Custody and Visitation - The Basics
The question of "Who gets custody of the kids?" is one of the most difficult decisions for parents and their children, when parents
separate. Custody and visitation are the legal terms for court decisions about how the child will spend his/her time between parents (or others).
Custody and visitation are never considered to be final. As situations change, parents can come back to court to request changes.
In Maryland, the law does not favor either the mother or father. The law looks at the relationship of each parent with the child. While grandparents and others may seek custody, there is a "presumption" in favor of the natural parents. This means that the court is more likely to favor the natural parents.
This section is designed to give you general information on how courts decide custody and visitation rights in Maryland.
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Types of Custody: What does the word "custody" mean?
Temporary Custody
- "De facto" (means "in fact") custody refers to who actually has custody of the child at this time. This can be different from "court ordered custody". In order to formalize custody before you begin litigation,
you will need to file for temporary
custody. Temporary custody will be
based on the "best interests" of the child standard. It is not an "initial" award of custody. Instead it is temporary custody while you wait for the court to hold a hearing. In order to be awarded temporary custody you must file a request for hearing and an Order for Temporary Custody and Support (Form DR. 51) along with your Complaint for Custody or Divorce.
Sole Custody
- Custody is made up of: legal custody and physical custody. A person with legal custody has the right to make long range plans and decisions for the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning the child's welfare. A person with physical custody has the child living primarily with them and they have the right to make decisions as to the child's everyday needs. Sole Custody is when both legal and physical custody are given to one parent. The child has only one primary residence.
Split Custody
- Split custody is easiest to describe in a situation where there are two children and each parent obtains full physical custody over one child. Some of the considerations that may bring about this result are age of the children and child preference.
Joint Custody - Joint Custody is actually broken down into three categories: Joint Legal, Shared Physical, and Combination.
- Joint Legal custody is where the parents share care and control of the upbringing of the child, but the child has only one primary residence.
- In Shared Physical Custody the child has two residences, spending at least 35% of their time with the other parent.
- Additionally, you can make your own special joint custody agreement that is any
combination of Shared Physical and Joint Legal Custody. One example of this is when there is one residence for the child and the parents live with the child there on a rotating basis.
The court looks very closely at Joint Custody agreements. The most important factor to Joint Legal Custody
to Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child's welfare. If you are constantly fighting over what religion or what school, the court may strike down your agreement.
Other factors include: 
- willingness to share custody;
- fitness;
- child's relationships with parents;
- child's preference;
- ability to stabilize child's school and social life;
- closeness to parent's homes (primarily a factor during the school year) ;
- employment considerations (e.g. long hours, extensive travel, etc.);
- age and number of children;
- financial status;
- benefit to parent.
Additionally, the sincerity of the parties involved is important. The court will want to make sure that joint custody isn't being traded for concessions on other points. Another consideration is whether the grant of joint custody will affect any assistance programs. Currently,
Welfare and Medical Assistance are affected based on the award of Joint Legal Custody. Be sure to check with your contact at any social service agencies before entering into an agreement or you may be jeopardizing your benefits. This list is not meant to be
complete and the court will hear anything that they believe to be relevant.
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The Best Interests of the Child Standard
Regardless of any agreement you may have reached, the courts
will look at custody to determine the
"best interests" of the child.
They look at several factors. It is important to remember that no one factor
is more important than any other. The following list is some, but not all, of the factors, that courts will consider.
- Primary Care Giver
- Who is the person who takes care of the child? Who feeds the child, shops for their clothes, gets them up for school, bathes them, and arranges day care? Who does the child turn to when they get hurt?
- Fitness - What are the psychological and physical capacities of the parties seeking custody? The court may also consider evidence of abuse by a party against the other parent, the party's spouse, or any child residing within the party's household (including another child).
- Character and Reputation
- Agreements
- Is there a custody
agreement already in place?
- Ability to Maintain Family Relationships - Who will be able to keep the child's family most intact? Who is going to let the child speak with their ex-mother-in-law, for example? Who will not penalize the child for any adverse action on the part of the other parent.
- Child Preference
- The decision of the court may be considered reversible error if they won't hear the child's preference. However, the court has the discretion to interview the child out of the parents' presence. A child as young as 5 or 6 years of age may be heard. Though it is rare, the court will hear from a child under 7
years.The child's ability to tell the truth from fiction and maturity will be the
guideline for whether a child may be heard. A child of 10 or 12 years of age is certainly entitled to have their opinions heard and given weight in legal proceedings about custody. Additionally, the court has the power to appoint an attorney for the child in contested cases.
- Material Opportunity
- Which parent has the financial resources to give the child more things?
- Age, Health and Gender of Child
- Residences of Parents and Opportunity for Visitation
- How close do the parents live to each other? How close do they live to members of the child's extended family? Which parent lives closest to the child's school and social circle?
- Length of Separation-
how long has the parent been separated
from the child?
