BEST INTEREST OF THE CHILD – KING SOLOMON SPLITS THE CHILD
Founder/Owner THE FIRM, LLC
This brief article will focus on what factors the Maryland Courts take into account when determining child custody cases and parental access and visitation.
Each case is distinct and no two (2) cases—however similar in some aspects—are exactly alike. King Solomon, who is regarded as the wisest man that ever lived figured that cutting the child in two would not further either parental interest but when the parents of minor child(ren) are not living together, the time sharing element attempts to accomplish this partitioning of the child(ren) from one home to the next home.
1. The Taylor and Montgomery v Sanders Factors.
a. In Maryland, a Judge determines which parent should be awarded sole physical custody or shared physical (sometimes referred to as joint custody) of the child(ren) by a determination of what the Court believes is in the best interest of the child(ren).
This best interest determination could be derived from testimony of the parents themselves, character testimony on behalf of the parents from family/friends/co-workers, etc., testimony from the child(ren) themselves, testimony from the child’s therapists, testimony and recommendation from the child’s lawyer (called a best interest attorney) and other evidence produced at the trial.
The evidence received at trial should be applied by the Judge in light of factors derived from landmark cases in Maryland: Taylor v Taylor and Montgomery v Sanders.
Some of these factors include: the child desires, fitness of the parents, preference of the child (who is of reasonable age to articulate a preference), age, health, and sex of the child, character and reputation of the parties, financial status of the parents, geographic proximity of parental homes, potential disruption of child’s social and school life, willingness of parents to share custody, relationship established between the child and each parent, demands of parental employment, and demands of parental employment…are some of the factors considered. In a child custody proceeding,
the Judge will decide which factors are most important and render a decision he/she feels serves the child’s best interest. Other decisions determined by the Court are pick up and drop off locations, school holiday schedules, and summer schedules.
2. Legal Custody.
a. Legal custody is not a time sharing mechanism but a decision making tool.
The Judge will decide if the parents should have joint legal custody or sole legal custody. In a joint legal custody situation, both parties are active participants in making vital decisions concerning the child’s well being; to include, religious decisions, scholastic decisions, and healthcare decisions. In a sole legal custody situation, one parent may be responsible for making these decisions on behalf of the child.
When deciding legal custody, a Judge will consider whether the parents have the capacity to communicate effectively to reach shared decisions concerning the child(ren). Even when there is a communication conflict between parents, the Court may be reluctant to award sole legal custody but may award joint legal custody and provide that if the parents cannot come to a decision, the parent who has primary custody will be responsible for making the ultimate decision.
This is also known as tie-breaking legal custody authority to the primary custodial parent.
3. Time Sharing and Child Support.
a. Child custody and time sharing will ultimately determine who will be paying child support and who will be receiving child support.
The noncustodial parent pays the custodial parent child support. In Maryland, child support is calculated either of two (2) ways: sole custody child support guidelines or shared custody child support guidelines. The determination of which is calculated is based on the time sharing of the parties.
Shared custody is defined as a parent having the child(ren) living with them for at least 128 overnight stays. The calculation for child support is different for shared custody and sole custody.
a. Either parent may file a Petition to Modify the Child Custody Order if there is a material change in circumstance, such that the previous Order is no longer in the best interest of the child(ren).
An example of a material change may be that that child is doing poorly in school, and/or the safety and health of the child is compromised. Each case is different and distinct. It is up to a Judge to decide IF (1) there is an actual material change, and if there is a material change (2) does the change require that the present Child Custody Order be modified.
a. Either party has the right to file a Petition for Contempt if they believe the Child Custody Order is not followed.
If the Judge finds that a parent is in contempt of the Court Order, the Judge may award attorney’s fees, modify the Order to address the Contempt, and in rare cases request jail time for the violation.
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