Types of Custody
The difference between legal custody, physical custody, sole custody, and joint custody:
Legal Custody
Legal custody of a child means having the right to make decisions about a child's rearing. A parent with legal custody can make decisions about schooling, religion, and medical care. Courts sometimes award joint legal custody, which means that the decision making is shared by both parents.
If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement. You won't get fined or go to jail, but it will probably be embarrassing and cause more friction between the two of you which may harm the children. What's more, if you're represented by an attorney, it's sure to be expensive.
If you think you have circumstances that make it impossible to share joint legal custody, you can go to court and ask for a change in custody so that you have sole legal custody. But, in many states, you will have to overcome a presumption that joint legal custody is preferable.
Physical Custody
Physical custody means that a parent has a right to have a child live with him or her. Some states will award joint physical custody to both parents when the child spends significant amounts of time with both parents. Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.
How can I get emergency custody in Maryland?
In order to be awarded temporary custody, you must first file a request for a hearing and an Order for Temporary Custody and Support along with your Complaint for Divorce or Custody.
What do judges consider in child custody cases in Maryland?
The judge will consider whether someone seems fit to be a parent or guardian considering time availability, financial ability mental stability, criminal past, and time availability. Maryland courts examine a wide range of indicators to determine fitness or unfitness for caregiving
Is Maryland a fifty-fifty custody State?
.In Maryland, there is no presumption of shared custody of children between parents, and either legal or physical and custody does not require a precise split of time. As a rule, if parents have shared physical custody, each parent is awarded thirty-five per cent or more of the overnight visits.
Sole Custody: Under sole custody, a person is granted sole legal custody, sole physical custody, or both sole legal and sole physical custody of a child.
There are other types of custody available in Maryland, including pendente custody while custody is in the process if being determined, and emergency custody.
What is Jurisdiction?
Jurisdiction is the combination of rules that determines which court hears a case. Jurisdiction may be personal jurisdiction or subject matter jurisdiction. In Maryland, subject matter jurisdiction to hear custody and visitation cases lies with the Circuit Courts. A child custody case requires that
The child lives in Maryland, the child lived in Maryland within the past six months, the child does not live in Maryland, but the parent filing for custody lives in Maryland, the child and at least one of the parents has a significant connection with Maryland, or the child is physically present in Maryland and was abandoned, or emergency protection is necessary.
Best Interests of the Child Maryland courts will ultimately determine custody based on the best interests of the child. They will consider a variety of factors, including the identity character and reputation of the primary caregiver, agreements between the parties, the ability to maintain family relationships, and the preferences of the child.
There are various types of child custody that can be ordered in a Maryland court.
De facto Custody: who has custody of a child before the court is involved?
Emergency Custody: When there is an imminent risk of significant or immediate harm to a child, a parent can request emergency custody. This usually involves a procedure through the Circuit Court which will order temporary custody of a child.
Joint Custody: In Maryland, joint custody may consist of joint legal custody, joint physical custody, and combination custody. Under joint legal custody, each parent has an equal voice in making important decisions for the child. Under shared physical custody, the child has two residences and spends at least thirty-five percent of the time with each parent. Combination custody involves both legal custody and physical custody.
Get Help With Custody Cases
We can assist you with your child custody case. We maintain that every client deserves personal attention, and we work conscientiously to make sure that you get the best representation possible for your child custody case.
How will child custody be determined in Maryland?
There are no set rules on who will automatically get custody of the children. In Maryland, like many other states, the one ultimate standard in determining custody is what is in “the best interest of the child.” There are statutory factors that the court must consider to determine the best interest of the child.
Who will get custody of a child in Maryland?
Neither parent will automatically get custody of children. In Maryland, as in many other states, the ultimate standard in determining custody is what is in the best interest of the child. There are statutes prescribing factors that the court must consider to determine the best interest of the child.
Kinds of Court Ordered Custody and Definitions
De facto Custody - De facto custody means who actually has custody of the child before the court is involved. De facto means in fact.
