Modification of Child Custody in Maryland

Whenever there is a situation in which the court has entered an order that established child custody, this order is subject to modification upon a showing that there has been an unforeseeable substantial change in circumstances of the parents since the original order or agreement began. In order to determine if there should be a modification in the child custody order a best interest analysis is done. The best interest analysis that is used in Maryland is a discretionary test that looks at a variety of factors.

These factors include:

• The mental and physical fitness of the parents
• The character and reputation of the parent when there is a nexus between the individuals conduct and their parenting ability
• The preferences of the parents
• The potential for maintaining natural family relations and facilitate a relationship with the other parent
• The Preference of the child
• A child has the ability to petition for a change in custody once they are 16 years of age
• The age and health of the child 
• Prior voluntary abandonment or surrender of parental rights
• Abuse of either the child or the other parent

In order for a modification of child custody to occur it must be proven that there was a substantial change circumstances that was unforeseeable at the time the parties either entered a custody agreement or the original court order was entered into and that it is in the best interest of the child for the current child custody arrangement to be modified. 

Child Custody in Maryland

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.

the Taylor v Taylor - Factors for Shared Physical see Sanders for Court factors on sole 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.

Jurisdiction in Child Custody Maryland Divorce

Circumstances arise when parties relocate to different states and have children. When disputes arise over custody it becomes necessary for the court to determine which state should have the jurisdiction to hear the case. The law that governs is the Maryland Uniform Child Custody Jurisdiction and Enforcement Act (“the Act”), Maryland Code (1984, 2006 Repl.Vol.), §§ 9.5–101 to 9.5–318 of the Family Law Article (“FL”) and Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)which once distilled provides essentially that to have jurisdiction over the custody issues the state shall not lack significant connections or substantial evidence. It is not the intent of the Act to postpone those determinations and thereby extend continuing jurisdiction indefinitely, for this also would defeat the Act's purposes. Paltrow v. Paltrow, 283 Md. 291, 293, 388 A.2d 547 (1978).

If you have issues involving custody issues please feel free to call my office. I will answer your question over the phone at no cost to you 1-888-760-7339.

Divorce In Maryland Custody and Substance Abuse

There are instances in a divorce in Maryland where custody and visitation access to minor children are core issues to be addressed by the court. There are circumstances where a parent has become involved with addictive behavior whether that is alcohol or drugs. The court has addressed these issues in the matter of Cohen v Cohan which recognizes of course the court's authority to curtail access provided it is established by the evidence that it is in the children's best interest. Ultimately the court will exercise its authority to supervise, suspend or require abstinence from the use of drugs and alcohol provided there is a high probability of substance abuse.

If you have questions regarding divorce in Maryland, Maryland child custody were issues of custody in Maryland please feel free to call me at 1-888-760-7339. We will answer your legal questions over the phone at no cost to you.

Child Support Maryland

Child support in Maryland: by law parents are required to support a minor child through the age of 18, or until age 19, if the child is enrolled in secondary school. The obligation to support a minor child who is still attending secondary school until the age of 19 is a change from the prior law. You may find this change in Maryland annotated code article 1 section 24 Rules of Interpretation which creates an exception for child support and further family law article 5–203 says that parents are jointly and severally liable for child support, care, nurture, welfare and education. If you have the need to file a petition with the court to establish child-support in Maryland you are eligible to file the complaint in the county where the noncustodial spouse lives or works or where the child lives. It's important to remember when you file your complaint to establish child support you also have to file your financial statement see Maryland rule 9–202. If you have questions regarding child-support in Maryland or any other matter involving divorce in Maryland please feel free to give me a call. I will answer your questions for you right over the phone at no cost to you 1-888-760-7339.

Divorce in Maryland children as witnesses

In a divorce in Maryland a judge is not required to interview a child in a custody case. If the court decides to interview a child it may be done without the presence of the parties and without the presence of counsel, even over the objections of either of the parties. The interview however must be reported by the court reporter unless the parties waive the recording requirement. Immediately following the interview the contents must be made known to counsel and the parties. Counsel for either party or even a best interest attorney is typically given the opportunity to suggest questions for the court to ask of the child the questions are typically submitted in writing. If you have questions regarding divorce in Maryland and or child custody in Maryland please feel free to give me a call. I will answer your questions for you right over the telephone at no cost to you. 1-888-760-7339

