Maryland Divorce FAQ’s – Parenting

This is about custody and visitation after divorce in Maryland, including the effect on custody and visitation of misconduct of the parents, mental health of the parents, and the rights of grandparents in Maryland.

This information is from James J. Gross, the DivorceInfo Network Lawyer for Maryland. Click here to visit his firm’s web site.

How does custody get decided as between a parent and a third party?

A child’s biological parent will usually win a custody fight with a third party, like a step parent or a grandparent, because the law supports and favors the natural bond between a child and a parent. However, if a third party is able to prove that the parent is unfit for parenthood, say because of neglect or abuse of a child by the parent, then the court will grant custody to the third party. And the natural parent can voluntarily relinquish their parental rights by giving up custody to a third party adopting the child.

How does custody get decided as between parents?

Maryland courts decide custody between parents based on the best interests of the child. Taylor v. Taylor, 306 Md. 290, 508 A.2d 964 (1986) set forth the following factors that the court uses to decide which custody arrangement is in the best interests of the child:

* capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare;

* willingness of the parents to share custody;

* fitness of the parents;

* relationship established between the child and each parent;

* preference of the child;

* potential disruption of the child’s social and school life;

* geographic proximity of parental homes;

* demands of parental employment;

* age and number of children;

* sincerity of parent’s request;

* financial status of the parents;

* impact on state and federal assistance;

* benefit to parents; and

* any other factor or circumstance related to the issue.

There is no court in Maryland where the mother has an automatic advantage for custody. In fact, fathers win approximately 50% of contested custody cases. However, in settled custody cases, fathers are the custodial parent only about 10% of the time.

What’s the terminology for custody?

Custody consists of two components in Maryland — legal custody and physical custody. Legal custody means long term parenting decisions, such as the doctors the child sees, religious teachings or whether child attends public or private school. If you have joint legal custody, it means you consult with one another and make decisions together. If only one parent has legal custody, it means that parent makes all the key decisions affecting the child. Physical custody (sometimes called residential custody) means where the child resides most of the time. Shared physical custody means the child lives with each parent about half of the time. Primary physical custody means the child lives with one parent most of the time.

Is there a presumption in favor of not changing custody arrangements?

There is no presumption, but there is a policy of leaving well enough alone. The policy is to disrupt the routines of the child as little as possible. If a particular custody arrangement is working, no judge wants to do something that might have an adverse impact. The court always has the power to change custody when that is in the best interests of the child. However, there must be an unforeseen change in circumstances before the court will change a particular custody arrangement.

What effect does the misconduct of one of the parents have on custody?

Fault is not a factor in determining custody unless it might harm the child. For example, adultery might make you a bad spouse, but it does not make you a bad parent. However, if your lover has abused you or the child, then the court is not likely to grant you custody.

The same is true in cases of cruelty, drunkenness, marijuana use, homosexuality, and religious beliefs and practices. In determining custody, the court will not consider ether questionable or immoral conduct occurred, but rather what is the danger to the children.

What effect does the mental health of one of the parents have on custody?

Because they bear on the party’s ability to parent, serious emotional disturbance and psychiatric disorders are relevant factors in custody determinations. Sometimes on parent will try to gain an advantage in a custody fight by claiming the other is seeing a therapist or taking medication for depression. But who is the responsible parent, the one seeking treatment, or the one who does not think he or she has a problem?

What effect does the preference of the child have on custody?

The preference of a child is one of several considerations in custody determinations. Unfortunately, it puts the child in the position of having to choose one parent over the other. A judge will listen to the testimony of a child, usually in chambers, with only the court reporter present. The judge will give greater weight to the preferences of an older child than a younger child in deciding custody.

A good “rule of thumb” is that below age eight, a child’s preferences will not be give much weight by the judge. At age 15 or above, the preferences of the child will be given almost persuasive weight in a contested custody determination. Between ages 8 and 15, there is a sliding scale where the weight given the preferences of the child will vary depending on the age, maturity, and perceived independent judgment of the child.

How does visitation get set?

If the mother and father can agree on visitation, the court will usually approve the plan. If the mother and father cannot agree, the court will establish a visitation schedule for them.  A typical pattern is alternating weekends, a few weeks in the summer, and alternating holidays. If the parties are far apart, this pattern will not work. The pattern then calls for fewer but longer visitation periods. If the parties live very far apart, you must deal with who will provide or pay for transportation. The courts encourage visitation except in very extraordinary circumstances.

