Maryland Child Custody Law revolves around the
simple concept of what is in the child's best interest. Custody happens on two
different levels, which are themselves further broken down into two levels. You
have Legal Custody, further broken into sole and joint, and you have
Physical Custody, further broken into sole and shared. It is interesting to note
that the Court in Maryland can not enter an order for pendente lite custody when
the parties continue to reside together. See Maryland Family Law Article 5-203.
Legal Custody: Sole Legal Custody and
Joint Legal Custody. Sole Legal Custody is where only the custodial parent has
the right to make the decisions affecting health, education and welfare. Joint
Legal Custody is where both parents share equally in decision affecting the
health, education and welfare of the minor child.
Physical Custody is more interesting then legal Custody.
Physical Custody is where the child lives.
Physical Custody is also broken down into two different categories. You have
either Sole Physical Custody or Shared Physical Custody. Once a non custodial
parent enjoys Shared Physical Custody it means two things (1) he/she has the
child with them in excess of 128 over nights per year and (2) the child support
obligation is affected by the overnights with the otherwise non custodial
parent. You will find many people fight over the 128 overnights. In order for a
non custodial parent to reach the 128 number they must establish it is in the
child's best interest. The court looks at the factors in a case call Taylor v
Taylor to help the judge make the difficult decisions on whether to order sole
joint custody or shared physical custody. |
Maryland Courts follow the factors
outlined in this case to determine joint legal and shared physical
custody
Capacity of the Parents to Communicate and to Reach Shared
Decisions Affecting the Child's Welfare.
This is clearly the most important factor
in the determination of whether an award of joint legal custody is appropriate,
and is relevant as well to a consideration of shared physical custody. Rarely,
if ever, should joint legal custody be awarded in the absence of a record of
mature conduct on the part of the parents evidencing an ability to effectively
communicate with each other concerning the best interest of the child, and then
only when it is possible to make a finding of a strong potential for such
conduct in the future.
With few
exceptions, courts and commentators agree that joint custody is a viable option
only for parents who are able and willing to cooperate with one another in
making decisions for their child.
When the
evidence discloses severely embittered parents and a relationship marked by
dispute, acrimony, and a failure of rational communication, there is nothing to
be gained and much to be lost by conditioning the making of decisions affecting
the child's welfare upon the mutual agreement of the parties. Even in the
absence of bitterness or inability to communicate, if the evidence discloses the
parents do not share parenting values, and each insists on adhering to
irreconcilable theories of child-rearing, joint legal custody is not
appropriate. The parents need not agree on every aspect of parenting, but their
views should not be so widely divergent or so inflexibly maintained as to
forecast the probability of continuing disagreement on important matters. The
Courts will examine the sense of respect for one another as parents, despite the
disappointment in each other as marriage partners. The fact that each can
appreciated the value of the other to the child, and is sensitive to the
possible loss of a parent-child relationship. There must be a demonstrated
capacity to tolerate the minor differences that existed and to distinguish the
important from the unimportant ones. The parents should be able to relinquish
control and not interfere in the other parent's relationship with the child.
They should each be personally flexible and able to accommodate to the needs of
the arrangement, the child, and even to the other parent. It was important that
each parent had a sense of self-esteem as a parent in his or her own right in
order to maintain the balance in the co-parental
relationship.
Ordinarily the best evidence of compatibility with this
criterion will be the past conduct or “track record” of the parties. We
recognize, however, that the tensions of separation and litigation will
sometimes produce bitterness and lack of ability to cooperate or agree. The
trial judge will have to evaluate whether this is a temporary condition, very
likely to abate upon resolution of the issues, or whether it is more permanent
in nature. Only where the evidence is strong in support of a finding of the
existence of a significant potential for compliance with this criterion should
joint legal custody be granted. Blind hope that a joint custody agreement will
succeed, or that forcing the responsibility of joint decision-making upon the
warring parents will bring peace, is not acceptable. In the unusual case where
the trial judge concludes that joint legal custody is appropriate
notwithstanding the absence of a “track record” of willingness and ability on
the part of the parents to cooperate in making decisions dealing with the
child's welfare, the trial judge must articulate fully the reasons that support
that conclusion.
Willingness of Parents to Share
Custody. Generally, the parents should be willing to undertake joint
custody or it should not be ordered. We are asked by Appellant, and by the
Women's Legal Defense Fund as amicus curiae, to hold that a trial judge may
never order joint legal custody over the objection of one parent. They argue,
with some force, that unwillingness on the part of one parent to share custody
inevitably presages intransigence or inability to cooperate in making decisions
affecting the welfare of the child. While we agree that the absence of an
express willingness on the part of the parents to accept a joint custody
arrangement is a strong indicator that joint legal custody is contraindicated,
we are unwilling to fashion a hard and fast rule that would have the effect of
granting to either parent veto power over the possibility of a joint custody
award. A caring parent, believing that sole custody is in the best interest of
the child, may forcefully advance that position throughout the litigation but be
willing and able to fully participate in a joint custody arrangement if that is
the considered decision of the court.