- Any Prior Abandonment or Surrender of Custody
- Is there a history of one parent walking out and leaving the other parent to cope with the child and the home? Which parent left when you last broke up?
- Religious Views
- These will
be important in the court's decision only if
you can show that religious views affect the physical or emotional well being of the child.
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When should you have an attorney?
In the event that you have a highly volatile, hostile or contested custody issue you should seek out a lawyer to represent you. Additionally, if the other parent is using the services of an attorney, it is advisable that you also have an attorney. The Court of Special Appeals has held that representing yourself is not a good enough excuse for not answering a motion by an attorney of the opposing party.Need help finding a lawyer in Maryland?
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Jurisdiction
"Jurisdiction" is the
set of rules that decides which court hears
a case. Jurisdiction is like an imaginary fence that
divides legal cases into 2 categories. On
one side of the fence are the cases that a certain
court can decide. On the other side
of the fence are the cases that the court is
not allowed to hear. Usually
"jurisdiction" is the reason one
court must allow another court to hear the
case.
There are two types of jurisdiction: personal and subject matter. The court must have both types of jurisdiction to hear a case. Personal jurisdiction, the power to require a person to appear in court, is discussed in the Service of Process section of this Web
site. In Maryland, subject matter jurisdiction
to hear custody and visitation cases is with
the Circuit courts. If you have a custody
case in Maryland, the Circuit Court is where
the case will be filed and heard by a judge
or master.
1.The child
lives in the state and
- Maryland is the home state of the child (lives in state, goes to school in state) and
- the parent has sufficient contact with the state (works, votes, lives, pays taxes in Maryland).
2.
Even though the child is not in Maryland
now:
- Maryland was the child's home state within the last six months and
- The parent filing for custody continues to live in Maryland
3. The child and at least one of the parents have significant connection with Maryland
(live, work, go to school here) and in Maryland there are more records and witnesses to give evidence of the child's present or future care, protection, training and personal relationships.
4. The child is physically present in Maryland and was abandoned or emergency protection is necessary
(an emergency means the child was threatened or
a victim of abuse or neglect).
More about the law.
If you do not understand what you have just read or are not sure if the court will have jurisdiction to hear your case, you should consult an attorney. Need help finding a lawyer in Maryland?
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Unmarried
Parents
If the parents are unmarried, the child is the child of his/her mother.
In order for the father to
claim rights to the child (including rights to custody or visitation),
paternity must be admitted or established in court. For more information
on unmarried people who live together, see the section on Unmarried Cohabitants.
A father can
establish paternity by:
- a court determination of paternity;
- acknowledging paternity in writing;
- telling
others that the child is his;
- or by marrying the mother and then acknowledging himself as the father, either in writing or orally.
Once paternity is established, neither
mother or father is given a preference based solely on their gender. The Dom Rel forms do not cover paternity actions. If you are seeking to establish paternity, consult an attorney.
Need help finding a lawyer in Maryland?
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What if we disagree about custody and
visitation?
If you and your spouse are having trouble reaching an agreement, you should consider mediation.
A mediator specializes in helping people reach an agreement that is fair and will last. The sessions are
confidential. A mediator's role may be limited to custody.
You may also ask to cover other issues such as marital property if you choose. Mediation is not
appropriate in cases where there is a genuine issue of physical or sexual abuse of the child or one of the parties. It is also important to get a legal advisor for this process. The mediator's role is not to take sides, but to bring the two sides together. Additionally, if the mediator is not an attorney, he/she may be unaware of some specific legal issues.
Court Ordered Mediation
The court has the power to order
you and the other side to go to
mediation.
This is true whether
- your
case is just starting;
- you are
requesting modification of an existing
order; or
- or you are
filing a contempt action.
- You should be aware, however, that if mediation is ordered by the court at the initial proceeding it will most likely prolong the legal process by stopping all other actions until the mediation is complete. The court will initially order two
sessions. However, a mediator recommend
that the court order 2 additional sessions.
You may decide to continue the mediation without the court ordering it. The court also has the power to order
one or both parties pay for the mediation.
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Custody Agreements: What if we agree about custody and visitation?
If you and the other parent have already come to a fair agreement on the custody and visitation issue, you may want to write your own
"stipulation" and consent order. A
"stipulation" is a statement
describing the agreement that you have
reached. A consent order is a draft for the
judge to sign if s/he agrees to accept your
agreement. this means that the court can
enforce the agreement in the future.
If you choose to go this route, you and the other parent should be as specific as you can to avoid future conflicts. You should ask yourself, who has legal custody? Which holiday does the child spend with you? What time and where may the other parent pick the child up? What time should the child be returned home? What is the procedure to follow if either of you are running late and won't be there on time? How much notice should you be given if they are planning a vacation? How far away may the other spouse move? What you might think you can figure out as you go along could actually blow up into a full scale war later. The Stipulations should state everything that you have agreed upon. You should not rely on any oral promises. If you both agreed on it, write it down (no matter how trivial it may seem now). Your agreement should be included with your Complaint for Custody (DR 4), Complaint for Visitation (DR 5) or Complaint for Divorce (DR 20 or 21). Additionally, you should be sure to read this full section before proceeding in order to avoid having your stipulation and consent order ignored by the court or giving away rights of which you were unaware.
