Is mother’s preference still a factor in child custody disputes?

Recently a client seeking a consultation on divorce and child custody asked me if a father has a real shot at getting custody over the mother. My response was, “of course fathers have a shot at getting custody of their child.” This person did not seem so convinced and said, “Well what about mothers being considered the better choice, isn’t that how Maryland does custody?”

Child custody in Maryland is very complex, and the details are always different for each case when child custody is at issue. But the mother’s preference is not something the Maryland Courts consider to be a factor in determining child custody, at least not anymore.

The mother’s preference originally to a child of “tender years.” It was felt a young child is better suited to remain in the custody of the mother. This preference for giving child custody to mom was supposedly applied only when all else was considered equal between the parties. The Court believed that the relationship between mother and child was so important that there became a preference to allowing the mother to keep custody of the young child(ren). The Court often called it a “primordial tie” or a “visceral bond.”

This then gave a preference to the mother in child custody disputes. But this preference was only one factor among many when deciding custody. If the Court found that the father was a better choice, the mother’s preference would not automatically change the Court’s mind about the father getting custody of his children. The best interests of the child was and is the largest concern by which all else is measured.

This preference became more of an issue in the 1970′s when some Courts started to rely on the Mother’s Preference as an easy answer to custody disputes. The General Assembly of Maryland, in 1974, amended the laws to ensure that the Mother’s Preference was no longer to be considered when determining child custody, in affect abolishing by statute the Mother’s Preference in custody cases as of July 1, 1974. The legislation including the amendment was entitled “An Act concerning Custody of Children–No Preference to Either Spouse.” When the Court has in front of it two fit and proper parents they can no longer take into account the sex of the parent as a tie- breaker when all other factors make them both equal and worthy of custody.

Today the Courts of Maryland considers both parents as having a joint responsibility to their child until the age of 18. This means both parents together and individually have the obligation to care for the welfare of their children. If the parents are not living together child custody cannot be given to either parent based solely on the parent’s gender.

So, as I told the person who originally asked, yes, the Courts of Maryland used to consider the mother as a more likely option for custody of a young child. But now the Court does not consider whether that person is mommy or daddy – just whether they are the best custodian in the best interest of the child.

Elza v. Elza, 300 Md. 51, 475 A.2d 1180 (Md., 1984), McAndrew v. McAndrew, 39 Md.App. 1, 382 A.2d 1081 (1978), Cooke v. Cooke, 319 A.2d 841, 21 Md.App. 376 (Md. App., 1974),Kirstukas v. Kirstukas, 286 A.2d 535, 14 Md.App. 190 (Md. App., 1972), Oberlander v. Oberlander, 256 Md. 672, 261 A.2d 727 (1970)

Protective Orders & Peace Orders – overused or not used enough?

If you are going through a divorce or other family law matter, you may find yourself in need of a Protective Order or Peace Order. Heaven forbid you ever find yourself in a situation where you need to call the police to protect yourself from your spouse, or someone living in your home, or someone you have a relationship with, or someone who is related to you. If that does happen and the police are called they will often recommend filing for a protective order. It can be a scary experience all around especially if you feel like you are in danger. A protective order is not something to consider lightly. If there will be divorce or family law matters going to court, this will figure into the proceedings.

There are some who manipulate the protective order process. Some will use the family law system to get back at someone or use the process to hurt someone. Some are looking for advantage in their divorce or child custody dispute. Sometimes, what is in a temporary protective order is not completely true and would not result in any criminal charges.

Then there are those who desperately need the Court’s protection in a dire family law situation – those who cannot or are unable to protect themselves. There are women and men out there who are suffering and who are in danger and do not know where to turn. The protective order process is made for these people, and they should not hesitate to use it. Use the protective order process wisely or you could end up taking the Court’s time and attention away from someone who really needs protection.

It is very easy to get the court to give you a week long or temporary protective order. Often the other party is not present and has no notice that a protective order has been filed until they are served with the papers. The Court is going to use as much caution as they can when someone asks for help in this type of situation. No judge wants to read in the newspaper the next day that a protective order they denied resulted in someone getting hurt.

Protective orders are not criminal filings, there are no jail time charges, and there are no criminal penalties from a protective order only. If the police take someone into custody or the State’s Attorney’s Office gets involved then that is a different story. However, if the protective order is broken or violated there are criminal charges that can result, since it is still a Court Order.

Once the temporary protective order has expired there is a hearing for a final protective order. Both parties should be present and Court decides whether or not to grant a protective order that lasts from more than a week to a year. Filing a protective order can have long lasting affects. The person who has filed for the protective order must prove their case, the burden is on them. The Court and the judge then has the job of deciding who to believe, who to protect, and who is lying.

Terminating Child Support – not something you do lying down

It’s finally happened! Your beloved son or daughter has reached the ripe old age of 18, they have graduated from high school, or they have reached the age of 19 and have emancipated (grown old enough).

If you are the one paying child support this means your legal obligation to pay child support is over. No matter your child custody situation, no matter whether you are going through a divorce, the State of Maryland no longer requires you to pay child support.

Now, there may be an agreement between you and the other parent to continue to pay. There may be specific reasons why you would still have to pay child support. But if not and you still have that wage lien coming out of your check every pay period, you are probably not so happy.

Even if you do not have a wage lien and you are paying the other parent directly, I can only imagine that the other parent is not so willing to stop those payments. The child support enforcement agency is not able to give legal advice and is not about to step in where the Court system should.

Get Help: Notify the Court of Emancipation

So what do you do? It is hard to believe, but the judicial system is not going to remember that your son or daughter has had a birthday. They are not going to know that you have a problem unless you, that’s right YOU, do something. So do something.

By something, I of course mean that you have to let the Court know that your paycheck should no longer be taken and that you no longer need to pay child support. They need to know that those payments should stop and that if you have been making payments when your child support obligation is over then there is a problem. You cannot however, “jump the gun”, you have to wait until your child has emancipated before you do anything. So, the day after their birthday or the day after high school graduation is the time.

Will I Be Reimbursed for Overpayment?

I often get questions about the overpayment, and whether that money can be reimbursed. Sadly, a majority of the time the Court defines that as a contribution to your child and is not inclined to give it back to you. However, if the money is still within the child support agency’s system and has yet to be deposited to the other parent’s account there is a slim, but possible chance.

Speak Up

The Court in every county is dealing with cases on all types of issues. If you do not tell them that you have a problem nothing is going to change.

But speaking to the Court takes a specific language that often can be difficult to understand without someone there to help. If you have questions or just want some information your best bet is to have a consultation and save yourself from paying more child support than you can afford.

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