Emergency Custody. If you believe there is an imminent risk of immediate and substantial harm to your minor child, you may request emergency relief. The specific procedure to request emergency custody can vary from one jurisdiction to another, but hearing is usually held quickly after the request is filed. Emergency custody is a temporary order, and you will need to pursue your case until there is a final order for permanent custody. Although emergency custody is temporary, it is not the same as pendente lite custody or temporary custody.
Joint Custody - Joint Custody may refer to three kids of custody: Joint legal custody, Shared physical custody, and combination legal and physical custody.
Under joint legal custody, cooperate and share the care and control of a child. Joint legal custody involves the right to make long-term plans and decisions for religious training, the education, discipline, non-emergency medical care and other areas of major significance concerning the child's welfare. The court may order legal and physical custody in several ways.
Physical custody concerns spending time with the child and making decisions about everyday needs, such as where the child lives. The court may order legal and physical custody in several ways. Physical custody is sometimes referred to as parenting time.
Sole Custody . Sole custody may be sole legal custody, sole physical custody, or both.
Split Custody of two or more children. Under split custody, one parent has sole custody of some of the children, while the other parent has sole custody of the remaining children. Split custody is easily seen in a family in which there are two children, and each parent is granted full physical custody over one child. Some of the factors that be considered in awarding split custody are ages of the children and their wishes. As a rule, the courts do not favor split custody.
Temporary Custody. Temporary custody may include pendente lite, meaning pending the litigation. Before you begin litigation, you will need to file for temporary custody. Temporary custody will apply on the best interests of the child standard. It is not an initial award of custody. Instead, it is temporary custody while you wait for the court to hold a hearing. To receive temporary custody you must file a request for hearing and an Order for Temporary Custody and Support along with your Complaint for Custody or Divorce.
Sole Custody
How can I keep custody of my daughter when her father has a criminal record?
One parent can have either sole legal custody or sole physical custody of the child. In most states, courts are moving away from awarding sole custody to one parent and toward enlarging the role a divorced father plays in his children's lives. Even where courts do award sole physical custody , the parties often still share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In that situation, the parents would make joint decisions about the child's upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights.
Courts generally won't hesitate to award sole physical custody to one parent if the other parent is deemed unfit -- for example, because of drug or alcohol dependency, a new partner who is unfit, or charges of child abuse or neglect.
It's understandable that there may be animosity between you and your ex-spouse. But it's best not to seek sole custody unless the other parent causes direct harm to the children. Even then, courts may simply allow supervised visitation, while still ordering joint legal custody.
Joint Custody
Parents who don't live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:
joint legal custody
joint physical custody (where the children spend a significant portion of time with each parent),
or
joint legal and physical custody.
It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.
When parents share joint custody, usually they work out a schedule according to their work requirements and housing arrangements and the children's needs. If the parents cannot agree on a schedule, the court will impose an arrangement. A common pattern is for children to split weeks between each parent's house or apartment. Other joint physical custody arrangements include:
alternating months, years, or six-month periods, or spending weekends and holidays with one parent, while spending weekdays with the other.
Joint custody has the advantages of assuring the children continuing contact and involvement with both parents. And it alleviates some of the burdens of parenting for each parent. There are, of course, disadvantages:
Children must be shuttled around.
Parental noncooperation or ill will can have seriously negative effects on children. Maintaining two homes for the children can be expensive.
If you do have a joint custody arrangement, maintain detailed and organized financial records of your expenses. Keep receipts for groceries, school and after-school activities, clothing, and medical care. At some point your ex may claim she or he has spent more money on the kids than you have, and a judge will appreciate your
Bird's Nest Custody
Bird's nest custody is a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their out time in separate housing of their own.
The terms "sole custody" and "joint custody" are somewhat generic.
They represent categories of custody, but custody itself is best understood as a continuum, as unique as the parents who divorce.
