Custody

The following is a synopsis of the law regarding custody. It is not intended to be a complete summary of the law and should not take the place of legal advice from an attorney:

When discussing custody, we are generally referring to the physical and legal arrangements that have been reached between 2 parents who no longer live together. Before diving into the nuts and bolts of the laws surrounding custody, it is important to note that there are 2 separate areas of custody: 1) legal custody and 2) physical custody.

1) Legal Custody - Legal custody deals with making decisions regarding the child(ren)'s welfare. For instance, where the child(ren) go to school, what doctors they use, their medical treatment, religious organization, etc. 

2) Physical Custody - By contrast, physical custody deals with the day-to-day questions of where the child will live, who they will play with, etc. 

In Maryland, the "default" setting is for joint custody on both physical and legal custody. The court believes that it is generally in the best interest of the child for both parents to "co-parent." As a result, in most cases, absent unusual circumstances, custody will usually be awarded jointly. However, in cases where the parents do not get along and/or cannot effectively co-parent (ie. live too far away, etc.), then the court will have to establish one parent as the primary custodial parent for purposes of physical and legal custody.

In cases where joint custody is not feasible, the court engages in a weighing test known as the "Best Interest of the Child" or "BIC" test. The following are some (not all) of the key factors the court takes into account:

a) who is the "primary caregiver"; b) who is most "fit" (ie. physically, mentally, financially, etc.); c) character and/or reputation of the parent; d) child preference (if child is old enough to have one); e) allegations of abuse (if present); age/health/gender of child; f) material opportunities for the child (who can provide the best opportunities for the child); g) past instances of neglect, etc.

These and other factors are then weighed by the court and the parent that can act in the Best Interest of the Child will generally become the primary custodial parent. Absent unusual circumstances (ie. child abuse allegations), the other parent will generally receive visitation rights (ie. summer vacation, every other week, etc.). It is important to note that it entirely possible for one parent to have primary physical custody, but both parents to share legal custody. Joint legal custody is preferred, unless the parents cannot communicate with each other, in which case, the BIC factors come back into play.  

 

 

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