Six Steps to Child Custody in Maryland

Ending a relationship with a spouse or partner is hard enough. Where you have a child in common, divorce or separation can take on another level of emotional strain and complexity. Where childless couples can make a clean break, parents must find ways to put their children’s needs first and peacefully cooperate with one another even after the divorce is final. Here are six steps to child custody in Maryland, and other helpful tips to make navigating child custody easier on your children, and yourself.

Step 1: Do You Have Standing (Authority) to Ask for Custody?

Before you can begin to navigate Maryland’s child custody laws, you need to know if you have authority or the right to pursue custody in the first place. In the legal world, this is called “standing.” Standing to seek custody is automatic for birth mothers and spouses that were married throughout the mother’s pregnancy. However, if a child’s parents are unmarried, Maryland law gives custody of a child to his or her mother. As an unmarried father, you will need to be sure you have “established paternity” before you can seek custody.

How an Unmarried Father Establishes Paternity

• Signing an Affidavit of Parentage (often at the hospital after the child’s birth)
• Marrying the child’s mother and acknowledging himself as the father (in writing or verbally)
• Asking the court to declare he is the father with proof (including DNA testing)

You shouldn’t let questions about paternity stop you from talking to a family law attorney, though. Often paternity and custody issues can be resolved in the same court case. Even if you aren’t on the child’s birth certificate or have questions about whether you are the child’s biological father, your family law attorney can help you answer those questions and establish your standing to seek custody of your children.

Step 2: Set Priorities Based on Child Custody Laws in Maryland

Once you know you have (or can establish) standing, the next step is to decide what you want custody to look like after your relationship is over. Many parents come to their initial meeting with a lawyer afraid they will “lose their kids” in the divorce or break-up. Others expect to be awarded “sole custody” -- meaning they want to cut the other parent out of their child’s life altogether. Neither of these are likely to be true.

It is important that any ideal custody arrangement be based on how Maryland courts decide child custody, and on how well you and your child’s other parent can cooperate. Maryland child custody orders can be sole or joint for both legal and physical custody.

Legal Custody

Legal custody is essentially decision-making authority for major educational, medical, and religious matters related to the child. It says who decides where your son is enrolled in school, whether your daughter gets braces, and when your child is baptized. Joint legal custody is essentially a promise to work together to make those decisions. Under sole legal custody, one parent has the final say, but must still inform the other parent.

Physical Custody

When most people think of custody, they are imagining physical custody: where the child stays on a day-to-day basis. However, many parents misunderstand what sole physical custody looks like. In Maryland, physical custody is based upon overnights. Unless your former partner is an unfit parent, in Maryland they are going to be awarded access with the child. This is generally a good thing for you and your child. It allows your son or daughter to maintain a relationship with their other parent, and it gives you a chance to have a life outside of your children.

What visitation rights for non-custodial parents look like depends on many factors, including work schedules, geographic distance between the parents, and each parent’s desire to be involved in the child’s day-to-day life. There are many reasons why joint physical custody may be best for you and your family. However, in other cases, even visitation needs to be carefully structured to protect your child.

Your Maryland family lawyer can help you understand the pros and cons of physical and legal custody, and help you decide if fighting for sole legal custody and sole physical custody is right for your family. That way you start your custody case with an idea of what your priorities are, and where you can be flexible to work with your child’s other parent, instead of against them.

Step 3: Starting the Court Proceedings

Once you know what your desired outcome is, it is time to start the paperwork. Your Maryland family lawyer will prepare a Complaint for Custody (or a Complaint for Paternity, if you are an unmarried father without an Affidavit of Paternity). You should review this document very carefully. Make sure all the details are correct before your attorney files it. Don’t exaggerate and don’t hide the truth. Instead, work with your attorney to create an accurate explanation of what has happened and what you want custody to look like going forward.

In some cases where one parent is hostile or there are pressing issues, your lawyer may recommend seeking an emergency custody order. In Maryland, anyone with standing to seek custody may file an emergency petition for child custody and ask the court to hear the issue right away, even without notice to the other parent (this is called an ex parte hearing).

When to File an Emergency Petition for Custody

An emergency custody hearing is only granted in extreme circumstances. An emergency hearing may be appropriate if:

• Your child has been abused by a parent, their significant other, or someone else in the home
• Your former partner has been convicted of child molestation (even without proof of current abuse or neglect)
• Your child is at risk of neglect or abandonment
• The other parent is making plans to take the child out of state without permission
• The home where your child resides is without utilities, is in foreclosure or eviction proceedings, or has been damaged by a natural disaster
• Your former partner has a substance abuse problem that threatens the child

If the Maryland family court agrees that your child’s current living conditions are dangerous, the judge may award you temporary child custody while your case is pending. The hearing to make this decision can happen days, or even hours, after your attorney files the motion, so it is wise to be ready to remove the child from the other parent’s care on short notice.

