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General Custody & Access Factors

Maryland law presumes that both natural parents are the natural custodians of their children. The law does not favor either the mother or father. The information contained within is designed to give you general information on how courts decide custody and access rights in Maryland. Either of the separated parents may petition a circuit court in Maryland for custody of a child. If the parties cannot agree about who should have custody, the court will grant custody either solely to one of the parents or shared between both parents.

The law looks at the “best interests” of the child when deciding on child custody and visitation. The “best interests” of the child looks at certain factors to determine what is best for the child or children. Court-ordered custody has two components, physical and legalCustody and access arrangements are never permanent. As situations change, a parent can always petition the Court to modify a Court order.

Types of Court Ordered Custody and Definitions

Physical Custody

Involves spending time with the child and making day to day decisions about the child’s everyday needs. When the child is under the care of a particular parent, that parent is referred to as the “Custodial Parent.” This is easiest stated as to where the child spends most nights and where the child is registered for school.

Shared Physical Custody

Is when the child has two (2) residences, spending at least 35% of the time with each parent. The court is seeking to change the definition for this at the time of writing.  Also, this is a major factor for child support.

Legal Custody

Involves the right to make long-term plans and decisions for education, religious training, discipline, non-emergency medical care, and other matters of major significance concerning the child’s welfare.

Joint Legal Custody

Is where the parents work together and share the care and control of the upbringing of the child, even if the child has only one primary residence. Each parent has an equal voice in making decisions. There are hybrid versions of joint legal custody where one parent may have “tie-breaking” authority (the final word in cases of disagreement), or each parent may have certain areas of decision-making authority.

Sole Legal Custody

A person may be granted sole legal custody, sole physical custody, or both.

Emergency Custody

If you believe there is an imminent risk of substantial and immediate harm to you and/or your minor child, you may wish to consider a request for emergency relief. The specific procedure to request emergency custody can vary from Circuit Court to Circuit Court; however, the emergency custody hearing usually takes place very quickly after filing the request. If you are granted emergency custody, this is a temporary order, and you will need to continue with your case until there is a final order providing permanent relief. While the emergency custody is temporary, it is not the same as temporary custody or pendente lite custody.

Temporary Custody

Temporary custody is also called pendente lite, meaning “pending the litigation”. To formalize custody before you begin litigation, you will need to file for temporary court-ordered custody. Temporary custody will be based on the “best interests” of the child. It is not an “initial” award of custody. Instead, it is temporary custody while you wait for the court to hold a hearing.

“Best Interests of the Child” – Factors the Judge Considers

  • Primary Care Giver – Who is the person who takes care of the child? Who feeds the child, shops for their clothes, gets them up for school, bathes them, and arranges day care? Who does the child turn to when they get hurt?
  • Fitness – What are the psychological and physical capacities of the parties seeking custody? The court may also consider evidence of abuse by a party against the other parent, the party’s spouse, or any child residing within the party’s household (including another child).
  • Character and Reputation
  • Agreements – Is there a custody agreement already in place?
  • Ability to Maintain Family Relationships – Who will be best able to help the child keep family relationships? Who is going to let the child speak with their ex-mother-in-law, for example? Who will not penalize the child for any bad action on the part of the other parent?
  • Child Preference – The decision of the court may be reversed on appeal if the judge will not hear the child’s preference. However, the judge may choose to interview the child outside the presence of the parents. Though it is rare, the court will hear from a child under 7 years, and a child as young as 5 or 6 years of age may be heard. The child’s maturity, and whether the child can tell the truth from fiction will guide the decision whether a child may be heard. A child of at least 10 or 12 years of age is certainly entitled to have their opinions heard and given weight in legal proceedings about custody. Additionally, the court has the power to appoint an attorney for the child in contested cases.
  • Material Opportunity – Which parent has the financial resources to give the child more things?
  • Age, Health and Gender of Child
  • Residences of Parents and Opportunity for Visitation – How close do the parents live to each other? How close do they live to members of the child’s extended family? Which parent lives closest to the child’s school and social circle?
  • Length of Separation – How long has the parent been separated from the child?
  • Any Prior Abandonment or Surrender of Custody – Is there a history of one parent walking out and leaving the other parent to cope with the child and the home? Which parent left when you last broke up?
  • Religious Views – These will be important in the court’s decision only if you can show that religious views affect the physical or emotional well-being of the child.
  • Disability – A party’s disability is only relevant to a custody decision if the disability affects the best interest of the child.
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Parenting Plan

