The central concern of any family law case with minor children is doing what is best for a child. While divorce is once scenario where child custody may arise, it is by far not the only one. The laws regarding child custody in Maryland are complicated as they involve statutory law and case law, as well local court rules and procedures. While the law presumes that the best interest of the minor children are to be in the care and custody of both fit parents, this situation may change in case of a divorce or any other legal separation of the child’s parents. The Courts look at each case differently and each set of facts may have a different outcome. Courts have the power to make decisions concerning the care and custody of minor children; including where the children live and which parent(s) gets to make major decisions about the children’s welfare and future.
A Montgomery County child custody lawyer could help to fight for what is best for you and your child or children. They could push for your ability to get access to your children and to structure an equitable time-sharing schedule in the best interest of the child(ren), or push for any needed modifications of existing orders.
Child Custody and the Law
The law in Montgomery County and throughout the state gives neither parent preference in determining child custody. While people may have assumed that a child would remain with a mother, Md. Code, Family Law §5-203(d)(2) states that neither parent has a presumed right to custody in a child custody matter. In addition, Md. Code, Family Law §5-203(d)(1) gives the court the ability to award custody to either parent or to form a joint or shared custody arrangement.
To determine the final custody arrangement, the court will consider the totality of the circumstances to come to a decision that is in the best interests of the child(ren). Common factors in awarding custody to a parent include, but are not limited to:
- The ability of a parent to provide a stable home life
- The character of the parents
- The fitness of each parent
- The age, health and sex of the minor child(ren)
- Any history of violence or other abuse
- The residences of the parties
- Proximity to school or other extracurricular activities
- Whether one parent abandoned or was separated from the child
- Any special healthcare needs
- The wishes of the child if the child is of a certain age and sound judgment and only under certain circumstances
A MoCo attorney could help parents to understand the legal factors that could play into a court’s decision concerning child custody. And more importantly help guide your case to advocate for you and your child(ren)’s best interest.
Will Courts in Montgomery County Favor the Mother or Father?
Over the years, the courts have made it clear that there is no preference under the law for one parent or another. While in the past there was a common misconception that the law is more favorable toward mothers, there is nothing written into statute that makes this the case. In fact, the case law is clear that there is no preference based on gender.
That said, there is no guarantee that a judge overseeing a particular case will come to the same conclusion of one parent over another. Judges are human beings and have a great deal of discretion in these cases as long as they follow the mandate of the law. Therefore, it is more important than ever to have legal counsel that can advocate for a parent’s rights during a custody dispute.
The Preference of the Child
Some states give more weight than others to the child’s preference for which parent they live with. In Montgomery County, the court has no obligation to give any weight to a child’s preferences. In fact, the judge can choose not to hear from the child at all in some cases.
Many judges will discourage the parties from bringing a child to court and will not allow them to give their preference on where they want to live. In some cases, a judge will interview the child away from both parents in chambers in order to avoid the trauma to a child of having to testify in court. The record of this conversation, or more likely just a summary from the judge,is made available to the parents afterwards.
A minor child that is age 16 or older even has the right to petition for a change in custody on their own. This is possible with or without the support of either parent. When a 16-year-old minor petitions the court, the judge is again under no obligation to grant their request. However, the court will consider the petition and—if necessary—set a hearing to allow the minor to make their case for a change in custody. In this instance the 16 year old may also have an attorney advocate for them to put on a case for where the child may want to live.
Physical Custody vs. Legal Custody
Most parents focus on the concept of physical custody when dealing with the issue of child custody. Physical custody determines where and with whom the child lives. Shared custody arrangements encompass anywhere from a few nights per week for the non-custodial parent to equal time-sharing schedules.
If the court awards sole physical custody to one parent, the child lives with that parent most of the time, but the other parent will have access and visitation rights. Although there is no presumption for joint custody in Maryland, the courts of the state do favor a shared custody arrangement to allow both parties ample time with their children. If there are reasons you do not support such a schedule, a local attorney can advocate for the custody arrangement that you want.
Physical custody is just one part of child custody. The right to have a say in important decisions concerning the future of the child is just as important. Known as legal custody, this includes the right to choose a school for the child, to make medical decisions, to have a say in the child’s religion, and to choose a child’s afterschool activities.
A MoCo lawyer could help to fight for your right to both legal and physical custody of your children.
What to Include in a Custody Agreement
Every child custody case requires a parenting plan. These plans are essentially the final agreement on custody rights for each parent. If both parents agree to a plan, they can submit a joint plan to the court for approval. These written documents will lay out how decisions are made regarding the child as well as set out their living arrangement. Visitation schedules are also set using these documents. With that in mind, there are several items that should be included in every parenting plan.
Statement of Physical and Legal Custody
First and foremost, a custody agreement should set out the specifics of both physical and legal custody. The agreement should make clear whether there is sole or joint custody. If the agreement calls for joint physical custody, the plan should spell out when the children are at one home and when they are at another. This includes weekends, school days, holidays, and school breaks.
Visitation Schedules
In addition to custody, a parenting plan should also spell out visitation schedules. For some parents, it is helpful to schedule out every single day of the year to ensure there are no misunderstandings. Visitation often alternates on weekends and holidays, with some visits happening on school nights.