Imagine a continuum with parents who are completely cooperative at one end and a single parent raising children alone, with no involvement on the part of the other parent, at its other end. At the cooperative extreme, parents may live next door to each other and the children may go back and forth interchangeably. At the other, the non-custodial parent may have died or disappeared. While the former example is more usual than the latter, your family probably falls somewhere in between
Types of Custody
In general, legal custody refers to whether one or both of the parents make legal decisions regarding the child such as educational, medical or religious choices. A court can give parents joint legal custody, in which case they make such decisions together, or give one parent sole legal custody, in which case that parent makes decisions alone, although the other still has a right to be kept fully informed.Physical custody refers to the child's living arrangements. A court can give both parents physical custody, in which event they share parenting time on an approximately equal basis, or it can give one parent primary physical custody and the other more limited parenting time.
It is possible for a court to award joint legal and joint physical custody to the parents. However, a court can also award joint legal custody, but give one parent primary physical custody. On rare occasions as when one parent is mentally impaired but otherwise a positive influence, a court can award sole legal custody to one parent, with a shared physical custody arrangement.
Factors to Consider
What's best for your children depends on many factors.
You and your spouse would be good candidates for joint legal custody if:Both of you are good parents;
Each of you trusts the other to be a good parent;
Each of you has the maturity to set aside the personal differences that gave rise to the divorce because your primary focus is on doing what's best for your children;
and There is no history within your relationship of domestic violence or other control issues that would make joint decision-making difficult or impossible. The very worst place for children to be is at the center of ongoing conflict between their parents.
Parents Working Together
Regardless of whether or not joint custody is appropriate for your case, please understand that parents can and should attempt to work together in most cases, even when one parent has sole custody. There are unusual situations in which the other parent is so harmful that your duty, as a good parent, is to protect your children from him or her. Fortunately, this is rare. In the vast majority of cases, children of divorce will do best when both parents take a positive and active role, and each encourages an ongoing, meaningful relationship with the other parent.
The Importance of Consulting an Attorney
There are many ways in which custody issues impact divorce.
To explore the various types of custody in adequate detail and evaluate which may be best for your children, consult with a competent domestic relations attorney.
Please keep in mind that custody should be done right the first time. If you enter into a custody agreement that is inappropriate, or if the court is presented with inadequate information upon which to enter orders, the impact on your children can be negative. Even so, once custody orders are entered, they can be extremely difficult, and in some cases impossible, to modify.
This is true regardless of whether those orders were the result of negotiated settlement or litigation.
You could end up in court (or back in court if the case was initially decided by a judge) attempting to re-litigate issues you thought were settled. Worse yet, you might be unable to convince the court to change custody and visitation orders that harm your children.
Therefore, it is essential to focus from the outset on obtaining custody orders that best serve their needs.
Attorneys are expensive but children are priceless.
Even if you and your spouse are in agreement about custody and visitation, I recommend you consult with a competent domestic relations attorney before making any important decisions.
Temporary Custody
"De facto" (means "in fact") custody refers to who actually has custody of the child at this time. This can be different from "court ordered custody". In order to formalize custody before you begin litigation, you will need to file for temporary custody.Temporary custody will be based on the "best interests" of the child standard. It is not an "initial" award of custody. Instead it is temporary custody while you are waiting for the court to hold a hearing.
Sole Custody
- Custody is made up of: legal custody and physical custody. A person with legal custody has the right to make long range plans and decisions for the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning the child's welfare. A person with physical custody has the child living primarily with them and they have the right to make decisions as to the child's everyday needs. Sole Custody is when both legal and physical custody are given to one parent. The child has only one primary residence.
Split Custody
- Split custody is easiest to describe in a situation where there are two children and each parent obtains full physical custody over one child. Some of the considerations that may bring about this result are age of the children and child preference.
Joint Custody
- Joint Custody is actually broken down into three categories: Joint Legal, Shared Physical, and Combination.
Joint Legal custody is where the parents share care and control of the upbringing of the child, but the child has only one primary residence.
