abuse by either parent;
(11) the existence of prior voluntary abandonment;
(12) where adultery is proven, whether adultery has a detrimental effect on the child.

Joint Physical Custody

This arrangement means that the parents share physical custody of the child; the child spends at least 128 nights under both parents' roofs. Obtaining a joint physical custody order is not guaranteed even if both parents agree to the arrangement.

When considering joint custody, a judge will weigh the following twelve criteria:

(1) capacity of the parents to communicate;
(2) willingness of the parents to share custody;
(3) fitness of the parents;
(4) the relationship between the child and each parent;
(5) the preference of the child (depending on age);
(6) potential disruption of the child's school and social life;
(7) the geographical proximity of the parental homes;
(8) the demands of parental employment;
(9) age and number of children;
(10) the sincerity of the parents' request;
(11) financial status of the parents;
(12) the impact, if any, on state or federal assistance.

If the parents are unmarried, the child is considered the child of the mother. In order for the father to assert rights to the child, including custody and visitation, paternity must first either be admitted or scientifically established. Once paternity is established, neither parent will be given a custodial preference based solely on gender.

Custody Agreements

Parents can orally agree on custody/visitation of the child and enter into a consent order by which the terms of the agreement are signed by a judge and become legally enforceable. However, the agreement will be reviewed thoroughly by the judge, who has the final say as to whether the agreement will become legally enforceable. It is very important to be as specific as possible in custody/visitation agreements so as to avoid future conflicts.

Custody Modification

If a permanent order has been entered in the case, it is the burden of the parent seeking modification of custody to prove that a change in the order is in the best interest of the child. Courts want to maintain stability in the lives of the child; the status quo can be difficult to defeat unless there is a material change in circumstances. The parent seeking the modification must show that not only can he/she provide as good a home as the custodial parent, but a better one. A child aged 16 or older can seek their own modification of custody, however, the child carries the burden to prove that a change is in their best interest.

Tax Dependency Exemption

The parent who enjoys primary physical custody, or the majority of custody in a joint physical custody arrangement can claim the tax exemption for the child. The parents can agree to alternate the tax credit exemption if the parent with custody signs IRS form 8322, Release of Claim of Exemption. Regardless of whom is taking the tax exemption for the child, the custodial parent may still file as "head of the household"

Child Support

If one parent is awarded physical custody of a child, and has less financial resources than the other parent, the custodial parent will receive child support. The amount a parent can receive for child support is set out in the Maryland Code in the Family Law article. Maryland law uses two types of child support: (1) when a parent is awarded primary physical custody; (2) when the parents share joint physical custody.

Child support is mandated by law. Obligations for child support survive remarriage, bankruptcy, and move out of state. In addition, child support payments are not tax deductible. Generally speaking, child support obligations terminate upon a child's eighteenth birthday, although Maryland courts have upheld extended child support where the child's needs are extraordinary, or a promise for additional support has been made and the paying spouse has sufficient financial resources to honor the promise.

Child support may be modified if there is a change in circumstances, such as an increase or decrease in either party's salary, or an increase in the costs of raising the child such that the support payments according to the guidelines would change by 25% or more. If this condition is met, the court will entertain a petition for modification of child support. Otherwise, courts will not hear petitions for modification.

A parent cannot avoid their child support payment by quitting their job. This is known as voluntary impoverishment. A court will determine whether the debtor spouse purposefully made themselves unable to pay their child support obligation. If the court determines that the debtor parent did indeed voluntarily impoverish themselves, the court may hold that parent in contempt and calculate guidelines based on that parent's likely earnable income.

If a child spends 128 days or more overnight with one parent, and the remaining time with the other parent, a different set of child support guidelines are used to account for a shared physical custody arrangement. The Office of the State's Attorney is involved with the enforcement of child support, and criminal sanctions can be brought against a parent who has the ability to pay but does not.

Visitation

It is in a child's best interest to have a relationship with both of his/her parents. This interest is met by visitation with the non-custodial parent. A court usually sets a visitation schedule. In Maryland, a typical visitation schedule would be one or two weekends a month, custody alternating on holidays, a week during Christmas break (if the child is in school), alternate spring breaks (if the child is in school), and a block of two weeks or more during the summer. It is important to point out that a non-custodial parent cannot withhold child support if the custodial parent is violating a court's visitation schedule order.

