Child Custody: What You Need to Know
Just like Divorce, child custody is a complicated legal matter that will have long term effects on the lives of you and your children. It is important to arm yourself with the information that will enable you to make smart decisions now. This article will present some of the most common questions about child custody and provide answers that make sense. A second article will do the same for divorce.
However, it must be said up front that knowing the answers to these questions is no substitute for having a knowledgeable attorney on your side. With questions of divorce & child custody, the real answers always depend on the specific facts and circumstances of your unique situation. This article can present general information, and it is important you know and understand it. But only an attorney can guide you through the process and assist you in making the right choices for your particular situation. At the very least, you should get a consultation with an attorney before making any decisions on your own.
How is Custody Decided?
If you and your spouse cannot agree on issues of custody and visitation, then the Court will order it based on the “best interests of the child.” It is important to note that your interests, or your convenience, are not important to the Court in this analysis. They will strictly look at the case in light of the Court’s best guess as to your child’s best interests. Courts do not like making decisions in custody disputes. It is very hard, and is always done with limited evidence.
As with all divorce issues, it is far better to agree with your spouse on custody issues. That way, you retain some control of the situation. Otherwise, some Judge who never met you will decide based on the limited evidence you present during a trial. That is an imperfect system, but is the best that can be done, if you cannot agree yourselves.
There are several factors to be considered by the Court in arriving at the answer to custody. Those factors include, but are not limited to: the fitness of the parents; the character and reputation of the parents; the desire of the parents; the potential for maintaining normal family relations; the preference of the child (if the child is old enough); material opportunities affecting the future of the child; the age, health, and gender of the child; the residence of the parents and opportunities for visitation; the length of separation of the parents; and whether there was a prior voluntary abandonment of the child. No one factor is more important than the other, and the decision of the Court will always be a best guess.
Because this is so difficult, different Judges may have developed certain rules they tend to follow. Your attorney can tell you what the Master or Judge will do in your situation, which can help you decide how to resolve custody before trial.
Doesn’t The Mother Always Get Custody?
No. Contrary to popular belief, there is no legal preference for the mother in deciding custody. There may be societal reasons that mothers usually get custody, but not legal reasons. Gender should theoretically play no role in deciding custody under the law.
Can Someone Other Than The Parent Get Custody?
Yes, but they would have an uphill battle. The best interests of the child will control who gets custody, and if the Court determines that is not the parent, then they can order it. However, the non-parent seeking custody has the burden of overcoming the legal presumption that a parent is the best choice for custody.
What is Joint Legal Custody And Should I Get It?
There are two types of custody – physical custody and legal custody. Physical custody describes who the child actually resides with. Legal custody refers to your rights as a parent to make major decisions concerning your child. Not many couples share physical custody of their child. There is usually one primary physical custodian and the other parent gets visitation.
However, many divorced couples share legal custody of their children. That means the non-custodial parent gets a say in major decisions such as education, health, and life opportunities. They should be consulted, and their opinion has weight and can be enforced by the Courts if necessary.
The number one thing that determines if a couple get joint legal custody is their ability to communicate with each other and maintain a reasonably civil relationship. This is a strong reason to be sure and maintain a civil relationship with your ex-spouse.
If the two parties simply cannot work things out among them, the Court will make one the sole legal custodian. In that situation, the non-custodial parent loses the right to have a legal impact in the child’s life. These days Courts prefer joint legal custody, and will expect you to work together for your children and their future.
Can Custody be Changed Later? How & Why?
Yes. Custody is always subject to change, although it is difficult. The Court will always maintain jurisdiction over children until they are 18, no matter what you and your spouse agree to. The Court has the power to make decisions for your child based on the child’s best interests, the same standard referred to earlier.
The burden of showing why custody should be changed will be on the non-custodial parent. They will have to show a change in circumstances affecting the child’s best interests. This change must be sufficient to overcome the legal presumption that the best interests of the child lie in preserving the status quo. If the child is doing well in the current custody arrangement, custody will not normally be changed. The law essentially says “if it ain’t broke, don’t fix it.”