The best interests of the child also come up in the context of parenting plans. A parenting plan is a written agreement about how the parents will work together to take care of the child.  The courts are seeking the parents of children to come up with the plan for custody and access to their children.  The court now requires the parties to submit a Parenting Tool or Plan to aide the court in determining what is in the best interest of the minor child.

Joint Custody Agreements

Parents can agree on some combination of shared physical and joint legal custody. One example of this is when there is one residence for the child, and the parents live with the child there on a rotating basis. The court looks very closely at Joint Custody agreements. The most important factor to Joint Legal Custody and Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child’s welfare. If parents are constantly fighting over religion or school, the court may strike down their agreement.

Additionally, the sincerity of the parties involved is important. The court will want to make sure that joint custody isn’t being traded for concessions on other points. Another consideration is whether the grant of joint custody will affect any state or federal assistance programs. Currently, Welfare and Medical Assistance are affected based on the award of Joint Legal Custody. Be sure to check with your contact at any social service agencies before entering into an agreement or you may risk losing your benefits. This list is not meant to be complete, and the court will hear anything that they believe to be relevant.

Other factors include:

  • Willingness to share custody
  • Fitness of parents
  • Child’s relationships with each parent
  • Child’s preference
  • Ability to stabilize the child’s school and social life
  • Closeness to parent’s homes (primarily a factor during the school year)
  • Employment considerations (e.g. long hours, extensive travel, etc.)
  • Age and number of children
  • Financial status
  • Benefit to parent.

What Happens If Both Parents Agree?

If you and the other parent have already come to a fair agreement on the custody and visitation issue, an attorney can draft a Consent Order and/or a Parenting Plan Agreement (PPA). A Consent Order is a draft Order for the judge to sign if the judge agrees to accept your agreement. This means that the court can enforce the agreement in the future.

A PPA may address certain details on the care and upbringing of the child, such as:

  • Which holiday does the child spend with you?
  • What time and where may the other parent pick the child up?
  • What time should the child be returned home?
  • What is the procedure to follow if either of you are running late and won’t be there on time?
  • How much notice should you be given if they are planning a vacation?
  • How far away may the other spouse move?

What you might think you can figure out as you go along could become a bitter disagreement later. The stipulations should state everything that you have agreed upon. You should not rely on verbal promises.

What Happens if Both Parents Disagree?

If you and your significant other are having trouble reaching an agreement, you should consider mediation. A mediator specializes in helping people reach an agreement that is fair and will last. The sessions are confidential. A mediator’s role may be limited to custody. Mediation is not appropriate in cases where there is a genuine issue of physical or sexual abuse of the child or one of the parties. The mediator’s role is not to take sides, but to bring the two sides together.

Unmarried Parents

Many couples who choose not to formally marry often have the same goals as those who do marry, including having children. Similar to married couples, they may decide at any time to dissolve their relationship. When that happens, unmarried parents need to be aware of the differences in how Maryland family law addresses issues of child custody as well as visitation and support.

Generally, when the parents are unmarried, the natural mother is considered the primary caregiver and holds de facto custody. Even if the natural father lives in the same residence as the child, he will need to provide evidence of paternity. In cases where the father lives separately, the court also requires information about how much time he spends caring for the child, and how present he is in the child’s daily life. If living elsewhere, the court will also look at whether the father’s residence is set up to accommodate the child’s needs.

The parents may disagree about custody or visitation rights. However, once paternity is established, neither mother nor father is given a preference based solely on their gender. At this point, the overall well-being of the child will be the court’s standard. Information about each parent’s fitness, ability to provide, and importantly, the willingness of each to cooperate in the sharing of custody will all be taken into account.