In Shared Physical Custody the child has two residences, spending at least 35% of their time with the other parent.
Additionally, you can make your own special joint custody agreement that is any combination of Shared Physical and Joint Legal Custody. One example of this is when there is one residence for the child and the parents live with the child there on a rotating basis.
The court looks very closely at Joint Custody agreements. The most important factor to Joint Legal Custody to Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child's welfare. If you are constantly fighting over what religion or what school, the court may strike down your agreement.
Other factors include:
willingness to share custody; fitness;
child's relationships with parents;
child's preference;
ability to stabilize child's school and social life;
closeness to parent's homes (primarily a factor during the school year) ;
employment considerations (e.g. long hours, extensive travel, etc.);
age and number of children;
financial status;
benefit to parent.
Additionally, the sincerity of the parties involved is important. The court will want to make sure that joint custody isn't being traded for concessions on other points. Another consideration is whether the grant of joint custody will affect any assistance programs.
Currently, Welfare and Medical Assistance are affected based on the award of Joint Legal Custody. Be sure to check with your contact at any social service agencies before entering into an agreement or you may be jeopardizing your benefits. This list is not meant to be complete and the court will hear anything that they believe to be relevant.
Best interests of the child
Suitability of each parent as custodian Psychological, emotional, and developmental needs of the child Ability of the parents to communicate Prior and continuing care that the parents have given the child Wishes of the child Safety of the child
Custodial agreements of the parents
History of domestic abuse
We zealously represent the best interests of mothers, fathers, grandparents and other interested parties in custody controversies without putting children in the middle of the dispute. We are committed to providing the most effective level of service to each of our valued clients in a caring and compassionate manner. We handle child custody issues including:
What are some common terms?
Legal Custody - the parent with legal custody can make all decisions regarding the welfare, health, and education of the child.
Physical Custody - determines which parent has the actual, physical right to be with the child.
Sole Legal Custody - authority to make all decisions regarding the health, education and welfare of the child
Sole Physical Custody - placement of the child with one parent only, so that the other parent is excluded from having physical custody of the child. Sole custody is typically awarded when the other parent has abused or neglected the child.
Joint Legal Custody - shared authority over decisions regarding the health, education and welfare of the child.
Joint Physical Custody - both parents have the ability to be with the child, typically joint physical custody is coupled with a parenting plan to determine who will be with the child at what particular time.
Shared Custody - both parents equally share the legal and physical custody of the child. Typically found only where both parents are able to resolve their personal differences and keep them in check for the sake of raising the child in a caring, nurturing environment.
What is the difference between custodial parent and non-custodial parent?
The custodial parent is the term that is used for the parent that has primary physical custody of a child. Typically the child resides with the custodial parent.
The term non-custodial parent is used for the parent that has the child for a lesser amount of time. Typically the child does not reside with the non-custodial parent except during the time that the non-custodial parent exercises his/her visitation right with the child.
Typically, the child is either with the custodial parent or the non-custodial parent but not both. This arrangement comes as a result of the separation of the parents and both parents maintaining separate residences. The child resides with the custodial parent most of the time and the non-custodial parent spends time with the child during periods of child visitation. This way, both parents get to spend time with the child despite having separate residences.
What is child visitation and a ‘parenting plan’?
Custody and visitation are considered at the same time since the factors and circumstances taken into consideration by the court in making these determinations are essentially the same.
The term "child visitation" refers to the time when the non-custodial parent has the right to be with the child. The custodial parent's right to be with the child is often subject to the non-custodial parent's right to visit with the child.
The term "parenting plan" refers to the agreement between the parents or the court order which defines provisions for custody and visitation. It determines whether one or both parents has the ability to make decisions regarding the health, education and welfare of the child. The parenting plan also defines when the child is to be with the non-custodial parent.
What are some common arrangements for child visitation?
