John S. Weaver, Weaver Law LLC
Rockville, Maryland Family Law Attorney
Serving Montgomery County, Frederick County, and Howard County
Law Office of John S. Weaver will guide you through the child custody process explaining the different aspects of custody, and prepare you to present yourself in the best light concerning the important factors the Court considers in making its decision. We also prepare you for court ordered custody mediation, court ordered custody and visitation evaluations, and assist you in developing an appropriate parenting plan that addresses your parental concerns, including issues that may necessitate visitation restrictions. With years of experience handling and presiding over these matters, Mr. Weaver will discuss how best to meet your objectives consistent with your children's best interests, and will prepare and present your witnesses to the Court. After you have reviewed this page, if you would like a more detailed technical discussion of child custody issues, please see Child Custody, a chapter Mr. Weaver wrote in 1994 for the Maryland Pro Bono Family Law Training Manual. This chapter is regularly updated by Mr. Weaver for use in the Montgomery County, Maryland, Bar Foundation's Rita Rosenkrantz Basic Family Law Training materials.
Frequently Asked Questions About Child Custody
What is the difference between legal custody and physical custody, and what is joint custody? Legal custody involves the right and obligation to make long range decisions about education, religious training, discipline, medical care, and other matters of major significance concerning the child's life and welfare. The parent not granted legal custody ordinarily retains authority to make day-to-day decisions regarding the child's welfare while the child is in that parent's physical care, whether pursuant to an award of visitation or an allocation of physical custody. This authority would include the right to consent to emergency medical care where there is insufficient time to contact the parent having legal custody, and matters of discipline.
"Joint" legal custody means that both parents have an equal voice in making those decisions, and neither parent's rights are superior to the other parent's rights. However, sometimes the Court provides for a "tie-breaker" authority in anticipation of post-divorce parental disputes. The inclusion of a "tie-breaker" is an example of one of the "multiple forms" of joint custody inherent in the powers of an equity court when dealing with the issue of custody.
Physical custody involves the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody. "Joint" physical custody is in reality "shared" or "divided" custody, whereby the physical custody of a child is allocated between the parties. There is no difference between the rights and obligations of a parent having temporary custody of a child pursuant to either a visitation award or an order of shared physical custody. The term "split custody" is generally used to describe the situation in which one parent is awarded physical custody of some or the parties' children, with physical custody of the remaining children going to the other parent, and cross rights of visitation.
Do both parents have access to school records?
Unless otherwise ordered by a court, access to medical, dental, and educational records concerning the child may not be denied to a parent because the parent does not have physical custody of the child.
What does the Court consider in deciding a child custody case?
The paramount consideration in any child custody case is the "best interest" of the child. The factors the court considers include, without limitation, the following:
1. Fitness of the parents, namely, the psychological and physical capabilities of both parents, including any conduct and characteristic of a parent which may reflect on the parent's ability to care for a child and which may have an adverse impact on the welfare of a child. Although the fact of adultery or sexual relationships with others may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous (or homosexual) parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the child's welfare.
2. Character and reputation of the parties.
3. Desire of the natural parents and agreements between the parties. The court may modify any provision of an agreement between parents with respect to the care, custody, education or support of any minor child of the spouses, if the modification would be in the best interests of the child.
4. Potentiality of maintaining natural family relations.
5. Preference of a child where the child is of sufficient age and intelligence to form a rational judgment, but such child's wish is certainly not controlling.
6. Material opportunities affecting the future life of the child. This does not mean that a parent who is poor or otherwise not able to provide many of the comforts of life is thus not to be granted custody. This factor is not so significant absent related facts showing parental unfitness, such as a child not being properly taken care of by its parents within their means or where the financial situation (e.g., parent unable to hold down a job) has made the custodial situation completely unstable.
7. Age, health and sex of the child. The "maternal preference" doctrine whereby a child of tender years was presumptively better off with the child's mother was abolished in Maryland.
8. Residences of parents and opportunity for visitation.
9. Length of separation from the natural parents.
10. Prior voluntary abandonment or surrender.
The following additional factors are particularly relevant to determining the appropriateness of a joint custody award:
11. Capacity of the parents to communicate and to reach shared decisions affecting the child's welfare. This is clearly the most important factor in determining whether an award of joint legal custody is appropriate and is relevant also to a consideration of shared physical custody. If the parent's track record is one of inability to effectively communicate on matters involving the child and there is no strong potential for effective communication in the future, joint custody is not warranted. If the evidence demonstrates the parents do not share parenting values and each insists on adhering to irreconcilable theories of child rearing, joint legal custody is not appropriate.
12. Willingness of parents to share custody. However, this does not give a parent veto power over the possibility of joint custody. A caring parent who believes that sole custody is in the best interest of the child may aggressively advance that position throughout litigation, but still be willing and able to fully participate in a joint custody arrangement if that is the decision of the court.
13. Fitness of parents, i.e., psychological and physical capabilities of both parents.
14. Relationship established between the child and each parent.
15. Preference of the child. The reasonable preference of a child of suitable age and discretion should be considered.
16. Potential disruption of child's social and school life.
17. Geographic proximity of parental homes.
18. Demands of parental employment.
19. Age and number of children.
20. Sincerity of parent's request. (Has one parent requested joint custody merely to gain bargaining leverage over the other in extracting favorable financial or property concessions?)
21. Financial status of the parents. The court must consider the financial burden of maintaining two homes for a child.
22. Impact on state or federal assistance.
23. Benefit to parents, to the extent that any such benefit to the parents is likely to redound to the ultimate benefit of the child.
24. Other factors. A trial judge should consider all other circumstances that reasonably relate to the issue of joint custody.
25. Another factor that has appeared in Maryland custody cases is a parent's religion and the child's religious upbringing to the extent it impacts the child's physical or emotional welfare. It has to be clearly shown that a parent's religious practices have been or are likely to be harmful to the child before the court will interfere with those religious practices.
26. Evidence of abuse by a party against: the other parent of the party's child; the party's spouse; or any child residing within the party's household (including a child other than the child who is the subject of the custody or visitation proceeding) may be considered as a factor bearing on the welfare and best interests of the child.
Will my child be required to testify?
Most child custody cases are decided without any testimony by a minor child, and a child rarely testifies in open court. The court seeks to balance the right of the parents to present evidence as to what they deem to be in the child's best interest as against possible psychological impact to the child. The trial court has the discretion to interview a child outside of the child's parents' presence, with or without the consent of the parents, and with or without the presence of counsel. However, the interview must be recorded by a court reporter unless the parties affirmatively waive the court reporter's presence on the record. Immediately following the interview, the court reporter shall read the record of the interview to counsel and the parties. This reporting of the content of the testimony should be outside the child's presence.
Will the Court Appoint an Attorney for my Child?
The Court may appoint an attorney as a "child advocate" to represent the minor child or appoint an attorney who shall serve as a "best interest" attorney to represent the minor child, and impose the costs of such appointed counsel against either or both parents. The attorney appointed to represent the minor child may not represent any party to the action. A lawyer appointed for a minor child is required to exercise ordinary care and diligence in the representation of a minor child. See the Maryland Standards of Practice for Court-Appointed Lawyers Representing Children in Custody Cases.
A Best Interest Attorney is required to make an independent assessment of the child's best interest, and to advocate for that determination even if it is not what the child desires. A "Child's Privilege Attorney," decides whether to waive the child's patient-psychiatrist/psychologist privilege, or any other statutory privilege, for the child. A "Child Advocate" Attorney is court-appointed to provide independent legal counsel for a child with the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client.
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