When you split up with your child's other parent, you'll have to deal with all the questions around child custody—including where the child will primarily live and how much parenting time each of you will have. Even if you were divorced years ago, you might need to change your current parenting arrangements. Read on to learn how Maryland law deals with these issues.
In Maryland there are two basic types of child custody: legal custody and physical custody. With each type, both parents may have joint custody, or one parent may have sole custody.
Legal custody (or "decision-making authority") refers to parents' rights to make major long-term decisions about a child's medical care, mental health, education, religious training, and extracurricular activities.
In most situations, Maryland courts prefer that parents share legal custody, because it enhances the active participation of both parents in the child's life. But it can also lead to conflicts down the road if the parents can't agree. So even when awarding joint decision-making authority, judges may give one parent tie-breaking power or give each parent the ultimate authority over different issues. For instance, one parent might have the right to decide about the child's education, while the other parent has makes decisions about religious upbringing. (Santo v. Santo, 141 A.3d 74 (Md. Ct. App. 2016).)
Still, judges might give one parent sole legal custody in certain situations when the other parent isn't suited to make sound decisions (such as in cases of serious, untreated drug addiction).
Physical custody (or "parenting time") deals with where a child lives and how much time the child spends with each parent. Judges may award physical custody to either parent or to both parents jointly. (Md. Code, Fam. Law, § 5-203(d) (2023).)
Even when both parents have joint physical custody, they rarely have an exactly equal (50/50) share of parenting time. One parent is typically designated as the custodial parent, because the child lives most of the time with that parent or because the designation is necessary for a reason like school enrollment.
When a judge awards sole physical custody to one parent, the noncustodial parent is ordinarily entitled to visitation under the law (more on that below).
Under Maryland law, both custodial and noncustodial parents are entitled to access their children's medical, dental, and educational records, unless a judge orders otherwise. (Md. Code, Fam. Law § 9-104 (2023).)
Parents always have the option of agreeing between themselves on how they'll arrange child custody and visitation. In fact, the vast majority of divorcing parents do reach an agreement at some point in the process, to save the expense and stress of a trial.
In order to have your custody agreement made part of a court order, you'll need to spell out the details in a written parenting plan and submit it to the court.
You can use Maryland's parenting plan tool to create your plan. The form covers issues such as:
You can add additional sheets to the form with any other issues you want to address. Ordinarily, the more detailed your parenting plan, the better chances you'll have to avoid misunderstandings and problems down the road.
Judges will normally accept these agreements as long as they serve the child's best interests.
If you can't agree on a parenting plan, you'll need to submit a "Joint Statement of the Parties Concerning Decision-Making Authority and Parenting Time" to the court. (Md. Rules, Fam. Law, rule 9.204.2 (2023).)
The judge may require you to participate in custody mediation, if it's appropriate and likely to be beneficial, and if a court-connected mediator is available. Generally, mediation will be inappropriate in cases involving abuse or "coercive control" (such as intimidation, manipulation, or threats of force). (Md. Rules, Fam. Law § 9-205 (2023).)
When parents aren't able to reach an agreement about custody, a judge will have to decide for them, based on what the judge believes would be in the child's best interests.
The judge must consider any evidence of domestic violence when making custody decisions. If a parent has commited domestic violence or child abuse, any custody or visitation orders must protect the child and the victim of the abuse. (Md. Code, Fam. Law § 9-101.1 (2023).)
Other than that, Maryland's custody laws don't require judges to consider specific factors when they're deciding what would be best for the children. Over the years, however, the state's courts have identified several factors that judges should take into account, including:
(Taylor v. Taylor, 508 A.2d 964 (Md. Ct. App. 1986).)
Maryland law doesn't presume that either parent is better able to serve the best interests of the child because of that parent's gender.
The state's law specifically says that a parent's disability is not relevant in custody decisions unless the other parent proves that it would affect the child's best interests. Even then, the parent with a disability will have the opportunity to prove that supportive parenting services would mitigate that impact. (Md. Code, Fam. Law § 9-107 (2023).)
Judges in Maryland may consider a child's custody preferences, if the child is sufficiently mature and able to make a reasonable judgment on the issue. Generally, it's up to individual judges to decide when that's the case, based on the circumstances and the reasons children give for their preferences. As a practical matter, the older the children are, the more weight a judge is likely to give their opinion.