Child visitation, often pursuant to a parenting plan, can take a variety of forms or schedules. Some common arrangements include some of the following provisions:
(1) Alternate weekend visitation with the non-custodial parent, including "three-day holidays"
(2) Mid-week visitation with the non-custodial parent
(3) Sharing of the child during periods of school recess -winter, spring and summer
(4) New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years (click here for a useful article on holiday visitations)
(5) Mother's Day with Mother, Father's Day with Father
(6) Alternate years on the child's birthday
(7) Open telephone contact by the parent who does not have actual physical custody of the child
(9) Exchange of a few days of visitation here and there as mutually agreed without the need for a change or modification of the court order
What factors go into determining custody and visitation?
The primary consideration is, "What is in the best interest of the child?" The focus is from the viewpoint of the child as opposed to the wants and desires of one parent or the other.
Some states have established a general rule that it is in the best interest of a child to have continuing and frequent contact with both parents and the parent who is most supportive of this concept becomes the custodial parent. If one parent attempts to undermine the relationship between the child and the other parent, this factor could be considered in providing custody or additional visitation to the other parent. In California, the impact of a proposed move on a noncustodial parent’s relationship with his children may be considered a relevant factor in determining what is in the best interests of the child.
The best interest of a child is determined on a case-by-case basis upon consideration of all relevant facts concerning the circumstances of both parents.
Do the wishes of a child have any influence in custody decisions?
Some states (NOT ALL) allow children of sufficient maturity to have an impact upon the determination of custody and visitation by considering their desire to reside with one parent or the other. Judges will listen closely to the child's stated preference and his or her reasons. The child does not have the final say and it will be the judge's decision just how much consideration is to be given to the child's wishes, depending on age, maturity, and the quality of the reasons. The overriding question will always be: what is in the child's best interest?
What if the child's best interest does not coincide with the parents' personal desires?
It may be in the best interest of the child to remain in the home with people he has lived his entire life rather than be uprooted after the loss of his mother and transferred to someone he does not know.
If the natural father challenges the issue and desires custody the court will have a difficult decision to make. If he agrees to the change of custody, the court should most likely grant it. The situation is similar to a step-parent adoption where the state tends to be more lenient in the examination it makes before it grants the change of custody. In this case the natural parent in the household will have passed away; however the child has been living in the home with the stepparent and, if thriving, the court may grant it.
What if both parents agree on child custody and visitation?
This is the ideal situation. Absent extenuating circumstances (such as abuse or neglect), the parenting plan agreed upon by both parents becomes the parenting plan. If the issue of child custody and visitation is not raised in a court action, the agreements worked out between the parents is left undisturbed. The agreement does not have to be reduced to a writing signed by both parents but a written, signed parenting plan is preferable for future reference. In addition, a written, signed parenting plan can typically be entered as a Stipulation between the parties and then issued as a court order for future enforcement purposes.
What if the parents disagree on child custody and visitation?
Most states require both parents who are unable to reach an agreement on the issues of custody and visitation to participate in a mediation session to work out such a plan. In the mediation session, both parents meet with a third-party, typically an experienced attorney or social worker, to discuss relevant factors in an effort to reach an agreement. Many contested issues of custody and visitation can be resolved in a mediation session and this session typically results in an agreement which then can be presented as a Stipulation for issuance as a court order.
Should mediation of custody and visitation disputes fail, the parents can then pursue litigation of unresolved issues. A court hearing will be conducted and evidence presented. Often expert witnesses, such as psychologists and licensed social workers, will be called to present evidence for consideration by the court. After the court has received such evidence, it is then in a position to make an order regarding custody and visitation.
Custody and visitation disputes can be very difficult and expensive to resolve. An agreement by both parents is the preferred course of action since a joint parental decision is more likely to be followed than if an outsider makes a decision for them.
Can expert witnesses be used in custody battles?