Step 4: Negotiation and Mediation

In the absence of an emergency, it takes time after you file your complaint for the Maryland family court to hear your case. In the meantime, you and your attorney should be negotiating with your former spouse or partner to see if you can agree on custody. In many cases, your former spouse or partner’s ideal custody arrangement won’t be the same as yours. If there are no allegations of physical abuse, the Maryland Court will order you and your co-parent to participate in co-parenting education and mediation. Even before these things are ordered by the Court, negotiation, formal mediation, or adopting the collaborative divorce process, may help you and your family settle on a custody arrangement that works for everyone in a manner that is more efficient and cost-effective than traditional litigation.

Why You Should Work Toward a Custody Agreement

In almost every case, reaching a custody agreement will be better than any decision the court may reach at trial. This is because:

• You know the details of your life and your schedule better than the judge
• Hard feelings from “losing” a custody battle get passed on to the child
• Child custody trials are emotionally and financially expensive
• Family court records are public and your child could get access to them in the future
• Parents who work together to create custody agreements are more likely to follow them
• Learning dispute resolution methods reduces the risk of custody enforcement actions

Work with your family law attorney to identify middle ground between your ideal custody arrangement and your former partner’s position. With the help of a mediator or collaborative coach you may even discover a resolution neither of you considered at the start of your case. Be open to these new ideas and the possibility that you may reach a custody agreement without ever going to court. If your family does reach a custody agreement, your Maryland family law attorney will help you put the agreement into a court order to be signed by the judge, and your case will be closed.

Step 5: Proving the Child’s Best Interests to the Maryland Family Court

If negotiations fail, it will be up to the judge to decide upon a child custody and visitation arrangement for your family going forward. Your case will be scheduled for a trial where both sides will have the opportunity to prove their version of custody is in the best interest of the child. In most cases, that means both you and your spouse will be asked to testify. You may (and most likely should) also present other evidence and witnesses such as your child’s teacher, therapist or caregiver, or other relatives or friends who have seen both parents interact with the child.

How Maryland Judges Decide Custody: The Best Interests of the Child

Once all the evidence is presented, the judge will apply that evidence to several factors to determine the “best interests” of the child:

• Who was historically the primary caregiver
• Physical and psychological fitness of each parent (and whether accommodations can be made for any disability)
• Character and reputation of each parent
• Parents’ desires and current custody agreements (even if they are partial or temporary)
• Ability to maintain existing family relationships (including extended family and the other parent)
• Preference of the child (often through an interview with the judge without the parents present)
• Financial resources affecting the future life of the child
• Age, health, and gender of the child
• Geographic location of parents’ residences and opportunity for visitation with extended family
• Length of separation between parent and child
• Prior history of abandonment or surrender of the child
• Religious views affecting the physical or emotional well-being of the child

How to Get Sole Custody in Maryland

If you are trying to get sole custody but your former spouse believes joint custody is appropriate, the judge will also have to consider:

• Parents’ ability to talk about and reach joint decisions for their child’s care (this is the court’s top priority)
• Parents’ willingness to share custody
• Fitness of parents (Will a physical or psychological condition affect a parent’s ability to make decisions for the child?)
• Child’s relationship with each parent
• Child’s preference
• Stabilizing or destabilizing influences on the child’s school and social life (such as frequent moves or transportation problems)
• Physical closeness of parents’ homes
• How parents’ employment will affect their ability to share custody (i.e. work trips or overtime)
• Age and number of children
• Financial status of the parties
• Benefit to parents
• Sincerity of the parents (whether they are using their children as bargaining chips for other terms of the divorce)
• The effect of joint custody on state or federal assistance programs

Whether you are fighting to get sole custody, or are trying to be an active participant in your child’s life, proving the child’s best interests takes preparation and strategy. You should work with your Maryland family law attorney from the start -- even before the Complaint for Custody is filed -- to develop your arguments and gather the evidence you will need to prove your case.

Step 6: Enforcement and Modification

Even if you and your former spouse agreed on the initial custody agreement, 18 years is a long time to maintain a schedule. Circumstances can change, and people’s willingness to cooperate can change with them. As your children grow older, you may need to come back to the negotiating table to modify the visitation schedule, or even file a motion to enforce your child custody order. Physical and Legal custody in Maryland is always subject to modification based upon the best interest of your child and a material change in circumstances from your original child custody determination. Your family law attorney can help you consider your options to enforce or modify your child custody arrangement, and work with your ex-partner and the court to protect your relationship with your child.

At the Law Office of Shelly M. Ingram, our Maryland child custody lawyers can help you navigate the child custody process and put your children first. We will guide you from determining if you have standing to negotiating a custody agreement or proving your child’s best interests in court. When circumstances change and you need a modification, we can help you find a new arrangement that suits you and your family Contact us today to schedule a consultation with an attorney.