In Maryland, there are two forms of child custody: physical and legal.
Legal custody is the decision-making authority to make long-range decisions that significantly affect a child’s life, such as education, religion, and health care. Shared legal custody (also referred to as “joint” legal custody) means that the parents share decision-making authority regarding the minor child. If the court awards sole legal custody to a parent, then that parent has unilateral decision-making authority regarding the child. Even if a parent has sole legal custody, the other parent still has access to the child’s educational and health records, unless the court orders otherwise.
Physical custody (also referred to as “residential” custody) refers to the child’s living arrangement. A parent with physical custody has the authority to make day-to-day decisions necessary when the child is with that parent. Shared physical custody does not require a 50/50 split of time. Generally, if parents have shared physical custody, it means that either parent was awarded 35% or more of the overnights.
In Maryland, there is no rebuttable presumption in favor of shared custody–whether physical or legal. Furthermore, neither parent is presumed to have a greater right to custody over the other, and there is no preference for one gender over the other. Instead, the court must determine the “best interest of the child” on a case-by-case basis. In order to determine whether shared physical and/or legal custody is in the child’s best interest, the court looks to the factors in the Taylor v. Taylor case: (1) the capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; (2) the willingness of parents to share custody; (3) the fitness of parents; (4) the relationship established between the child and each parent; (5) the preference of the child; (6) the potential disruption of child’s social and school life; (7) the geographic proximity of parental homes; (8) the demands of parental employment; (9) the age and number of children; (10) the sincerity of each parent’s request; (11) the financial status of the parents; and (12) any impact on state or federal assistance.
In devising a shared custody (or “access”) schedule, courts often try to balance a child’s need for frequency with each parent with a child’s need to reduce transitions between homes. The geographical distance between each parent’s home and/or the children’s school, the children’s schedule, and any special needs of the children are important considerations in crafting a schedule.
A significant factor in determining whether to make an award of shared or “joint” legal custody has been the first factor: “the capacity of the parents to communicate and to reach shared decisions affecting a child’s welfare.” However, even when parents are unable to communicate effectively on major decisions regarding a minor child, the court may award joint legal custody and designate one parent as the tie-breaker in the event the parents are unable to reach agreement about an important issue. The court may award one parent tie-breaker authority limited to certain areas of decision-making, such as medical or education.
It’s important to remember that tie breaker authority is not intended to be de facto sole legal custody; if the court awards one parent tie-breaker authority, then the parents must share information and make a good-faith attempt to reach a joint decision before the tie-breaker parent can exercise tie-breaking authority.
While the court looks to some of the same factors for both physical and legal custody, the court might determine that it is in a child’s best interest to have a shared schedule but for one parent to have time breaker, or that the parents should have shared legal custody with the child living primarily with one parent.
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ABOUT LISA BECKER
Lisa Seltzer Becker began practicing law in 1996. Since then, she has helped many clients in Maryland and the District of Columbia with their family law issues, including high-conflict divorces, custody cases involving special needs children, domestic violence, and premarital and postmarital agreements. Lisa is an experienced litigator, but is also a trained Collaborative practitioner and trained mediator.
For the last twelve years Lisa has also represented numerous students and families in education matters, including school discipline and bullying in public and private schools, and campus sexual assault/Title IX cases and academic misconduct cases in colleges.
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