After custody orders are already in place, Maryland law specifically allows teenagers who are at least 16 years old to file a petition requesting a change in those orders. (Md. Code, Fam. Law § 9-103 (2023).) But that doesn't mean the judge has to grant the child's request (more below on the standards for modifying custody).
Maryland law doesn't require children to testify in open court about their custody preference. Normally, the judge will interview the children in chambers (the judge's office). The parents won't be present, but the judge may allow the parents' attorneys to observe the questioning. (Marshall v. Stefanides, 302 A.2d 682 (Md. Ct. Spec. App. 1973).)
As long as it's in the children's best interests, parents are entitled to parenting time, even if they don't have physical or legal custody. Courts much prefer that parents work out a visitation schedule between themselves, as part of the parenting plan. That way, they can accommodate their own work schedules and other obligations, as well as the child's activities. As with all custody issues, a judge will have to come up with a schedule if the parents can't agree.
Maryland judges might also order visitation time for a child's grandparents, but only in very limited circumstances.
If it would be harmful for a child to spend time with a parent, the judge will either deny that parent visitation rights or will set limits or conditions designed to protect the child and the abuse victim. For instance, if a parent has been guilty of domestic abuse, the judge may order supervised visitation with a court-approved third party present.
Children aren't allowed to disobey existing visitation orders until they're legally considered an adult (18 or older in Maryland) or otherwise become legally emancipated.
When children are refusing visitation, the custodial parents should do everything they can to get the kids on board. Of course, any parent knows how hard it can be to make kids do something they adamantly refuse to do, particularly as they get older.
But because Maryland law allows older teens (who are at least 16) to request a modification of existing visitation orders, they have the option of taking action to try to change those orders. Either parent can also request a modification (more on that below).
As with an original custody order, you and the other parent may agree on changes to your existing parenting plan, but you'll need to submit your written agreement to the court, along with a motion (written legal request) for a modification. Once you've done that, the judge will modify the order according to your agreement as long as it's in the child's best interests.
Without an agreement, a judge will have to decide on a modification request from a parent (or a teenager who's at least 16). In Maryland, courts prefer to keep existing custody and visitation orders in place. So a judge won't modify an existing order unless:
(Wagner v. Wagner, 674 A.2d 1 (Md. Ct. Spec. App. 1996).)
A common change of circumstances happens when a custodial parent plans to relocate with the child, and the move would affect the other parent's ability to maintain close and frequent contact with the child. That's why custody and visitation orders in Maryland may include a requirement for advance notice of such a move—to give the other parent time to file a modification request. (Md. Code, Fam. Law § 9-106 (2023).) (Learn more about relocation and custody in Maryland.)
When a parent isn't following a court-approved parenting plan, the other parent may file a motion asking the court to enforce the existing custody and visitation orders.
If a judge finds that a parent has denied or interfered with court-ordered visitation, the judge has a number of enforcement options, including:
(Md. Code, Fam. Law Code § 9-105 (2023).)
Maryland also makes it a crime for parents (or other relatives) to abduct a child younger than 16. Child abduction includes taking or hiding the child from the person with legal custody, or keeping the child more than 48 hours after the custodial parent has demanded the child's return. A conviction can result in serious penalties, including fines, jail time, or both. However, a noncustodial parent accused of this crime may file a petition (within 96 hours of the abduction) that seeks to amend the custody order and states that failing to act would have endangered the child's health, safety, or welfare. Then, the parent may use that as a defense against the criminal charges. (Md. Code, Fam. Law §§ 9-304, 9-305, 9-306 (9-306 (2023).)
Be aware that visitation rights have nothing to do with child support. This means that custodial parents aren't allowed to withhold visitation because they aren't receiving support payments on time, and noncustodial parents aren't allowed to stop paying support because they're not being allowed to visit their kids.
Problems with custody and parenting time can have a serious, negative impact on children and parents alike. If possible, it will be less stressful (and less expensive) if you and the other parent can work out your disagreements without heading to court, either on your own or with the help of a mediator.
But if mediation doesn't work or isn't appropriate, it may be time to speak with a local family lawyer who can explain your legal rights and options, and can help you navigate the legal sysem. And if the other parent has taken or kept your under-16 child in violation of custody orders, you should go to the police.