Because of their lack of familiarity and formal training in the field, often times judges will put much stock in the testimony and written recommendations of experts in custody disputes. Experts in the field of child psychiatry or psychology or mental health will perform custody evaluations of the family with written conclusions and recommendations to the court based on their observations. The evaluations will cover the activities of each parent, the home life, parenting skills, relationships to the child, and the child’s feelings and preferences. One of two possible outcomes will occur: the recommendation of the professional will be accepted by all parties judges, lawyers, parents or everyone goes off to court to let the judge make the decision.
Does religion enter into the determination of child custody?
No -- theoretically. Whether one parent practices a religion or not is normally not a factor in deciding custody, unless there is evidence of potential or present harm to the child, such as if the parent engages in unusual "cult" activities or has an unorthodox lifestyle that might likely put the child in danger or be detrimental to the best interest of the child.
Does an extramarital affair have an impact on custody?
It could, depending on the facts of the case. Generally-speaking, a discrete affair will normally not be a consideration in determining custody. It will become a significant (possibly negative) factor if the relationship represents a threat, has harmful sexual overtones, or puts the child in embarrassing situations.
The right to have your child live with you
If you decide not to get a custody order, then you and the other parent may legally have equal rights to both of these things. The only method to change the equal right to make decisions about your child and to have your child live with you is by filing for custody of your child.
If there is a live-in situation, the judge will evaluate, among other relevant circumstances, the relationship between the child and the other live-in partner and any evidence of present or potential harm from the situation in determining whether this should be a factor to consider.
Visitation exchanges become problematic when the personal differences between the parents are not settled. In the extreme, a domestic violence case makes the visitation exchanged difficult to handle, especially when restraining orders are in effect (such as an order that both parents are to stay at least 100 yards away from one another and may not go to the residence of the other).
In these difficult cases, visitation exchanges can be conducted in a public place - a restaurant where one parent can sit in the back and then send the child to the front, in a local police station, hospital or library - places where there are a lot of people around who would notice if an argument between the parents erupted. In extreme cases, one parent would leave the child with a visitation supervision monitor and the other parent would arrive fifteen minutes later, the visitation would proceed under the supervision of a third-party monitor, and then the visiting parent would leave 15 minutes before the other parent returns to pick-up the child. Creative visitation exchanges are sometimes necessary to allow visitation while keeping separation between the parents to reduce the possibility for violence between them.
at if the custodial parent wants to move away from the non-custodial parent?
Can nonbiological parents be awarded custody?
Courts in the past have usually awarded custody to someone other than the biological or natural parents in cases of abandonment or chronic abuse. This has begun to change in recent years. Judges are awarding custody to anyone with an interest in the child such as stepparents, godparents, aunts, uncles, surrogates who can introduce evidence as to why they will be the better custodians than the natural parent. Again, the court’s guiding principle may be the welfare of the child.
My ex does not deliver our teenage son at the scheduled times/days. How do I go about enforcing the schedule as worked out in the court degree?
One approach is to have an attorney send a "lawyer's letter" on your behalf to the father explaining that father doesn't get to decide when you see the boy; the court does. This provides a little muscle to show you are serious and that you've gotten a lawyer involved. If the ex is reasonable, he/she may think twice. If dad doesn't show up, the attorney can file a motion for contempt, asking for attorney fees and costs as a sanction.
Also, each time dad doesn't deliver the boy, call the police and ask them to accompany you to the house to get the boy.
What qualifies as a ‘material change of circumstances’?
What is sole custody?
When one parent is given both physical and legal custody, they have sole custody of the child. When a parent has sole custody, the child lives with that parent on a day by day basis, and has the right to make both short-term and long-range plans about the child’s welfare.
What is joint custody?
Joint custody is actually broken down into 3 categories:
Joint Legal Custody- The parents share care and control of the child's upbringing, but the child has only one primary residence.
Shared Physical Custody- The child has two homes, but spends at least 35% of their time with the each parent.
Your Own Custody agreement that is a combination of the Joint Legal Custody and Shared Physical Custody. Example: The child has one home and the parents live there on a rotating basis.(3)
Is there any difference between custody and visitation?
