The majority of family law cases in the state of Maryland are resolved by agreement. When the parties do not agree, a contested divorce is resolved by a judge, following a trial. The judge has the final say in all issues the parties cannot resolve, including custody of the children. A contested custody case is complicated and it is important to understand key concepts.
Legal Versus Physical Custody
The State of Maryland has two types of custody, legal custody and physical custody.
Legal custody establishes which parent makes decisions about important issues for their child. This includes decisions regarding medical care, education, discipline, religion and other important, long term matters. Legal custody is not determined by where a child lives.
In cases where one parent has sole legal custody, that party makes all of the long-term decisions without necessarily consulting the other parent.
In cases where the parties have joint legal custody, the parents make long-term decisions together, with equal authority. When the parents have joint legal custody, they must set aside their differences and make the best long term decisions for their child. This can be difficult in cases of contested custody. However, after the court makes a final decision, the parents must accept that decision and work together for their child.
Joint custody works best when parents can work together and agree on long-term decisions for their child. Parents may be able to do this on nearly every issue. Sometimes, when parents have joint legal custody, a court will award one parent “tie-breaking” authority when parents are unable to resolve a given decision. This is relevant only in cases where the parties have made a good faith effort to resolve an issue but joint decision-making does not work.
Physical custody determines where a child lives and which parent has authority to make day-to-day decisions when a child is with that parent.
In cases where parents have joint physical custody, the child spends significant time with each parent. Joint physical custody can mean equal, 50-50, but it does not have to. Examples include when one parent spends three days a week with one parent and four with the other. Or, a child spends the school year with one parent and summer break with the other.
When a child spends the majority of his or her time with one parent, the other is awarded parenting time, also known as visitation.
In some cases, a judge will order supervised visitation when it is in the child’s best interests. In these cases, a judge orders the type of supervised visitation. For example a judge orders visitation with the child at a relative’s home. In more serious cases, a judge orders visitation in the presence of the child’s therapist or at a formal supervised visitation center. However, courts order supervised visitation in only limited circumstances.
What Courts Consider in Contested Custody Cases
In contested custody cases in the state of Maryland, courts make decisions based on the best interests of the child. The best interests standard is of primary importance when the court makes a decision.
In addition, the court also considers:
Primary caregiver. Courts consider awarding custody to the child’s primary caregiver. This is the parent that makes medical appointments, takes care of the child, bathes the child, and purchases the child’s clothes.
Character and reputation. Courts consider the character and reputation of both parents.
Fitness. Courts consider the physical and psychological abilities of the parties. Courts consider abuse by one parent. This includes abuse against the child, the other parent, or someone else living in the household.
Preference of the Child. Courts consider the preference of the child. This may be done by an interview outside of the presence of the parents. The age and maturity of the child determines with weights a court will give the child’s preference. Further, a court may appoint an attorney to represent the interests of the child in a child custody dispute.
Family Relationships. Courts consider the ability of each parent to maintain family relationships after the divorce. This includes the other parent and extended families. A custodial parent must be able to separate a dispute with the other parent from responsibilities of parenting including the visitation and custody rights of the other parent.
Agreements. Courts consider any custody agreement the parents already have in place. Courts review these agreements determining the best interest of the child.
Gender, Age and Health of the Child. Courts consider the gender, age, and health of the child when determining custody.
Financial Stability. Courts consider the ability of a parent to provide financially to the child.
Religious Views. Courts consider the religious views of the parents and how that view affects the emotional and physical interests of the child.
Location of the Residences of the Parents. Courts consider the location of the parents’ homes. Does one parent live closer to the child’s schools and friends? Do the parents live close to each other? Does one parent live closer to the child’s extended family?
Separation. Courts consider the length of separation between a child and a parent.
Abandonment or Surrender of Custody. Courts consider one party’s abandonment or surrender of custody. If the parties broke up previously, did one parent leave?
Disability. Courts consider a parent’s disability only as it affects the best interest of the child.
Courts make contested custody decisions in the state of Maryland. It bases this decision on the best interests of the child, including a number of factors.
If You Have Children and are Considering Divorce
If you have children and are considering divorce, contact the law firm of Fait & DiLima. Our attorneys practice exclusively in the area of family and divorce law. We have offices in Rockville and Frederick, Maryland, to meet your family law needs.