Modification Of Child Custody in Divorce in Maryland

In a Divorce in Maryland even after the case is done and the judgment of divorce is final the Court still retains the jurisdiction and power to modify custody, child support and visitations. As to custody and visitation, these can be modified by the court on a petition for modification of custody and visitation filed in the jurisdiction where the child presently lives. This is true even if that is not the same location where the divorce decree was entered. However, in order to prevail on the petition for modification you must prove two things. First you must prove there has been a material change of circumstances. Second you must prove it is in the child's best interest to change custody. It is important to prove not just that things have changed like the child is older. Rather you have to prove things have changed in a material way. The court will not allow the non custodial parent to relitigate the same issues over and over see Schaefer v. Cusack 124 Md.App. 288, 722 A.2d 73 Md. App., 1998. As the Maryland divorce court said in Robinson v. Robinson, 328 Md. 507, 615 A.2d 1190 (1992), the primary concern to a judge in awarding custody to one parent over the other is the best interests of the child. The courts in a divorce in Maryland have repeatedly stated the list of factors:

“For the purpose of ascertaining what is likely to be in the best interests and welfare of a child a court may properly consider, among other things, the fitness of the persons seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the child, the physical, spiritual and moral well-being of the child, the environment and surroundings in which the child will be reared, the influences likely to be exerted on the child, and, if he or she is old enough to make a rational choice, the preference of the child. It stands to reason that the fitness of a person to have custody is of vital importance. The paramount consideration, however, is the general overall well-being of the child.”A change in circumstances has been required for a change of custody. In McCready v. McCready, 323 Md. 476, 593 A.2d 1128 (1991), Judge McAuliffe said for the Court the question of whether there has been a material change in circumstances which relates to the welfare of the child is, however, often of importance in a custody case. The desirability of maintaining stability in the life of a child is well recognized, and a change in custody may disturb that stability.

Stability is not, however, the sole reason for ordinarily requiring proof of a change in circumstances to justify a modification of an existing custody order. A litigious or disappointed parent must not be permitted to relitigate questions of custody endlessly upon the same facts, hoping to find a chancellor sympathetic to his or her claim.

An order determining custody must be afforded some finality, even though it may subsequently be modified when changes so warrant to protect the best interest of the child. As we said in Hardisty v. Salerno, 255 Md. 436, 439, 258 A.2d 209 (1969), ‘while custody decrees are never final in Maryland, any reconsideration of a decree should emphasize changes in circumstances which have occurred subsequent to the last court hearing.’ See Sharp, Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard?, 68 Va.L.Rev. 1263, 1266-71 (1982).

I customarily advise my clients, if you are seeking a change in custody things have to have changed. The court generally will not fix it if it is not broken. You have to prove the child is not doing well under the present living arraignments. For example, but not by way of limitation, the grades are slipping, the child is not socializing, not eating, not sleeping, digressing in behavior, the custodial parent is not caring for the child and all this is different then it was when the court originally entered their order. As such it is now in the child's best interest to change the custody.