Maryland Child Custody Questions

Maryland custody attorneys provide answers to frequently asked questions with regards to Maryland child custody and Maryland custody laws.

Who will get custody of our child(ren)?

There are no set rules on who will automatically get custody of the children. In Maryland, like many other states, the one ultimate standard in determining custody is what is in “the best interest of the child.” There are statutory factors that the court must consider to determine the best interest of the child.

What is joint custody? What is sole custody?

There are two types of custody in Maryland: legal custody and physical custody.

The parties can jointly hold legal custody, or one party may be given sole legal custody of the child. Legal custody is the right to make major life decisions for a minor child, such as education, major medical treatment, and religious affiliation.

If both parents have joint legal custody, they both share that decision making right. It should be granted in a scenario where both parents are willing and able to effectively communicate with each other about decisions regarding their child.  In sole legal custody, the party granted the same is the decision-maker for the child.

Physical custody can be either shared physical custody or sole physical custody to one parent with visitation to the other. Sole custody involves one parent having physical custody of the child or children. The other parent, or “non-custodial” parent, only exercises physical custody over the child when visitation rights are involved.

In order for physical custody to be shared, both parties have at least a minimum of 128 overnight visitations (or 35% of the year) and both contribute to the expenses of the child in addition to any award of child support.

How is child support determined in Maryland?

Child support is determined by a mathematical calculation set forth by statute.  This calculation process is performed by applying the child support guidelines.

It is mandatory in Maryland that in every case where child support is involved, that legislatively mandated child support guidelines be used.

The guidelines use several factors to calculate support, including, but not limited to:

• Gross income of each party;
• Alimony paid or received in this case;
• Alimony paid in a separate case;
• Child support paid in a separate case;
• Who has the physical custody of the child(ren);
• If physical custody is shared, the number of over-nights each parent has; and
• The cost of the child(ren)’s health insurance, day care, and/or extra-ordinary medical costs.

What is retroactive child support?

The court may award that child support be paid retroactively for the period from the filing of the pleading that requests child support until the ultimate decision regarding the support amount. However, it is not an automatic or mandatory award.

If both parents share custody does anyone pay child support?

It depends. Child support is determined by a mathematical calculation set forth by statue.

It uses several factors including, but not limited to, who has the physical custody of the child(ren); if physical custody is shared, the number of over-nights each parent has; the gross income of the parties; and the cost of the child(ren)’s health insurance, day care, and extra-ordinary medical costs.

Even if there is an award of shared physical custody, there is no guarantee that there will not also be an award of child support to one of the parties.

Can a parent refuse to allow visitation if child support is not paid?

No. Child support payment or lack thereof is completely independent of a parent’s right to see his/her child.

When can my child decide which parent to live with?

Custody is never the child’s sole decision, but the court may consider the child’s wishes if the child is of sufficient age and capacity to form a rational judgment in the matter. The court is not required, however, to speak to the child regarding preference.

Do grandparents have custody and visitation rights?

Under Maryland case law, grandparents have no inherent right to custody of their grandchildren. If petitioning for custody or visitation, a grandparent is treated fundamentally the same as a third-party petitioner.

Third parties do not have visitation rights to the minor children unless an independent action to gain those rights is started.

What is a parenting plan, and do I need one?

A parenting plan is an agreement reached between the parties as to the custody of and visitation with the minor child(ren). Typically the parenting plan is developed during mediation, but could be reached at any point in the custody process. Any agreement reached by the parties regarding custody and visitation will most likely be incorporated into any final court order.

If my separation agreement includes child custody and child support can it be included in the divorce decree?

Yes, but it is important to note that any agreement over the amount of child support that differs from the statutory calculation of child support from the guidelines will have to be justified as being in the child’s best interest. The right to support is not a right held by either parent, but one that is held by the child.

Therefore, the ultimate decision as to whether or not to deviate from the support amount set forth in the guidelines is ultimately the court’s decision. Also, the court will have continuing jurisdiction over child support and a modification of child support based on changed circumstances can be made at any time.