Fitness of Parents. The psychological and
physical capabilities of both parents must be considered, although the
determination may vary depending upon whether a parent is being evaluated for
fitness for legal custody or for physical custody. A parent may be fit for one
type of custody but not the other, or neither, or both.
Relationship Established Between the Child and Each
Parent. When both parents are seen by the child as a source of
security and love, there is a favorable climate for joint custody. On the other
hand, joint custody may be inappropriate when opposed by the child, or when
there are indications that the psychological or emotional needs of the child
would suffer under a joint custody arrangement.
Preference of the Child. The reasonable
preference of a child of suitable age and discretion should be considered. In
addition to being sensitive to the possible presence of the “lollipop” or
“rescue” syndromes, the trial judge must also recognize that children often
experience a strong desire to see separated parents reunited, and this
motivation may produce an unrealistic preference for joint
custody.
The
so-called “lollipop syndrome” relates to the situation where one parent in a
custody battle may shower the child with gifts and pleasant times, and impose no
discipline in order to win the child's preference. The “rescue syndrome” relates
to the expression of preference by a child for the parent perceived by the child
to be the “weaker” of the two, in the belief that the stronger parent will
survive in any event, but the weaker parent needs the child.
Potential Disruption of Child's Social and School
Life. Joint physical custody may seriously disrupt the social and
school life of a child when each parent has the child for half the year, and the
homes are not in close proximity to one another. In such cases the amount of
time each parent has physical custody may be adjusted without interfering with
the concept of continued joint custody.
Geographic Proximity of Parental Homes. Parental homes within the same school district offer
certain advantages in a joint custody situation. The child may enjoy joint
physical custody without changing schools or being required to constantly change
a circle of friends, and the parents may find proximity a benefit in discussing
the decisions to be made concerning the child. However, distance is not a bar,
and when the distance between homes is great, a joint custody arrangement may
offer the only practical way to preserve to the child a meaningful relationship
with each parent. Depending upon the age and emotional maturity of the child,
similarity of the respective home environments may be desired, or exposure to
dissimilar environments, cultures and opportunities for learning may be
indicated.
Demands of Parental Employment. In some
situations, joint physical custody will be appropriate only if the work hours of
the parents are different, or there is flexibility in the demands of the
employment of each.
Age
and Number of Children. The factor of age
obviously interrelates with other factors already discussed. The number of
children involved may pose practical difficulties to a joint custody
arrangement, but on the other hand may be helpful to both parents in bringing
about a sharing of the pressures of single family parenting of a number of
children. In rare cases, split custody may be preferred over sole or joint
custody.
Sincerity of Parents' Request. A number of
interested observers have opposed the concept of joint custody absent mutual
agreement on the ground that one spouse may interpose a demand for joint custody
solely to gain bargaining leverage over the other in extracting favorable
alimony, child support or property concessions. Drawing upon the reasoning of
King Solomon writers have suggested that a parent truly interested in the
welfare of a child will give up almost anything to protect the child, and thus
the threat of enforced joint custody can be used to extract unwarranted
concessions. While the remedy they suggest-denial of joint custody in the
absence of parental agreement-is unnecessarily restrictive, we acknowledge the
legitimacy of these concerns and highlight the necessity to carefully examine
the motives and sincerity of each parent.
Financial Status of the Parents. Joint physical
custody imposes financial burdens upon the parents because of the necessity of
maintaining two homes for the child, with separate furnishings and often
separate toys, equipment, and clothing.
Impact on State or Federal Assistance. Aid to families with
dependent children and eligibility for medical assistance may be affected by the
award of joint custody. The necessary showing of “absence” of a parent may be
challenged when there is an award of joint custody that includes shared physical
custody. Although the primary focus is properly upon the best interest of the
child, it is also appropriate to consider the salutary effect that joint custody
may have on the parents, not only because their feelings and interests are
worthy of consideration, but also because their improved self-image as parents
is likely to redound to the ultimate benefit of the child.
Other
Factors. The
enumeration of factors appropriate for consideration in a joint custody case is
not intended to be all-inclusive, and a trial judge should consider all other
circumstances that reasonably relate to the issue. The resolution of a custody
dispute continues to be one of the most difficult and demanding tasks of a trial
judge. It requires thorough consideration of multiple and varied circumstances,
full knowledge of the available options, including the positive and negative
aspects of various custodial arrangements, and a careful recitation of the facts
and conclusions that support the solution ultimately selected.
