When parents separate one of the toughest aspects is determining what the arrangement for custody of the children will look like going forward. Sometimes parents are able to cooperate with one another and come to an agreement. Sometimes there are fundamental disagreements between the parents that make negotiations unfeasible, leaving the final decision to a judge. If a judge is making the final custody determination in a case, the standard that applies is always in the best interest of the child. The best interest standard includes a set of factors that the court considers to determine the arrangement that best suits the children in the case. It is not a “one size fits all” evaluation. The judge looks to the specific facts of the case and how the facts square with the best interest factors and makes a decision accordingly.
Type of Custody Arrangements that the Judge Decides:
The type of custody arrangements that the court must determine is physical custody and legal custody. The judge can order physical and legal custody in a number of ways, including temporary custody (pendente lite), shared custody, and joint custody, depending on the circumstances.
Physical custody: focuses on where the child primarily resides; it involves spending time with the child and caring for the child’s everyday needs while in your care.
Legal custody: involves decision-making power over significant aspects of the child’s life and welfare. For instance, decisions about the child’s education, medical issues, religion, and mental health needs.
Best Interest Factors:
When making a decision about custody, the court always looks to the best interest factors, which are discussed in Taylor v. Taylor, 306 Md. 290 (1986). These factors include, but are not limited to:
- Who primarily cares for the child? Takes care of basic needs?
- Willingness of the parties to share custody
- Psychological and physical capabilities of the parties
- Relationship between the child and each parent
- The preference of the child
- Disruption to the child’s social and school life
- Geographic proximity of the homes of the parents
- Work schedules of the parents
- Age and number of children
- Sincerity of the request of each parent
- Financial status of the parents
- Length of separation
- Religious views
- Age, health, gender of the child
Child’s Preference:
In some instances, particularly with an older child, the child may have a strong opinion about where he or she resides and what the access schedule with the other parent looks like. While the child’s preference would not take priority over any one factor – as all of the best interest factors receive equal weight – it is among the factors to be considered. As discussed in Taylor v. Taylor, 306 Md. 290 (1986), the “reasonable preference of a child of suitable age and discretion should be considered in addition to being sensitive to the possible presence of the “lollipop” or “rescue” syndromes, the trial judge must also recognize that children often experience a strong desire to see separated parents reunited, and this motivation may produce an unrealistic preference for joint custody.” There is no litmus test – or predetermined age – by which a Judge must consider the child’s opinion in a custody case. Ultimately it is up to the individual judge in each case to make a determination as to the weight to give the preference of the child. The judge will look to the age, maturity, judgment and reasoning when evaluating the stated preference of the child.
When it comes to the presentation of the wishes of the child, courts take various approaches here as well. In some cases, the judge may appoint a separate lawyer for the child to represent the child and communicate the wishes of the child. In other cases, the judge may interview the child in chambers in order to make a determination about the child’s preferences. The judge may also allow a child to testify as a witness in the course of a trial. In either setting, the judge balances minimizing any added stress on the child in an already difficult situation, with creating a space to safely allow the child to communicate their preferences.
If you have a custody case in Maryland and need an attorney, contact the experienced family law attorneys at Krum, Gergely & Oates to get started with a consultation today.