Maryland Uniform Child Custody Act

The Maryland uniform child custody act can be found in the Maryland family law at section 9.5 – 201. The purpose of this blog entry is to point out the interplay between the uniform child custody act and section 9-302 of the Maryland family code annotated dealing with removal of children from the state. As well as section 9.5 – 207 which addresses the Maryland state courts ability to decline jurisdiction due to inconvenient forum. I recently completed a case where one of the parents had removed the children from Maryland in a clandestine manner. The noncustodial parent was completely unaware that the children had been removed from Maryland until nearly 7 months after their relocation. There was ample evidence to establish that the custodial parent never communicated the relocation to the noncustodial parent prior to that seven-month period of time expiring. Of course the custodial parent file for custody in his new jurisdiction in the noncustodial parent requested the court in Maryland to assume jurisdiction due to the wrongful taking and removal of the children from Maryland. Maryland case law on point suggest that while 9-302 supports the continuing jurisdiction of the custody issue be heard in Maryland ultimately the court's decision will properly rest on 9.5 – 207 wherein the court will make a determination as to which of the jurisdictions is most convenient. Factors have been outlined by the court for consideration. If you have questions about jurisdictional issues involving child custody please feel free to call me or visit my websitehttp://www.yourmarylandlawyer.com/index.html . 1-888-760-7339

Uniform Child Custody Act Maryland

Circumstances arise where parties resident in different states have disputes over the custody of minor children. As a result of the problems most jurisdictions have adopted the Uniform Child Custody Jurisdiction and Enforcement Act. The Maryland statute is found in Maryland Family Law section 9.5–101 through 9.5–318. The implementation of the Act has eroded the concept of continuing jurisdiction over child custody issues. Particularly in those circumstances where a party is seeking a modification of a prior custody award and neither party resides in Maryland. In its simplest form the Act provides that the location which provides the most convenient forum for the court to determine the issue of custody in conjunction with the residents of the children for that six-month period of time immediately prior to filing the petition seeking custody shall be considered the home state. There are exceptions in emergency circumstances and in circumstances where the otherwise home state refuses to accept jurisdiction that Maryland will step in and decide issues for the parties. If you have questions regarding custody issues in a Maryland divorce please feel free to call me. I am happy to answer your questions right over the phone at no cost to you. 1-888-760-7339.

Joint Legal Custody In Divorce in Maryland

Definition of Joint Custody as defined in Taylor v Taylor.

Embraced within the meaning of "custody" are the concepts of "legal" and "physical" custody. Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child's life and welfare. Joint legal custody means that both parents have an equal voice in making those decisions, and neither parent's rights are superior to the other.

If you have questions on issues of joint legal custody divorce or personal injury in Maryland. Please feel free to call I will answer your questions over the phone at no cost to you. 1-888-760-7339

Uniform Child Custody Act Divorce In Maryland

The Uniform Child Custody Act among other things assist the court in deciding which of multiple different states may have jurisdiction to hear a custody action. The threshold typically is the children's residents for the 180 period of time immediately prior to a petition for custody being filed in that state. There are however circumstances where the 180 day threshold is of no force and effect to the then state of residence. For example, there are occasions where a spouse may secretively remove the children from the home state, establish new residency in another state, wait the 180 days, then file seeking custody. Maryland courts will not accept jurisdiction in a custody matter where the circumstances, giving rise to jurisdiction, involve wrongful taking, unjustifiable conduct, and are reprehensible conduct. Typically these are seeking off with the kids. If you have questions regarding jurisdiction or any other matter involving divorce in Maryland please feel free to give me a call 1-888-760-7339. I will answer your questions for you over the phone at no cost to you.

Grandparent Visitation Divorce in Maryland

Maryland law on grandparent visitation has gone through many changes. Previously a grandparent simply have to petition for reasonable visitation with their grandchild. There were no preconditions to the visitation. The outcome of the trial was solely in the court's discretion and the court decision was guided solely upon determining what was in the child's best interest. See Maryland family law § 9-102. An equity court may:(1)consider a petition for reasonable visitation of a grandchild by a grandparent; and (2)if the court finds it to be in the best interests of the child, grant visitation rights to the grandparent. Case law in Maryland has had a very dramatic impact on section 9-102. It is important to note initially that both parents need to be made a party to the action. Presently a presumption in favor of the parents decision concerning visitation with a third party, including a grandparent, should be considered by the court. The third-party must demonstrate that there will be a current or future detriment to the child absent visitation with the third-party as a prerequisite for application of the best interests analysis.

If you have questions regarding grandparent visitation or any other matter involving personal injury, medical malpractice or family law matters please feel free to call my office at 1-888-760-7339.

Use and Possession Affecting Stepchildren Divorce in Maryland

Use and possession in a divorce in Maryland involves the custodial parent having access to use the marital home or personal property acquired during the marriage for the benefit of the minor children in their custody. Often times an issue will arise as to whether or not a child is a child of the family. This occurs in a situation where there is a stepchild for example. Initially, a stepchild was found to be a child of the family the Court of Appeals in Maryland addressed the definition of child of the family to say a child of the family is the natural or adopted child of each of the parties to the divorce litigation. The statute does not include stepchildren within its scope. see Bledsoe 448 A2d 353 (1982).