A father can establish paternity by:

  • A court determination of paternity
  • Acknowledging paternity in writing
  • Telling others that the child is his
  • Or by marrying the mother and then acknowledging himself as the father, either in writing or orally.
Court Ordered Mediation

The court has the power to order you and the other side to go to mediation.

This is true whether:

  • Your case is just starting;
  • You are requesting modification of an existing order; or
  • You are filing a contempt action.
  • You should be aware, however, that if mediation is ordered by the court at the initial proceeding it will most likely prolong the legal process by stopping all other actions until the mediation is complete. The court will initially order two sessions. However, a mediator may recommend that the court order two additional sessions. You may decide to continue the mediation without the court ordering it. The court also has the power to order one or both parties to pay for the mediation.
Types of Conferences and Hearings
  • Scheduling Conference – initial hearing held after all opposing parties have been served. The purpose of this hearing is to determine contested issues, order services, set dates for the case, and determine the proper track for the case.
  • Status Conference – is a hearing held by the court to gauge the status of a custody case. The Status Conference is usually held approximately 6 months from the date of filing. The purpose is to inform the court concerning the status of discovery, whether any motions are pending, the status of settlement negotiations, and other issues that may be pending.
  • Merits Hearing – the final resolution of a case, heard by a Judge or Magistrate, depending on the complexity and length of the case.

Modification of Custody

When a parent seeks to change the custody order, it is that parent’s and their attorney’s burden to show the court why it should be changed. The court follows the notion of, “if it isn’t broke, don’t fix it.” This is based on the idea that stability is best for the child unless you can show that there is something in the environment that will harm the well-being of the child. This is not as simple as it may seem. It is likely you will need to show that your home will be better than the home of the custodial parent (not just as good). It is imperative that you show that there has been a “substantial change in circumstances” and that it is in the child’s best interests to make the change you are proposing. If the two homes are thought to be equal, then custody will stay as it is. Remember, a temporary or pendente lite custody order is not a final order.

Can a child have a say in a custody decision?

Courts will sometimes listen to the wishes of older children. Courts rarely take into account the wishes of very young children. Children who are 16 years or older may petition the court themselves for a change in custody.

When do grandparents, other relatives or third parties have custody or visitation rights?

Generally, the natural parents will have a presumptive right to custody. Only in cases where the parents are found to be unfit or there are exceptional circumstances, will third parties be granted custody. At any time after a divorce, grandparents may petition the court for visitation rights.


“Jurisdiction” is the set of rules that decides which court hears a case. Jurisdiction is like an imaginary fence that divides legal cases into 2 categories. On one side of the fence are the cases that a certain court can decide. On the other side of the fence are the cases that the court is not allowed to hear. Usually, “jurisdiction” is the reason one court must allow another court to hear the case.

There are two types of jurisdiction: personal jurisdiction and subject matter jurisdiction. The court must have both types of jurisdiction to hear a case. Personal jurisdiction, the power to require a person to appear in court. In Maryland, subject matter jurisdiction to hear custody and visitation cases is with the Circuit Courts. If you have a custody case in Maryland, the Circuit Court is where the case will be filed and heard by a judge or magistrate.

A case can be filed in Maryland if:

  • The child lives in the state and
  • Maryland is the home state of the child (lives in the state, goes to school in-state) and
  • The parent has sufficient contact with the state (works, votes, lives, pays taxes in Maryland).

Even though the child is not in Maryland now, a case can be filed in Maryland if:

  • Maryland was the child’s home state within the last six (6) months and
  • The parent filing for custody continues to live in Maryland
  • The child and at least one of the parents have a significant connection with Maryland (live, work, go to school here) and in Maryland, there are more records and witnesses to give evidence of the child’s present or future care, protection, training, and personal relationships.
  • The child is physically present in Maryland and was abandoned or emergency protection is necessary (an emergency means the child was threatened or a victim of abuse or neglect).

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