When will child custody be decided?

An order regarding custody can be made in several ways and at different times in the process. Depending on the course of the case, temporary awards of custody could be made at an Emergency Hearing, the Scheduling Conference, a Pendente Lite Hearing, or any other Court appearance. The final decision regarding custody will be made at the final trial or hearing.

Important things to note:

• Custody is modifiable.
• If the parties can reach an agreement regarding custody, the court is most likely going to accept that agreement and incorporate it into any final order.
• A temporary determination of custody could be made during an action for a Protective Order.

When can I modify custody?

A Complaint to Modify Custody can be brought at any time, however in order for it to be successful there must be showing of both a material change in circumstances and that modification is in the best interest of the child. It should be thought of as a two-step process.

First, the petitioning party must prove that a material change in circumstances has occurred since the time in which the previous custody award was granted. Then, the court will consider whether or not a modification of custody is in the best interest of the child.

What if we cannot agree on a custody arrangement?

If the parties cannot mutually agree on a parenting schedule, the court will have to determine a schedule that it deems is in the best interest of the minor child.

What is an ex parte order?

Strictly speaking, an ex parte order is any order granted by a judge without requiring all of the parties to the controversy to be present. Frequently, in family law jargon, an ex parte order refers to a protective order.

How is custody decided?

In Maryland, like many other states, the one ultimate standard in determining custody is what is in “the best interest of the child.” There are factors that the court considers in determining the best interest of the child.

How can I increase my chances at getting a larger custody agreement?

Ultimately, any custody award will be determined as what is in the best interest of the child, not what the particular desires of the individual parents. Your focus should likewise remain on acting in accordance with your child’s best interest.

What is visitation?

Visitation is parenting time. It is when one parent gets to “visit” or spend time with the minor children. Visitation may or may not include overnight visitation time.

The term “visitation” typically refers to the time that the party who is not the primary custodian of the child has time with the child, but could refer to each party’s specific time with the child.

Can a judge order supervised visitation or no visitation?

Like all issues in child custody, the answer is yes, if it is in the child’s best interest. Specifically, if the judge believes that the child’s health or welfare is at stake, visitation can be restricted or denied. In Maryland, it is extremely unusual to deny all visitation of a child by a natural parent.

Do courts favor the mother over the father?

The law is very clear in Maryland that there is no statutory maternal preference.  In fact, there is no legal preference for either parent.

This does not mean that there are not courts or judges that may be predisposed to favor one parent over another, though.

Can I collect my own evidence to use if my custody case goes to court?

Yes, however you will need to abide by the Maryland Rules of Evidence in introducing the proposed evidence. Also, if there has been discovery in your case, you will need to insure that you complied with any requests for said evidence during discovery, or you may be prevented from entering it as evidence at the time of the trial.

Can an attorney be appointed to represent my child?

Yes. In an action for custody and/or visitation, the court, in response to a request form the parties or based upon its own determination, has the power to appoint an attorney to represent the minor child. This attorney may not also represent a party to the action.

Will my child need to appear in court?

Most courts do not encourage the appearance of the minor child. For instance, the Family Division of the Baltimore City Circuit Court does not allow minors in the courtrooms. If the testimony of a child is relevant and/or necessary, the judge or the master will most likely speak with the child in chambers as opposed to open court.

What is the Parental Kidnapping Prevention Act?

This is a federal law that concerns interstate child custody matters.

What if my wife tries to move the kids out state?

There are several possible ways of addressing this scenario through the court. Any response, however, will vary greatly depending on whether or not a custody order is already in place, and, if so, who has primary physical custody of the child(ren).

Can a parent change the child’s last name without the other parent’s permission?

In order to change the last name of a minor child, a petition would have to be filed in court to do so. The petitioning party bears the burden of demonstrating that the change of name promotes the best interest of the child.

If I have custody, will I receive child support?

It depends. See the above question, “How is child support determined?” Just because one party has been awarded primary custody of the child(ren) does not guarantee that there will also be an award of child support, but it is more likely than not.