What is an appropriate change in circumstances? The answer is, of course, it depends. Each case is unique and the law forces the Courts to look at each situation individually. There are no hard & fast rules. An attorney can help you here.
Does The Non-Custodial Spouse Always Get Visitation?
Technically no. In reality, yes. A Court does have the right to deny a parent visitation if it is in the best interests of the child. However, in reality, this almost never happens. The Court will almost always find that it is in the best interests of the child to see both parents. It will not matter if one parent thinks the other is bad, or inattentive, or curses or drinks in front of the children, etc. The only thing that will likely deny visitation is evidence of gross physical abuse of a child, and even that is far from certain. All cases are decided on a case by case basis. There is no hard and fast rule.
If you believe visitation with the non-custodial parent is dangerous, the Court may order supervised visitation. This is more likely than no visitation at all. Another person will have to be present, or visitation can occur in an agreed upon location like a therapist’s office. If you feel this is important, you should ask an attorney for advice.
How is a Visitation Schedule Determined?
The Court will strongly encourage you to work out a visitation schedule yourself. There is a legal preference for a defined visitation schedule, but the Court will look to you to define it. If you and your spouse cannot agree, the Court will Order one that may not be convenient or acceptable to you. There are no hard and fast rules, but common visitation schedules include every other weekend, perhaps one overnight during the week, dividing major holidays, and usually a longer period of time during summer vacation.
Can Someone Other Than a Parent Get Visitation?
Yes. Grandparents may get visitation. Non-adoptive steparents have also been granted that right. Requests for someone other than parents to get visitation are rare, but the Court can grant it. Again, the decision will be made as to what is in the best interests of the child. There is no hard and fast rule here. The Court will determine the child’s best interests after a hearing.
How is Child Support Calculated? How Much Will It Be?
In 1990, Maryland passed a law setting child support guidelines and making them mandatory. Those guidelines will control the amount of child support in the vast majority of cases that come before the Court. The guidelines calculate each parents income, and the percentage attributed to each, and arrive at a certain number in a table created by the legislature. That number is the amount the non-custodial parent must pay.
This is a gross oversimplification, however. Figuring out one’s income alone is a complicated task. A parent could be charged with “potential income” if they are not making as much as they could. Extraordinary medical expenses could raise the amount. Additional visitation time could affect the calculation. There are too many possible factors to list them all. Your attorney will be skilled at calculating child support and likely has a computer program to do just that.
The Court may deviate from the guidelines, but it is frowned upon. The Court must make specific findings of reasons for the deviation and put them on the record. The Court will usually make only minor deviations from the guidelines.
Child support can be changed (increased or decreased) upon a “change in circumstances.” This usually means a change in income levels for one or both parents. And it must be substantial. A normal sized raise at one’s job will not trigger a change in circumstances sufficient to change child support orders.
How a Lawyer Can Help?
You may have guessed from reading these answers that an attorney is vital if you are going through a divorce or deciding child custody. The real answers to these questions depend on the specific facts of the situation. It is impossible to tell you in some article how these general rules will affect you personally. One must know your particular situation. That is just the way it is with domestic relations laws. And there are always exceptions to these rules, and we cannot possibly cover every issue in this article.
You are going to be more emotional during this time, and it helps to have someone advising you of the best course of action for the long term. An attorney has seen these cases before, and his or her experience with other cases will help guide decisions in your case. An attorney will also know what the local Judge will do in your situation, and you can decide to go to trial or settle accordingly.
We would never advise anyone to try and handle their divorce or child custody case on their own. It isn’t smart, and too much is at stake. Whether you choose us or another attorney, be sure to get some legal assistance. At the very least, get a consultation for advice. Most attorneys charge a small consultation fee for a half hour of their time. That is well worth the money.
We hope your own situation is as painless as possible, and that you quickly get to the point where you can resolve your issues and look to the future.
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