It’s All About The Children’s Best Interest - Not The Parents

LITIGATING CHILD CUSTODY IN MARYLAND

A court, in order to determine custody, must first determine the best interest of the child. The Maryland Court of Appeals has stated that “[W]hen the custody of children is the question … the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that.” Kartman v. Kartman, 163 Md. 19, 22,161 A. 269 (1932). The absolute obligation on the trial judge to undertake a thorough examination of all possible factors before determining child custody was forcefully set out by Judge McAuliffe in Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964 (1986):

Formula or computer 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. At best we can discuss the major factors that should be considered in determining whether joint custody is appropriate, but in doing so we recognize that none has talismanic qualities, and that no single list of criteria will satisfy the demands of every case. We emphasize that in any child custody case, the paramount concern is the best interest of the child. …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.

The Taylor Court detailed the two basic forms of custody. These two forms are:

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 the child’s life and welfare. Joint legal custody means that both parents have an equal voice in making those decisions, and neither parent’s rights are superior to the other.

Physical custody, on the other hand, 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.

Each type of custody can be broken down into either joint or sole. Therefore, joint legal custody means that each parent has the right to share in longer-range decision-making including education, religious training, medical care and other matters of significance regarding their children. Sole legal custody gives that right to only one parent. Joint physical custody means that the child or children share their time between the parents. There does not have to be an equal sharing of time in order to qualify as joint physical custody.

Taylor laid out fourteen factors for a court to consider in an award of joint custody:

1. Capacity of the parents to communicate and to reach share decisions affecting the child’s welfare;
2. Willingness of parents to share custody;
3. Fitness of parents;
4. Relationship established between the child and each parent;
5. Preference of the child;
6. Potential disruption of child’s social and school life;
7. Geographic proximity of parental homes;
8. Demands of Parental Employment;
9. Age and number of children;
10. Sincerity of parents’ request;
11. Financial status of the parents;
12. Impact on state or federal assistance;
13. Benefit to parents; and;
14. Other factors.

Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964 (1986).

In Montgomery County v. Sanders, 38 Md. App. 406, 419, 381 A.2d 1154 (1977), Chief Judge Gilbert described what a child custody determination unavoidably calls for on the part of the judge:

Present methods for determining a child’s best interest are time-consuming; involve a multitude of intangible factors that ofttimes are ambiguous. The best interest standard is an amorphous notion, varying with each individual case, and resulting in its being open to attack as little more than judicial prognostication. The fact finder is called upon to evaluate the child’s life chances in each of the homes competing for custody and then to predict with whom the child will be better off in the future.

Judge Gilbert went on to catalogue some of the myriad factors that must be considered:

“What critics of the “judicial prognostication” overlook is that the court examines numerous factors and weighs the advantages and disadvantages of the alternative environments. The criteria for judicial determination includes, but is not limited to:

1. Fitness of the parents;
2. Character and reputation of the parties;
3. Desire of the natural parents and agreements between the 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 parents and opportunity for visitation;
9. Length of separation from the natural parents, and;
10. Prior voluntary abandonment or surrender.

Montgomery County v. Sanders, 38 Md. App. 406, 420, 381 A.2d 1154 (1977).

Child custody cases require an experienced local family law lawyer. Family law lawyers concentrate their practices solely in family law and are experienced in successfully presenting the proper evidence to the Judge. Thus, when deciding upon proper representation in litigating the custody of your child (or of your children), it is also incumbent upon you, as a parent, to consider what is in their “best interest.” This is not a time to cut corners.

Related posts:

1. Solomon’s Dilemma: How do we Split the Babies?
2. A Plea to Parents from a Divorce Lawyer: Leave Your Kids Out of It!
3. Maryland Online Child Support Calculator
4. Paternity in Maryland: Who’s Your Momma?
5. What Rights do Grandparents have to Visitation in Maryland?