Technology offers some innovative and creative ways for parents separated from their children to connect. "Virtual" visitation is coming to be recognized by the courts as a potentially important way to supplement in-person visits.
Need
Help? visit one of the
Family law Self-Help Programs.
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When the Custody Order
Agreement is Violated
People go into courthouses everyday telling clerks that the parent has not returned the child at the scheduled time following visitation and they don't know what to do. When a custody order is violated the law requires the custodial parent/lawful custodian to first demand the return of the child.
If the child is not returned within 48 hours, the visitation parent may have committed one of the following crimes:
- If the abducting parent remained within the state, it can be a misdemeanor. The person can be fined $25 or imprisoned for up to 30 days
- If the abducting parent crosses the state line, it can be a felony. The
person can be fined $250 -$1000 and/or imprisoned 30 days to 1 year
If the child has actually been stolen by the other parent you should report this to your local police department immediately. The FBI can be called in to find the fugitive parent and the child as well.
The only exception to this rule is when the child is in clear and present danger (the victim of abuse or abandonment) requiring the non-custodial parent to save them. The non-custodial parent must be ready to prove this clear and present danger and they are required by Maryland law to file a petition within 96 hours. In that event, both parents will need a lawyer.
Need help finding a lawyer in Maryland?
Once an incident like this has happened, you may want to consider modifying the custody order.
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Modification of Custody
When a parent seeks to have the custody order changed, it is his/her burden to show the court why it should be changed. The court follows the
notion of, "if it isn't broke, don't fix it." This is based on the idea that stability is best for the child unless you can show that there is something in the environment that will
harm the well being of the child. This is not as simple as it may seem.
You will have to show that your home
will be better than the home of the
custodial parent (not just as
good). To do this you must show that there has been a substantial change in circumstances and that it is in the child's best interests to make the change you are proposing. If the two homes are thought to be equal, then custody will stay as it is. Remember, a temporary or
"pendente lite" custody order is not a final order. You would not be required to show a substantial change in circumstances to have
temporary custody changed in the "permanent" custody order.
A child at least 16 years of age can seek a change in custody on his/her own. However, it will be the minor's burden to prove that a change of custody would be in his/her best interests at this time.
The court that made the original custody and visitation order retains jurisdiction to decide modification unless the parties and child no longer have close ties to the court and the court surrenders its jurisdiction. However, the court with original jurisdiction may refuse to hear the custody case if a child has been wrongfully taken from another state or taken without the consent of the person entitled to custody.
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Taxes
Usually the parent with custody can claim the exemption for the child. However, the parents may agree to claim the child exemption on alternate years. In that case, the parent with custody needs to sign IRS Form 8322, Release of Claim to Exemption. Whether or not you are taking the exemption for the child, you may still file as "head of household."
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Overview to Visitation
Visitation is the part of the court order that defines
when, how and where the non-custodial parent
may have contact with the child. Visitation is limited by
the fact that legal custody belongs to the other parent. This means that your visitation does not give you the authority to conflict with the long range decisions and policies of the parent with legal custody. For example, if the parent with legal custody has decided to raise the child in the Jewish tradition, the parent with visitation rights may not take the child to be baptized in a Catholic church.
There are no reported cases of a court honoring complete denial of visitation for a parent. Even in cases of abuse, the only reported cases have upheld supervised visitation.
Supervised visitation is when the parent is only allowed to visit with the child in the company of another person. This person is usually a friend or relative that the two parents agree will be allowed to act as a chaperon. Supervised visitation often calls for a restriction of visitation to a particular location and time.
Who can be awarded visitation? Obviously a biological parent can be awarded visitation. Additionally, grandparents (even when the parents weren't married or are not currently divorced) and step-parents may be awarded visitation rights. While there are no reported cases of brothers or sisters being given visitation, a strong argument could be made that it would be in the best interest of the child.
When can visitation be denied? The court has the power to deny visitation. Normally the court will only stop visitation for a certain time or until a certain task is performed. For example, the court has previously stayed visitation until the parent met their financial obligation. If your spouse should deny you court ordered visitation, you first file for a modification of visitation for a more definite schedule, before filing a Contempt Action. (DR.3). Many parents feel they have the right to stop paying child support, but they are wrong. Withholding of child support will only get you in trouble and possibly arrested.
Long distance solutions: Technology offers some innovative and creative ways for parents separated from their children to connect. "Virtual" visitation is coming to be recognized by the courts as a potentially important way to supplement in-person visits.
What if you fear for your child's safety or just do not want to see the other parent?
Supervised visitation protects the safety of the child and centers are available throughout Maryland. "Monitored Exchange" programs allow the child to move from one parent to the other without meeting.
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