Yes. Custody awards one parent or both parents the right to provide care and supervision for the child, and the right to make long-term decisions for the child. Visitation is sometimes awarded to the parent who does not have physical custody of the child. Visitation usually involves timed visits with the child that are either supervised or unsupervised. Visitation does not award decision-making responsibility or long-term care of the child.
What are some of the advantages and disadvantages of getting a custody order?
Some people decide not to get a custody order because they don't want to get the courts involved. They may have an informal agreement that works well for them or may think going to court will provoke the other parent.Getting a custody order can give you:
The right to make decisions about your child
Who can get custody?
In Maryland, the courts do not automatically favor the mother or the father. It looks at the relationship of each parent with the child. And while grandparents, step-parents and other family members may be awarded custody, the courts favor granting custody rights to the parents.
Can a parent who committed violence or abuse get visitation?
Maybe. A parent who has committed abuse may be granted supervised visitation if the judge specifically finds that there is no likelihood of further child abuse or neglect by the abusive parent; otherwise the court should deny custody or visitation to the abusive parent.If you have evidence of abuse to you and/or your child you (or your lawyer) must show this to the judge at the custody hearing. The judge will look at these types of abuse:
One parent abusing the other.
A parent abusing his/her spouse. Either parent abusing ANY child, not just the child the custody case is about.(4)
I'm the child's grandparent. Can I get visitation?
Maybe. Grandparents have the right to ask the court for visitation, and the judge may give it to you if s/he finds it to be in the best interest of the child.(5)
How will the judge make a decision about custody?
When deciding who will have custody, a judge will try to make an arrangement that s/he thinks is in the best interest of your child. The court will base its decision on many factors. Some of the things a judge will consider are:
Primary Care Giver – Who takes care of the child? Who feeds, clothes, and bathes the child? Fitness – What are the physical and mental abilities of the parent seeking custody? The court will consider evidence of abuse by the other parent to you, the child or any child. Reputation Previous Custody Order Ability to Maintain Family Closeness with family members of the other parent Child Preference- The court may consider hearing the child’s preference and it may be out of the presence of the parents. Though its rare for the court to hear from children under 7 years old, but if the child demonstrates maturity the court may be willing. However, children 10 or 12 years or older, are most certainly to be heard and their opinions are given weight in determining custody. Financial Opportunity Age, Health, Gender of Child Residence of Parent and Opportunity for Visitation- How far does one parent live form the other? Which parent lives closer to the child’s school and social circle? Length of Separation- How long has the parent been separated form the child? Any Prior Abandonment or Surrender of Custody- Is there history of one parent walking out and leaving the other parent alone to cope with the child and home? Religious Views- If you can prove that religious views play an important role in the physical or emotional well-being of the child, the judge may take them into consideration. (6)
Where can I file for child custody? (Which state has jurisdiction?)
Custody jurisdiction is state law. However, most states (if not all) have adopted either the Uniform Child Custody Jurisdiction Act (UCCJA), or the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Maryland has adopted the UCCJEA, which we explain here.
Under the UCCJEA, you can only file for custody in the "home state" of the child. (There are exceptions to the "home state" rule -- see below.)
The "home state" is the state where the child has lived with a parent or a person acting as a parent for at least six consecutive months. In the case of a child less than six months old, the "home state" is the state where the child has lived from birth. (Temporary absence from the state does not change anything.)
If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, the other parent can start a custody action in the state that your children most recently lived in for at least six months. There are some exceptions to this – please see the next section.
Any violation of the notice requirement may be harmful to you in determining future custody and visitation rights.
However, the court will consider the following excuses:
Relocation was necessary due to financial or emergency circumstances Required notice was given in a reasonable time before the need to relocate (15)
Can a relative (brother, sister, cousin) of the noncustodial parent (parent who does not have custody), travel with the child?