Restrictions on Visitation Access in Divorce in Maryland

Maryland has declared that a parent's interest in raising a child is a fundamental right that cannot be taken away unless clearly justified. In re Adoption, 103 Md. App 1, 12,651 A 2d 891, 894 (1994). Juxtaposed against this fundamental right is the state's primary obligation to see to the protection of those who cannot protect themselves. Maryland courts have long recognized that under proper circumstances a Maryland court may restrict or deny visitation Painter v. Painter 113 Md. App. 504, 688 A.2d 479 (1997).

To restrict and control access the court must consider the appropriate factors, must make a specific finding of fact on the record stating the reason for its decision, and there must exist a nexus between contact with the parent and harm to the child. If no clear, direct connection is found, then the noncustodial parent's visitation rights cannot be restricted. Boswell v Boswell 118 Md. App. 1, 701 A 2d 1153 (1997), aff’d 352 Md 204, 721 A 2d 662 (1998).

In Boswell, involving a homosexual father, the court focused on non marital sexual relationships affecting visitation restrictions. The restrictions therein prevented visits in the presence of specified persons and at specified times.
In Boswell, the reviewing court initially took note of the trial court's error. Specifically, the trial court failed to articulate any reason for restrictions on access other than what was characterized as the “inappropriateness” of the father’s homosexual relationship. Further the reviewing court took note of the trial court's failure to state on the record the manner in which the children would be harm by the father’s conduct. The court took particular note that the trial court could not have articulated any harmful effect, since there was no evidence to support such a finding. As such there was no showing that the restriction was necessary to prevent any adverse impact on the children. Clearly there was no nexus between conduct and an actual harm or potential harm.

The Court ultimately declared, “restrictions on access cannot be based solely on speculation, inferences, or presumptions about the likelihood of harm unsupported by adequate evidence”.

The Boswell Court recognized it is not necessary for a court to sit idly by and wait until a child is actually harmed before placing restrictions on visitation. However there must be sound evidence demonstrating that a child is likely to be harmed down the road. The need for a factual finding of harm to the child requires that the court focus on evidence-based factors and not on stereotypical presumptions of future harm. Therefore, before the court restricts the noncustodial parent’s visitation, it must make specific factual findings based on sound evidence in the record. If the court does not make these factual findings, instead basing its ruling on personal bias or stereotypical beliefs, then such findings may be clearly erroneous and the order may be reversed. In addition, if the trial court relies on abstract presumptions, rather than sound principles of law, and abuse of discretion may be found.

Maryland law has made clear restrictions on access cannot be based solely on speculation, inferences, or presumptions about the likelihood of harm unsupported by adequate evidence.

It is erroneous fact finding and abuse of discretion to require supervised visitation as necessary to prevent a harm or potential harm that is not supported by sound fact finding.

When a Court is permitted to place restrictions or limitations on visitation they must be reasonable, and must bear a reasonable relationship to the harm they seek to prevent. An “abuse of discretion" is said to occur "where no reasonable person would take the view adopted by the [trial] court," when the ruling is "clearly untenable, unfairly depriving a litigant of a substantial right ……..." North v North 102 Md App. 1, 648 A 2d 1025 (1994).

Siblings and Divorce in Maryland

Ordinarily the best interest and welfare of the children of the same parents is best served by keeping them together to grow as brothers and sisters under the same roof. There is no presumption that the best interest of siblings is preserved by keeping the children together. However generally, Maryland divorce law frowns upon division of siblings. There are a number of cases in Maryland divorce law where the Court has determined that the living arrangement which separated the siblings was to remain in tact since the children were driving in that living arrangement. Davis v Davis 280 Md 119 (1977) is an example where the court upheld the division where the youngest child had resided for two years with the mother without her siblings and had adjusted well to that arrangement. In Byrce v Bryce again the court upheld the division of siblings where the 2 older children had been with the mother and the youngest remained with the father.

If you ever have questions regarding, visitation, or custody or child support issues please feel free to give me a call I'm more than happy to answer your questions. 1-888-760-7339

Attorney appointed for child in Maryland divorce

In a Maryland divorce case provisions are made for the appointment of an attorney to represent a minor child if necessary. The rules that govern the appointment of an attorney to represent a minor child are found in Maryland rule 9-205.1. Generally there are three categories of classifications into which an attorney may fall in his or her representation of a minor child.

One such category is the child's best interest attorney. This attorney is appointed by the court and acts in the child's best interest without being bound by the child's directives.

