Like other states, Maryland requires judges to make decisions about child custody and visitation based on the best interests of the child. Unlike other states, however, Maryland law doesn't provide a list of factors courts must consider. Instead, judges are free to look at all of the facts and circumstances of each case in reaching custody decisions.
Below, you'll find answers to common questions about child custody in Maryland. For more information on Maryland divorce issues, see our Maryland Divorce and Family Law page. You can find articles on legal custody, physical custody, the best interests of the child standard, and much more on our Child Custody page.
What is legal custody?
Child custody includes both legal and physical custody. Legal custody involves the right and obligation to make important decisions about the child, about issues like education, religious training, discipline, medical care, and other significant matters affecting the child's welfare.
What is joint legal custody?
If parents have joint legal custody, both parents have an equal right to make legal custody decisions. Neither parent's rights trump the other's.
What is physical custody?
Physical custody means the right and obligation to physically care for a child. The parent who has physical custody provides a home for the child and makes the day-to-day decisions required during the time the child actually spends with the parent having such custody.
What is joint or shared physical custody?
Joint physical custody is in reality "shared" or "divided" custody. If parents share physical custody of a child, the child spends part of the year living with each parent. Shared physical custody may, but need not, be split exactly (on a 50/50 basis). More commonly, the child lives with one parent during the school year and with the other during summer vacation months, or with one parent during the week and the other on the weekend.
Before there is a court order, who has custody?
Legally, both parents are the joint natural guardians of their child under eighteen years of age. This means that both are legally responsible for the child's support, care, nurture, welfare and education. They have equal powers and duties, and neither parent's rights are superior to the other's concerning the child's custody.
What standard do courts apply in making custody decisions?
In any child custody case, the paramount concern is the best interest of the child. The judge must consider the unique facts and circumstances of each case in deciding what type of custody arrangement would serve the child's best interests.
How does the court decide visitation issues and schedules?
The same standard applies: The court must decide what would be in the best interests of the child.
What factors do courts consider in determining the best interests of the child?
It depends on the unique circumstances of the case. The court has the discretion to determine which facts are relevant in each case.
Here are some factors judges consider, based on Maryland case law:
- the fitness of each parent
- the character and reputation of each parent
- what each parent wants regarding custody and any agreements they have made
- the possibility of maintaining family relationships
- the child's preference of the child
- the material opportunities each parent can offer affecting the child's future
- the sge, health, and sex of the child
- the residences of each parent, including opportunities for visitation and geographic proximity of the parental homes
- the length of the child's separation from the parent, and
- whether either parent has voluntarily abandoned or surrendered the child.
Are there factors the court considers in deciding whether joint custody is appropriate?
In addition to the factors listed above, judges will look at the relationship of the child to each parent, and the relationship of the parents to each other, in deciding whether joint custody is appropriate. Divorced parents raising a child together must be able to communicate and make decisions as a team. The factors courts consider in deciding whether joint custody will work include:
- the capacity of the parents to communicate and reach shared decisions affecting child's welfare
- whether the parents are willing to share custody
- the relationship between the child and each parent
- the potential disruption to the child's social and school life created by joint custody
- the demands of each parent's job
- the sincerity of either (or both) parent's request for joint custody
- the financial status of the parents, and
- the benefit to the parents of awarding joint custody.
How important is the parents' ability to communicate with each other?
Clearly, an important factor in deciding joint legal custody is the capacity of the parents to communicate and to reach shared decisions affecting the child's welfare. Indeed, joint custody should not be awarded unless there is a record of mature conduct by the parents, demonstrating an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future.
Do parents with joint custody have to agree about everything?
No. Even parents who are still married to each other often disagree about what's best for their children, on everything from diet to sports, grades, and dating. Parents who share custody need not agree on every aspect of parenting, but their views should not be so widely divergent or so inflexibly maintained as to cast doubt on their ability to share important decisions in the future.
Do mothers have an advantage in custody proceedings?
The law prohibits courts from taking a parent's gender into account or making stereotyped assumptions about gender and parenting (almost always, that women make better parents than men). In Maryland, the legal preference for awarding custody to mothers was abolished by the courts and by the state ERA many years ago.
Still, mothers are awarded custody much more often than fathers. This could be because the maternal preference still survives in the hearts and minds of some judges. More likely, it's because a gender-based division of parental labor is still the norm for most families. If, as is often true, the mother has been the primary caregiver and the father has been the primary breadwinner, a court might reasonably award custody to the mother, based not on her gender but on this established relationship.