Is there such a thing as “standard visitation”? If so, what is it?

There is no standard visitation schedule. However, Montgomery County has adopted Effective Parenting Guidelines, a document which has the following “sample visitation schedule” when the parties live within one hour driving distance of each other:

* Visitation by the non-residential parent on alternate weekends from Friday at 7:00 p.m. to Sunday at 7:00 p.m. (The beginning and ending times may be varied to accommodate the work schedule of the parents). Visitation on one Evening during one of the weekdays between alternate visitation weekends from ___p.m. to ___p.m. ( one hour prior to the child’s normal bedtime).

* Mother’s day the child will be with the mother. Father’s day the child will be with the father. In the event this provision requires the child to be with the residential parent when it is the non-residential parent’s normal weekend visitation, the non-residential parent will return the child by 10:00 a.m. on that day. In the event that this provision requires the child to be with the non-residential parent on a day not falling within the non residential parent’s visitation weekend, the non-residential parent may have visitation from 9:00 a.m. to 7:00 p.m.

* The parents will alternate having the child with him or her on the child’s birthday, and each parent shall be entitled to have the child with him or her on that parent’s birthday.

* Holidays – the guidelines provide for a detailed alternating holiday schedule.

Is there a standard visitation pattern when the non-custodial parent is in a different state from the child? If so, what is it?

The Effective Parenting Guidelines have another “sample schedule” for parties living more than one hour apart by driving time. In that case, visitation is as follows:

* Vacations – The non-residential parent will have an extended visitation each summer to coincide to the extent possible with that parents vacation from work for seven (7) weeks during the child’s summer vacation from school, beginning on the first Sunday after school lets out to the Sunday seven (7) weeks later, subject to the residential parents right to visit with the child for one (1) weekend during the extended visitation period.

* Weekends – The non-residential parent shall have visitation with the child for 48 hours on the first full weekend of the following months (the beginning and ending times of which may be varied to accommodate the work schedule of the parents): February, March (only if the non-residential parent does not have spring vacation), April (only if the non-custodial parent does not have spring vacation), May, September, October and November (only if the non-residential parent does not have Thanksgiving visitation). The objective is to enable the non-residential parent to have visitation with the child for 48 hours each month. The residential parent is encouraged to permit the non residential parent to select three-day weekends, but, in any case, in alternate years, the non-residential parent is entitled to have said visitation on all holiday weekends (example, President’s day in February, Memorial Day in May, Labor Day in September, Columbus day in October, etc.) and extend the visitation through the holiday.

* Other Holidays. The non-residential parent may visit with the child on: (1) alternating Thanksgiving and spring vacations from school, with spring vacations from school in even years, Thanksgiving vacation from school in odd years; (2) Christmas: residential parent on Christmas Eve, 9:00 a.m. to Christmas Day until 2:00 p.m.; non-residential parent on Christmas day at 2:00 p.m. until the night of the end of New Year’s Day at 7:00 p.m. Parents will make appropriate provisions for other holidays and religious observances regularly observed by the parents and child; for example, Hanukkah or Rosh Hashanah.

* Other Times. – At all other reasonable and seasonable times, as the parents may agree. In addition, if the residential parent of the child is in the state or near the geographical location of the non-residential parent or the non-residential parent is nearby the child, the other parent will be notified and each parent will attempt to arrange visitation if at all possible.

What rules govern cases where the custodial parent wants to move away with the children?

Unless you have addressed relocation in a Separation Agreement, a move out of the area is considered a change in circumstances. To keep a parent from relocating with the children, the other parent files a petition with the court to modify custody, visitation and child support. The court holds a hearing and each side presents evidence of environmental, educational, social and cultural opportunities and conditions in both places. The judge then decides whether it is in the best interest of the children to stay in Maryland or not.

What visitation rights do grandparents have, if any?

Grandparents have the right to petition the court for visitation rights in Maryland. Recently, the U.S. Supreme Court has held that a parent’s proposed visitation schedule, unless it denies visitation entirely, is presumptively better than a grandparent’s proposed visitation schedule.

Other issues in Maryland:

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