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United States District Court for the District of Maryland
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Bar Association of Montgomery County, Maryland

Child Custody and Visitation

Custody is about more than just where the child will live. In Maryland, when the Court hears a custody case, the judge will make a decision not only about physical custody, but also about legal custody.

Physical custody means when (and where) will the minor child spend time with each respective parent. This includes deciding who the child will live with, visitation schedules, holiday and summer break schedules, and pick-up/drop-off locations, etc.

Legal custody means which parent can make decisions about the minor child. This includes decisions like which school the child will attend, what pediatrician they will see, whether the child will play soccer or baseball, and what religion the child will practice.

In determining who will have physical and legal custody of the minor child, the judge will have to decide whether to award sole or joint custody. Sole and joint custody are not mutually exclusive terms. The judge does not have to order sole for both physical and legal custody or joint for both – a combination of the two can be ordered. For example, the Court could award sole physical custody to the mother, but joint legal custody to both parents. Or the Court could award sole physical and sole legal custody to the father or joint physical and joint legal custody to both parents.

Sole means one parent – one parent is making the decisions in the case of legal custody. Or in the case of sole physical custody, the minor child resides with one parent and generally has visitation with the other parent. Whereas joint means that the parents share in the responsibility – the child resides with both parents in the case of joint physical custody. In the case of joint legal custody, the parents work together to make any and all decisions about the minor child.

In considering whether to order joint physical or joint legal custody, the judge must be convinced that the parents are able to work together and effectively communicate regarding their minor child. The Court will consider several factors in deciding whether to award joint custody including:

  1. The desire of both parents to participate in joint custody;
  2. The ability of the parents to communicate and agree with respect to important decisions regarding the child;
  3. The parents ability to cooperate;
  4. The geographical proximity of the parents;
  5. The fitness of the parents (meaning each parent’s physical and mental ability to care for the child);
  6. The relationship between the child and each parent;
  7. The preference of the child;
  8. Any potential disruption of the child’s social and school life;
  9. The demands of each parent’s employment;
  10. The age and number of children;
  11. The financial status of each parent;
  12. The impact on state and federal assistance; and
  13. The benefit to each parent.

When awarding joint legal custody, the Court may award one parent the “tie-breaking power.” The tie-breaking power gives one parent the final authority to make the decision in the event that an agreement cannot be reached between the parents even after they have discussed the decision in good faith.

In all custody cases, the judge’s primary focus is what is going to be in the best interest of the minor child. What is in the best interest of the child is determined on a case by case basis after considering the totality of the circumstances. Some of the factors considered by the judge when determining what is in a child’s best interest are:

  1. The fitness of the parents (meaning each parent’s physical and mental ability to care for the child);
  2. The character and reputation of the parents;
  3. The desire of the natural parents and any agreements between them;
  4. The potential for maintaining natural family relations;
  5. The preference of the child, when the child is of sufficient age and capacity to form a rational judgment;
  6. Material opportunities affecting the future life of the child;
  7. The age, health, and sex of the child;
  8. The residences of the parents and the opportunity for visitation;
  9. The length of the separation of the parents; and
  10. Whether there was a prior voluntary abandonment or surrender of
  11. custody of the child.

The child’s preference is important to the judge but not controlling. This means that the judge can take the child’s preference into consideration. But, the judge is not bound to ultimately do what the child is asking. There is no set age the child must be before the Judge will allow him or her to testify because each child is different. Rather, the Judge must be convinced that the child is old enough to form a rational opinion about who should have custody of him or her.

Whether you are seeking sole or joint physical and legal custody of your child, our Maryland child custody attorney will make sure you understand all the options available. We’ll provide the help and support you need to ensure the Court hears all the facts before making a custody determination.  

Maryland Divorce Lawyer Blog - Child Custody
Maryland Divorce Lawyer Blog - Visitation
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