There are two general types of custody in Maryland: physical custody and legal custody.
Physical custody is where the child lives. A parent having physical custody has the right to have the child live with him or her at certain times. Physical custody includes the right to have the child live with the parent, and the obligation to provide a home for the child. Physical custody includes the right to make the day-to-day decisions required during the time the child is with the parent having such custody.
There are two types of physical custody: sole (or primary) physical custody and shared (or joint) physical custody. A parent has sole physical custody when the child lives primarily with that parent and lives with the other parent less than 92 overnights during the year. When one parent has sole physical custody of the child, the other parent usually has access or visitation rights with the child. An example of sole physical custody is when the child lives primarily with one parent and visits with the noncustodial parent every other weekend. A parent having access or visitation rights has the right to make the day-to-day decisions required during the time the child is with the parent having such access.
Shared (or joint) physical custody means that both parents have the child at least 92 overnights per year. 50/50 physical custody is when both parents have the child for equal amounts of time. There are several variations of a 50/50 schedule. For example, week-on/week-off is where one parent has the child one week and the other parent has the child the following week. Another example is 5/2/2/5 where a parent has the child overnight on Monday and Tuesday, the other parent has the child overnight on Wednesday and Thursday, and then the parents alternate the weekends from Friday afternoon until Monday morning.
Legal custody is the right and obligation to make long-range decisions involving education, religious upbringing, medical care, and other matters of major significance concerning the child’s life and welfare. There are also two types of legal custody: sole (or primary) legal custody and shared (or joint) legal custody. Sole (or primary) legal custody is when only one parent has the right to make the decisions regarding the child. Joint (or shared) legal custody is where both parents have the right to make decisions regarding the child. A variation of joint legal custody is where the parents have joint legal custody, but one parent has tie-breaking authority in the event of a dispute.
Factors Considered in Awarding Child Custody
The overall goal in any child custody case is to determine what is in the best interests of the child. In looking at the best interest of the child, the court considers various factors. The best interest of the child is not considered as one of many factors, but as the objective to which virtually all other factors speak.
Because each custody case is unique, no list of factors can be complete. However, here is a list of factors compiled from Maryland custody cases that pertain to physical custody:
- Fitness of parents. A court may consider if either party has any physical or mental infirmity that affects their ability to parent. The court will also consider the roles of each parent in caring for the child during the child’s life and the history of the parent caring for the child.
- Character and reputation of parties. The court may consider whether a parent has ever been arrested or has some character trait that would affect the parent’s ability to care for the child.
- Desire of parents and agreements between parties. The court may consider whether there are any agreements between the parents regarding custody or access.
- Potentiality of maintaining natural family relations. The court may consider whether there are other family relationships, such as step-siblings or grandparents, that are important to a child.
- Preference of the child. If the child has sufficient capacity to make and express a preference, the court may consider the child’s preference.
- Material opportunities affecting the future life of the child. The court may consider the economic and financial positions of the parties.
- Age, health, and sex of the child.
- Residences of the parents and opportunities for visitation, or geographic proximity of parental homes. The court may consider the distance between the parties’ residences.
- Length of child’s separation from parent. The court may consider any separation between the child and the parent.
- Prior voluntary abandonment or surrender. The court may consider whether or not a parent has ever deserted or abandoned the child.
For legal custody, courts consider the following factors (some of which may overlap the physical custody factors), including:
- Capacity of parents to communicate and to reach shared decisions affecting child’s welfare. The court will look at whether or not the parties have the ability to communicate with each other and to reach shared decisions regarding the child. The court may consider the history of decision-making between the parties.
- Willingness of parents to share custody. The court will consider whether or not the parents are willing to work with each other.
- Fitness of parents.
- Relationship between the child and each parent. The court will look at the relationship between each party and the child.
- Preference of the child.
- Potential disruption to a child’s social and school life. The court may consider whether or not an award of joint custody will cause any disruption to the child’s social or school life.
- Geographic proximity of parents’ homes.
- Demands of parental employment. The court may consider whether the parent’s employment makes the parent unavailable to the child.
- Age and number of children.
- Sincerity of the parents’ request. The court may examine the sincerity of each parent’s request for joint custody.
- Financial status of parents.
- Impact of assistance. The court may consider whether an award of joint custody may impact any federal or state assistance received by the child.
- Benefit to parents. The court may also consider any other factor that the court thinks is important.
Legal and Physical Custody
Determining legal and physical custody of a child is one of the most important obligations that a court has in the event that the child’s parents are unable to reach a decision between themselves. The most important factor in child custody is determining what is in the best interest of the child. Although the court may consider many different elements, determining the best interest is the ultimate goal in any custody case.
Do you need help navigating how child custody is determined in Maryland? Here at Meiselman, Helfant & Wills we will answer your questions and guide you through this process. Contact us today!