Custody and Visitation

NOTICE: None of these questions and answers constitute legal advice.
To obtain legal advice, consult with an attorney. This is especially
important in divorce and family law matters, in which outcomes are often
peculiar to the particular facts and circumstances of the case.
    Q. Before there is a court order, who has custody?

    A. Both parents are the joint natural guardians of their child under 18 years of age
    and are jointly and severally charged with the child's support, care, nurture,
    welfare and education. They have equal powers and duties, and neither parent
    has any right superior to the right of the other concerning the child's custody.

    Q. What is legal custody?

    A. Embraced within the meaning of "custody" are the concepts of "legal" and
    "physical" custody. Legal custody carries with it the right and obligation to make
    long-range decisions involving education, religious training, discipline, medical
    care and other matters of major significance concerning a child's life and welfare.

    Q. What is "joint" legal custody?

    A. Joint legal custody means that both parents have an equal voice in making
    legal custody decisions, and neither parent's rights are superior to the other.

    Q. What is physical custody?

    A. Physical custody means 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.

    Q. What is joint or shared physical custody?

    A. Joint physical custody is in reality "shared" or "divided" custody. Shared physical
    custody may, but need not, be on a 50-50 basis, and in fact most commonly will
    involve custody by one parent during the school year and by the other during
    summer vacation months, or division between weekdays and weekends, or
    between days and nights. Note: This is NOT the definition of "shared custody"
    used in computing child support.

    Q. What standard does a court apply in making a custody decision?

    A. In any child custody case, the paramount concern is the best interest of the
    child. Formula solutions in child custody matters are impossible because of the
    unique character of each case, and the subjective nature of the evaluations and
    decisions that must be made. The best interest of the child is therefore not
    considered as one of many factors, but as the objective to which virtually all other
    factors speak.

    Q. What factors are considered in determining the best interests of the child?

    A. Remember, no list of factors can be complete, because of the unique character
    of each case. That said, here is a list culled from Maryland cases: (1) Fitness of
    parents. (2) Character and reputation of parties. (3) Desire of parents and
    agreements between parties. (4) Potentiality of maintaining natural family
    relations. (5) Preference of the child. (6) Material opportunities affecting the future
    life of the child. (7) Age, health and sex of the child. (8) Residences of the parents
    and opportunities for visitation; or geographic proximity of parental homes. (9)
    Length of child's separation from parent. (10) Prior voluntary abandonment or

    More factors, especially important when considering joint custody: (1) Capacity of
    parents to communicate and reach shared decisions affecting child's welfare. (2)
    Willingness of parents to share custody. (3) Relationship between child and each
    parent. (4) Potential disruption of child's social and school life. (5) Demands of
    parental employment. (6) Sincerity of parent's request. (7) Financial status of
    parents. (8) Benefit to parents.

    Q. How important is the ability of parents to communicate with one another?

    A. Clearly the most important factor in deciding joint legal custody is the capacity of
    the parents to communicate and to reach shared decisions affecting the child's
    welfare. Indeed, joint custody should not be awarded in the absence of a record of
    mature conduct on the part of the parents evidencing an ability to effectively
    communicate with each other concerning the best interest of the child, and then
    only when it is possible to make a finding of a strong potential for such conduct in
    the future.

    Q. To have joint custody must the parents agree about everything?

    A. No. The parents need not agree on every aspect of parenting, but their views
    should not be so widely divergent or so inflexibly maintained as to forecast the
    probability of continuing disagreement on important matters.

    Q. What standard does a court apply in making a visitation schedule?

    A. Visitation issues are judged by the same standard as other custody issues: the
    best interests of the child.  

    Q. Do mothers have an advantage in custody proceedings?

    A. An honest answer to this question must separate what Maryland courts and law
    aspire to from what really happens. In Maryland, the legal preference for awarding
    custody to mothers was abolished by the courts and by the state ERA many years
    ago. Still, mothers are awarded custody much more often than fathers. This could
    be because the maternal preference still survives in the hearts and minds of
    some judges, or it could be because primary caretakers are more often mothers
    than fathers.

    Q. Does sexual orientation of a parent matter?

    A. Sexual orientation may be considered in making a custody decision only insofar
    as the minor child is actually harmed by it.  This puts sexual orientation in the
    same category as lots of other behavior, including adultery and religious practices.
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