Frequently Asked Questions About Child Custody and Visitation
What do I need to know when seeking custody of my child?
Understanding the types of custody is an important first step in deciding any custody matter. In Maryland, the following types of custody are recognized:
Legal Custody: awards a parent or both parents the right to make legal decisions for the child regarding education, health care, religion, and his or her general welfare.
- Sole Legal Custody: when only one parent holds the right to make legal decisions for the child regarding education, health care, religion, and his or her general welfare.
- Joint Legal Custody: when both parents hold the right to make legal decisions for the child regarding education, health care, religion, and his or her general welfare, without either parent having superior rights.
In Maryland, the courts will favor joint legal custody in situations where the parents have the ability to cooperate with one another in terms of making decisions that are in "the best interest of the child." Many divorcing parents do work very hard towards achieving this goal. Joint custody is definitely not for everyone and can only come about as a result of rational decision-making process focused on the past roles and future expectations of the parents.
Physical Custody: defines and declares the child's residency.
- Sole Physical Custody: when the child lives with one parent and the other has specific visitation rights.
- Joint Physical Custody: when a child is able to reside with each parent for a substantial amount of time during the course of a calendar year. The arrangement does not have to be split 50-50, but it does require some consistent plan or schedule. Under a joint physical custody arrangement, parents may divide the time on a daily, weekly or monthly basis, or any combination of these timeframes.
If the other parent and I have reached an agreement on who should have custody, will the court accept the agreement?
Parents can agree on custody of the minor children. However, the court will make the final decision based on the "best interest of the child." In determining what is in the child's best interest and the type of custody that is best for the child, the court examines many factors; among them: the age and number of children, geographic closeness of the parents' homes (particularly during the school year), the preference of the children, if the child is of sufficient age to express a preference, and communication between the parents. An initial custody order by a court is subject to modification, provided there are changes in the circumstances of the child and/or the parents that warrant a change in custody.
I am a grandparent seeking custody of my grandchildren. Will the court grant me custody?
Grandparent rights are sometimes referred to as "third-party" rights, to distinguish these rights from the rights of the parents. When there is a dispute about custody between a biological parent and a third party, it is presumed that the child's best interest is served by custody in the parent(s). That presumption can be overcome by a showing that (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child. Therefore, in parent-third party disputes over custody, it is only upon a determination that the parent is unfit or that there are exceptional circumstances which make custody in the parent(s) detrimental to the best interest of the child, that the court will inquire into the best interest of the child in order to make a proper custodial determination.
The parent of my grandchildren will not let me visit with my grandchildren. What can I legally do to seek visitation rights?
The right of grandparents to seek visitation is governed by statute. A court may consider a request by a grandparent for reasonable visitation of a grandchild. A recent decision by the Maryland Court of Appeals now requires that the court first make a determination of unfitness or exceptional circumstances before deciding what is in the best interest of the child. Like custody, the court considers factors in determining what is in the child's best interest.
The other parent(s) (or custodian(s)) of my children will not allow me to visit with them. How can I seek visitation?
Usually, visitation rights are considered and discussed during a court proceeding at the time other issues are discussed; e.g., divorce, custody proceedings. However, even if you have not participated in these types of proceedings, you can still seek visitation. You can also seek to modify an existing visitation order if circumstances have changed significantly and the current visitation schedule is no longer in the best interest of the child.