Custody is broken into two different types in Maryland: legal custody and physical or residential custody. In a custody case, the court can make a determination as to both legal and physical or residential custody.
LEGAL CUSTODY
Legal custody involves a parent's right and obligation to make long-range decisions affecting a child's health, education, discipline, religion, residence and general welfare. Courts may award parents either sole legal or joint legal custody of their minor child(ren). If one party is awarded sole legal custody, that parent has the authority to make major decisions affecting the child(ren), without consulting with the other parent. If the parties are awarded joint legal custody, both parents have equal voice in decision making regarding the major decisions affecting the child(ren), and neither parent may make unilateral decisions.
PHYSICAL OR RESIDENTIAL CUSTODY
Residential custody involves the day to day decision making affecting a child during the time the child(ren) are with each parent. Physical or residential custody may be awarded to one parent (sole physical custody) or to both parents (joint physical custody). Sole physical custody generally means that one parent's home is the child's primary residence. The non-custodial parent is normally entitled to visitation. Joint physical custody means that the parties share or divide residential custody of the children; however, it does not necessarily mean a 50-50 split. The term "shared custody" is an economic term, which relates to the calculation of child support. See CHILD SUPPORT IN MARYLAND.
FACTORS IN DETERMINING CUSTODY
The overriding factor for the court in making a custody determination, is "What is in the best interest of the child?"
In deciding the custodial arrangement that serves the best interests of the child, the court will consider the following factors:
- fitness of the parties
- character and reputation of the parties
- the desire of the natural parents and any agreement between the natural parents
- the potential to maintain natural family relations
- the child's preference, if the child has reached an age and maturity to form a rational judgment
- any material opportunities affecting the future of the child
- the age, health, sex of the child
- the suitability of each parent's residence, and whether the non-custodial parent will have adequate opportunity for visitation
- how long the child has been separated from a natural parent seeking custody
- the effect of any prior voluntary abandonment or surrender of custody of the child
- whether the status quo will cause some injury to the child
If the court considers awarding joint custody, it will consider the following factors:
- capacity of the parents to communicate and to reach shared decisions affecting the child's welfare
- willingness of the parents to share custody
- fitness of the parents
- relationships established between the child and each parent
- preference of the child
- potential disruption of the child's social and school life
- age and number of children
- sincerity of each parent's request for custody
- financial status of each parent
- impact of custody determination on State or Federal assistance
- the benefit to the parents
- other circumstances which are specific to each particular case
In a contested custody case, the court may do all or some of the following:
- The court may order the parties to participate in a custody evaluation. This involves a mental health professional interviewing the parties and the children, contacting friends, relatives and acquaintances of the parties, possibly conducting psychological testing, and observing the interaction between parent and child(ren). The custody evaluator will generally testify at the custody trial and present his or her finding and recommendations with respect to the appropriate legal and residential custody arrangement for the child(ren). The custody evaluation may be done through the court's Family Services Division, or may be done by a private mental health professional.
- The court may appoint a guardian ad litem for the children. A guardian ad litem is a court-appointed attorney for the child(ren) who is generally appointed to represent the best interests of the child(ren) and to advocate on behalf of the child(ren) and make a recommendation as to what custody arrangement is in the best interest of the child(ren). If the child(ren) have been in therapy with a psychologist, psychiatrist or a licensed clinical social worker, a guardian ad litem may also be appointed to waive, or not, the privilege that exists between a child and that mental health professional.
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