Duties and Responsibilities
The plan should also make clear the duties and responsibilities each parent will hold. These duties can range from providing transportation for a child to school or other activities to ensuring the child is brought up under agreed religious beliefs. This section could be as general or specific as two parents require.
Methods for Dispute Resolution
Ultimately, any major disputes regarding the parenting plan are up to the court to address. However, it is possible to include language in the parenting plan to guide parents towards resolving conflicts amicably without the need for court intervention.
Making Changes to the Custody Order
For most parents, life can change in rapid and unexpected ways. For many parents, these changes could render a custody arrangement ineffective or unworkable. This could be true despite the plan previously working out for several years. When life circumstances change, it is possible for a custody agreement to change with it.
Material Change in Circumstances
The courts will not consider a change in the custody arrangement each time a minor factor in a parent’s life changes. Instead, modifying a custody order is only an option when a parent experiences a “material change” in circumstances.
A material change in circumstances must involve a substantial difference in a parent’s life compared to when the order was first entered. Some common examples involve the mismanagement of custody funds, a dangerous home situation, or an out-of-state move by the parent with physical custody.
Material changes could also help a parent that lacks custody obtain legal rights. For example, a parent that clears up their legal issues or obtains adequate housing could become eligible for custody.
The Process of Altering a Custody Order
There is a formal process that comes with modifying a custody order in Montgomery County. Obtaining a modification is never easy, and a technical error made during this process could only make things more difficult.
Under state law, once a custody order is issued the courts will assume this order is in the best interest of the child until a party claims otherwise. To challenge a standing custody order, a parent must file a petition seeking to alter the terms of a custody agreement. Once this motion is filed, a copy must be served on the other parent. Only under the rarest of circumstances will a court proceed on a custody issues without providing notice to the other parent. Once the petition is filed and notice is served, the court will set a hearing to determine if a change in child custody is necessary.
The Best Interest of a Child
The guiding principal for altering a child custody agreement is the same as when the original agreement was entered. When the court makes this determination, they must do so with the best interest of the child in mind. Even if there has been a material change in circumstances, the court will not agree to alter the custody agreement unless it is in the child’s best interest to do so.
There is no firm guidelines on how a court will determine if a child’s circumstances are likely to improve. The court will pay careful attention to a parent’s reasoning for their request for a change. The court will not agree to modify custody agreements based on inconvenience, but they are more likely agree to a change if visitation or custody would otherwise become impossible. If only the parent is likely to benefit from a change in custody, the court is less likely to agree to it.
Third-Party Custody Rights
There are often interested third parties prepared to seek custody of a minor child, even when one or both of the child’s parents are still in the picture. Typically, a third party that is seeking custody of a child that they have a close relationship with or helped raise despite the lack of any parental rights. These third parties are often aunts, uncles, grandparents, or former spouses of a parent that never formally adopted a stepchild.
There are two types of third parties when it comes to petitioning for custody of a child: de facto parents and other third parties. The bar for a third party that is not considered a de facto parent is steep. Traditionally, these individuals would have to establish some form of exceptional circumstances in order to obtain custody of a child. This typically involved evidence that a parent was unfit or had abandoned the minor child. Given the natural rights of a parent, this is a difficult burden to meet.
De Facto Parents
In 2016, a court decision introduced a new status—de facto parent. A de facto parent is someone that had a major role in raising and caring for a minor child despite the lack of any legal parental rights. By establishing de facto parenthood, a person could obtain visitation or custody rights of a child without needing to meet the high burden of establishing exceptional circumstances or parental unfitness. That said, custody issues will always come down to the best interest of the child. The court determine a person to be a de facto parent and still refuse to provide them with custody or visitation rights.
There is a four-factor test that a person must meet in order to be considered a de facto parent under the law. The first factor requires a parent of the child to have consented to the de facto parent forging a parent-child relationship with a minor.
The second factor requires a specific living arrangement. De facto parenthood requires that the child and adult lived within the same household. The third factor requires the adult to have assumed many of the obligations of parenthood during that time. These obligations include contributing to educational, healthcare, and hygienic needs.
Finally, a sufficient amount of time must have passed for a relationship to form. Even if the other three elements are met, de facto parenthood is only possible if the relationship developed over a sufficient length of time.
Custody Rights for Grandparents
In Montgomery County, grandparents are treated no differently than any other third party seeking custody of a child. While some states grant specific legal rights to grandparents, these rights do not exist under state law. A petition for custody or visitation from a grandparent is treated essentially the same as if it came from any other party other than a parent in that they must establish their position as a de facto parent to give themselves the best chance of obtaining custody.
Contact a Montgomery County Child Custody Attorney Today
The question of what will happen to the children should be at the front of all peoples’ minds who are going through a divorce or a separation.
A court will look to the standard of the best interests of the minor child(ren), which includes who will be able to make decisions concerning the child’s living arrangements, which parent has the right to determine how the child is raised, and set an appropriate access schedule for the parties. It is important to remember that child custody is very subjective, which is why you should seek out a MoCo child custody attorney for all questions regarding the care and custody of your children.
A member of our team could fight by your side to convince a court of your ability to provide a proper home for your children. This could result in a fair custody arrangement that meets your goals and provide a stable life for your children. Nothing is more important than your kids; let a Montgomery County child custody lawyer fight for you both.
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