If the child is 16 or younger, no. A relative who knows that the other parent has legal custody, may not do any of the following, unless at the time there is a clear and present danger to the health, safety, or welfare of the child:>{?Abduct, take or carry the child away from the parent with custody. Keep the child for more than 48 hours after the parent with custody demands that the child be returned. Hide the child knowing that possession of the child was obtained by another relative without proper permission Help another relative commit any of these violations.
Can a parent who does not have custody have access to the child's records?
Yes. Access to the child's medical, dental and educational records may not be denied to a parent because the parent doesn't have custody. If you want to deny access you can ask the judge to make that a condition in the custody order.
What can the court do if the other parent denies or interferes with my visitation or custody rights?
The court can take any or all of the following actions against the other parent:
Order that the visitation be rescheduled Change the conditions of the visitation or custody order to make sure that the other parent obeys the order. Charge a fine or counsel fees against the parent who denied or interfered with the visitation rights.
If I think that the other parent may abduct my child, is there anything I can do?
If the other parent takes the child out of state or somewhere else in the state in violation of your rights to custody or visitation under a court order, you can file a petition for contempt of court and demand the return of the child. If the other parent has purposefully abducted your child, that parent is guilty of a crime.
A person may not forcibly abduct, take, or carry away a child under the age of 12 years from the custody and control of the child's parent or legal guardian.
Can I be given temporary custody as a part of a protective order against the other parent? Yes, you can be given temporary custody if you had the child with your abuser. This award may help you later if you decide to file for regular custody. For more information on protective orders and how to get one, go to our How to Get a Restraining Order page under your state.You should note that a restraining order will not cover custody of any children that are not your abuser's children.Can I get temporary emergency custody?
A judge may grant temporary emergency custody in extreme situations. You will need to prove to the judge that your child is in immediate danger of abuse and that it is necessary to protect you and your child. A judge will only grant you temporary emergency custody if s/he thinks it is in the best interest of the child.
Types of Child Custody
Physical Custody
Physical custody means that a parent has the right to have a child reside with him or her. Many states will award joint physical custody to both parents when the child spends significant amounts of time with both parents. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.
Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent.
Legal Custody
Legal custody of a child means having the right and the obligation to make decisions about a child's upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents.
If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement. You won't get fined or go to jail, but it will probably be embarrassing and cause more friction between the two of you -- which may harm the children. What's more, if you're represented by an attorney, it's sure to be expensive.
If you think you have circumstances that make it impossible to share joint legal custody (the other parent won't communicate with you about important matters or is abusive), you can go to court and ask for sole legal custody. But, in many states, joint legal custody is preferable, so you will have to convince a family court judge that it is not in the best interests of your child.
Sole Custody
One parent can have either sole legal custody or sole physical custody of a child. Courts generally won't hesitate to award sole physical custody to one parent if the other parent is deemed unfit -- for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect.
However, in most states, courts are moving away from awarding sole custody to one parent and toward enlarging the role a divorced father plays in his children's lives. Even where courts do award sole physical custody, the parties often still share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In that situation, the parents would make joint decisions about the child's upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights.
It's understandable that there may be animosity between you and your ex-spouse. But it's best not to seek sole custody unless the other parent causes direct harm to the children. Even then, courts may simply allow supervised visitation, while still ordering joint legal custody.
Joint Custody
Parents who don't live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:
alternating months, years, or six-month periods, or
spending weekends and holidays with one parent, while spending weekdays with the other.
There is even a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their out time in separate housing of their own. This is called "bird's nest custody."
Pros and Cons of Joint Custody
Joint custody has the advantages of assuring the children continuing contact and involvement with both parents. And it alleviates some of the burdens of parenting for each parent.
There are, of course, disadvantages:
Children must be shuttled around.
Parental noncooperation or ill will can have seriously negative effects on children.
Maintaining two homes for the children can be expensive.
If you do have a joint custody arrangement, maintain detailed and organized financial records of your expenses. Keep receipts for groceries, school and after-school activities, clothing, and medical care. At some point your ex may claim she or he has spent more money on the kids than you have, and a judge will appreciate your detailed records.