Another category is the child's advocate attorney. This is a court appointed attorney who represents the child much like the attorney would represent an adult and acts in furtherance of the child's directives.

Finally you have the child's privilege attorney. This is a court appointed attorney who is in the case for the purpose of either asserting or waiving the doctor patient privilege. This category of attorney was once known as the Nagle v Hooks attorney.

If you have questions regarding these issues or any other matter affecting a divorce in Maryland.

Please feel free to call my office

Custody Rights in a Divorce in Maryland

I receive many calls each day from parents asking what rights they have to the care and custody of their children. In a divorce in Maryland each parent has an equal right to the care and custody of their child until a court orders otherwise. See Maryland Family Law Statute 5-203

The parents are the joint natural guardians of their minor child.
(2) A parent is the sole natural guardian of the minor child if the other parent:
(i) dies;
(ii) abandons the family; or
(iii) is incapable of acting as a parent.
(1) are jointly and severally responsible for the child's support, care, nurture, welfare, and education; and
(2) have the same powers and duties in relation to the child. (d)(1) If the parents live apart, a court may award custody of a minor child to either parent or joint custody to both parents.
(2) Neither parent is presumed to have any right to custody that is superior to the right of the other parent.

Child Custody Lawyer in Maryland

In Maryland the biological parent has rights to the care and custody of their child that are superior to any non biological persons. In fact in the event of a custody dispute the non biological party must prove the biological parent is unfit or there are exceptional circumstances affecting the best interest of the child as a threshold to the court ordering them to have custody. See Ross v Pick, 199 Md 341 86 A 2d 463 (1952). If you have encountered this situation where someone is trying to win custody over you for the care of your child, call me I am happy to discuss the case with you over the phone at no cost to you. 1-888-760-7339

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.

Divorce In Maryland. Can I Force My Spouse Out of the House?

I receive maybe 25 calls a week on this subject. The answer is maybe and it depends.

If there is an act of violence or the threat of violence, then yes you can force your spouse out of the house under the Maryland Domestic Violence Statue.

Also, obviously the answer is yes if your spouse simply agrees to leave.

However, will Maryland law order your spouse from the home, absent violence. The answer appears to be no. Assume you have a spouse and a minor child. Your spouse will not leave. What can you do to get them out of the house? Will Maryland Divorce law help you in this situation? In a typical custody battle, the court can award use and possession when the parties are separated. This use and possession order will keep your spouse out of the home. However if the spouse refuses to leave then what? It is true that parties can pursue a limited divorce in Maryland based upon constructive desertion and still live under the same roof. This is a recent and some what dramatic change of position for the courts in Maryland. See Ricketts v Ricketts. Oddly Maryland Family Law Article 5-203 states the court does not have the power to award custody to either party when the parties are not separated. This was addressed by the Ricketts court and it was determined that 5-203 must be read in conjunction with § 1-201(a) and (b). The ultimate conclusion of the court is the trial court, in short, has the jurisdiction and power to determine the custody, visitation, and support even when the parties continue to live together. You will note Ricketts did not mention the right to order use and possession. As such the court will grant you custody and support but still will not order your spouse out. This decision makes sense when you realize Maryland public policy as reflected in Maryland divorce law wants marriages to survive and families to stay together.

Child Custody Factors in Maryland Divorce

As we know custody in a Maryland Divorce occurs on two different levels. There is legal custody and physical custody. Before a judge makes a determination as to what is in the child's best interest the judge will consider a number of factors on both of these issues. As to physical custody: The factors a judge considers as to physical custody are as follows:1) fitness of the parents; 2) character and reputation of the parties; 3) desire of the natural parents and agreements between the parties, 4) potentiality of maintaining natural family relations, 5) preference of the child, 6) material opportunities affecting the future life of the child; 7) age, health and sex of the child; 8) residences of parents and opportunity for visitation; 9) length of separation from the natural parents; and 10) prior voluntary abandonment or surrender.

While the court considers all the above factors, it will generally not weigh any one to the exclusion of all others. The court should examine the totality of the situation in the alternative environments and avoid focusing on any single factor such as the financial situation.

In my experience the judge will reward reasonable behavior by a parent in promoting the relationship between the child and the otherwise non custodial parent. Oddly the best way to win the war is not to battle. That does not mean go to war unprepared. And this does not apply to every case. There are circumstances where a parent actually does cause harm to the child. In this case there must be contact that is controlled. However, you must think in terms of what is best for the child. Understand judges generally believe that a child benefits from both parents being involved in their lives. The party that promotes relationships and encourages contact, tempered by reasonable decision making, is far ahead in the custody battle.