Maryland Child Custody & Visitation

Learn how child custody is determined in Maryland, how you can modify custody orders, and more.

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 child custody laws do not 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. If you still have questions after reading this article or if you're going through a divorce or breakup and you need help understanding how custody works, you should speak with an experienced family law attorney near you.

You can also find helpful videos, links, and articles related to child custody on the Maryland Courts website.

Types of Child Custody in Maryland

In Maryland, courts break custody into two categories: physical and legal. Additionally, judges can award sole physical or legal custody, joint legal or physical custody, or a combination of both.

What is legal custody?

Legal custody involves the right and obligation to make important decisions about the child. Common issues include 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. If the parents disagree on how to handle a significant issue involving the child, the parents will need to file a motion and ask the court to decide for them.

What is physical custody?

Physical custody means the right and obligation to care for a child physically. 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. If the court awards one parent sole physical custody, the judge will typically create a parenting time or visitation schedule for the noncustodial parent and child.

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. In other words, both are legally responsible for the child's support, care, nurture, welfare, and education. Parents have equal powers and duties, and neither parent's rights are superior to the other's concerning the child's custody.

How Courts Determine Custody and Visitation in Maryland

In any child custody case, 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.

The same standard applies for visitation issues: the court must decide what would be in the child's best interest. An important consideration when determining visitation schedules is whether the non-custodial parent has ever committed child abuse or domestic violence. If so, the court may restrict or otherwise limit visitation. (Md. Code Ann. Fam. Law § 9-101.)

For example, the judge may require a third-party supervisor during the visits or prohibit overnight visits between the child and parent. In other cases, it may be more appropriate for the court to restrict visitation to court-sanctioned facilities.

What are "Best Interest 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 (if old enough and mature enough to form an opinion)
  • the material opportunities each parent can offer affecting the child's future
  • the age, 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. (Montgomery County v. Sanders, 38 Md. App. 406 (1978))

Are there factors the court considers in deciding whether joint custody is appropriate?

In addition to the factors listed above, when deciding whether joint custody is appropriate, the court will also consider the child's relationship 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 the child's welfare
  • whether the parents are willing to share custody
  • the child's relationship with each parent
  • whether joint custody will disrupt the child's social and school life
  • 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. (Taylor v. Taylor, 306 Md. 290 (1986))

How important is the parents' ability to communicate with each other?

Clearly, an important factor in deciding joint legal custody is whether the parents can communicate and reach shared decisions affecting the child's welfare. If you and the other parent have a history of fighting and disagreements over the child, the judge is less likely to award joint custody. Additionally, the judge must evaluate the parents' potential for proper communication and decision-making for the child 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. For example, married parents with the best relationship with each other can still disagree on a child's diet, sports, grades, and dating. Parents who share custody need not agree on every aspect of parenting. Still, 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. In other words, both parents must be willing to communicate, negotiate, and sacrifice when it comes to the child's best interests. Otherwise, joint custody will lead to frivolous lawsuits and clog the court's docket.

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 Equal Rights Amendment (ERA) many years ago.

Still, courts often award custody to mothers more than fathers—which 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 this established relationship.

That said, the standards for child custody apply equally to both parents. Custodial mothers (or fathers) can lose custody if the court finds abuse, neglect, or any other factor that may endanger a child's health or emotional wellbeing.

Modifying Child Custody Orders in Maryland

The court has the power to modify custody or parenting time. (Md. Code Ann. Fam. Law § 1-201.) However, courts favor stability for children, so the judge won't change an existing custody or visitation order unless the requesting parent can demonstrate that it's in the child's best interest. Additionally, you'll need to prove that, since the last order, there has been a substantial change of circumstances that make the current order ineffective. (Neuwiller v. Neuwiller, 262 A. 2d 736 (1970).)

In Maryland, children who are at least 16 years old can also request a change of custody. The child can file a motion to change custody without a guardian, but the child must demonstrate that a modification is in the child's best interest. (Md. Code Ann. Fam. Law § 9-103.)

For more information on child custody and visitation, visit The People's Law Library of Maryland.

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