It is exceedingly rare for a non-custodial parent to be denied visitation. Instead, a court will impose conditions on visitation where there is proof of abuse or neglect. Those conditions can be a combination of the following: (1) order the party to refrain from the offensive conduct; (2) order supervised visitation through the Department of Social Services or other such state agency; (3) order that the visitation occur only within the custodial parent's home.

Jurisdiction

There have been a rising number of cases in which the proper jurisdiction of custody, support, and visitation issues is hotly debated. For example, if a couple is legally divorced in Maryland, but then one parent moves with the children to New York and lives there for three years continuously, which state should litigation of visitation and support issues occur? The UCCJA, or Uniform Child Custody Jurisdiction Act, has been adopted in one form or another by all fifty states. The UCCJA states that jurisdictional preference lies with the state in which the child has called home for at least the last six months, and that there is a significant connection between the child and the state. A state may modify another state's order when the child and one party is physically present within the state and it is clear that no other state has jurisdiction under the UCCJA.

Enforcement- Child Support

If a parent fails to make child support payments as required by Maryland law, the party entitled to that child support has several options. First, every county in the State has a child support enforcement agency which will seek child support on behalf of the parent to whom support is owed for the modest fee of $20. This fee may be waived if a support entitled parent is on public assistance.

Second, the support-entitled spouse can seek the court to order a wage assignment. This order requires the paying spouse's employer to withhold support monies from his/her paycheck. This is an effective method if the paying spouse holds steady employment.

Third, the support-entitled parent can file a civil contempt petition with the court in which the child support order was entered. The parties will have a hearing to determine whether in fact the parent failed to make those payments. A paying spouse will not be held in contempt if he/she can prove that they did not have the financial capacity to make payments. However, this defense, even if successful, will not extinguish the owed child support. If the paying parent fails to appear at this hearing, a judge will issue a bench warrant for his/her arrest. At the hearing, the court will require the non-paying party to immediately begin making payments. The threat the court holds over the delinquent parent is the threat of incarceration, although the threat is rarely carried out. However, in cases involving gross violations, the non-paying party can be jailed with an open-ended sentence, terminating only when proper payment is made.

Fourth, the support-entitled parent may seek a writ of execution, which provides for the seizure of the debtor parent's assets.

Fifth, the support-entitled parent may seek criminal charges against the debtor parent by requesting the help of the Office of the State's Attorney. the State may seek an indictment of the debtor-spouse, which, upon conviction, may result in a criminal record, incarceration, or supervised probation.

In addition, the debtor spouse may be required to pay the attorney's fees of the support-entitled spouse necessary to secure child support, and pay interest of as much as 10% on child support arrears.

Enforcement- Visitation

If a parent wrongfully withholds visitation from a non-custodial parent in violation of a visitation order, the parent being denied visitation can file a civil contempt petition. Similar penalties apply as described above. If a child custody order is violated, and the child is not returned to the custodial parent within 48 hours, the visiting parent may have committed the following crimes: (1) if the abducting parent remained in the State- misdemeanor: $25 fine and up to 30 days imprisonment; (2) if the abducting parent left the State- felony: $250-$1,000 fine and 30 days to 1 year imprisonment. There is a narrow exception: if it was necessary for the abducting parent to keep the child in order to avoid abandonment or abuse of the child by the custodial parent. The abducting parent must prove this danger and file a petition within 96 hours.

Ex Parte & Protective Orders

Maryland law provides for the protection of parents and children who are the victims of domestic violence. Domestic violence is defined as assaultive behavior towards a spouse or against children by a family member. A party may seek emergency protection by way of filing an ex parte petition in either the Circuit or District courts. An ex parte order may be granted without the assaultive party being present. An ex parte order can require the assaultive party to refrain from the action, order the assaultive party to leave the house, stay away from the victim's house, school, or work, or any combination of the preceding. A protective order hearing must be held within seven days of the issuing of the ex parte order. An ex parte order may be extended as long as thirty days to allow for necessary service of the notice of the protective hearing on the assaultive party.

In the protective order hearing, the moving party must prove, by clear and convincing evidence, that the assault actually occurred. Once a judge is satisfied that the evidentiary burden is met, a protective order can be passed ordering any combination of the following: (1) refrain from the assaultive behavior, (2) vacate the premises and award use and possession of the premises to the moving party, (3) a stay away order requiring the assaultive party to avoid the home, work, schools, etc., and (4) award emergency family support, which is temporary child support. The protective order may last up to one year, and may be extended an additional six months by a judge.

Any violation of the ex parte order or protective order can result in a criminal contempt charge, which carries a fine and a potential jail sentence.