Custody disputes can be a frightening time for any parent. This can be especially true for Active Duty military parents, who feel they may be disadvantaged in the custody agreement due to the frequency of relocations, career obligations, and the potential for deployments required by their employment.
In the State of Maryland, child custody is determined by considering the totality of circumstances and the Court strives to craft an agreement that is in the best interest of the child. What exactly does that mean? Basically, no two child custody circumstances are the same and the Courts attempt to examine each case individually. Though each case is individually examined, there are basic elements the Court will consider and methods for improving the chances of a favorable outcome for both parents.
Legal Custody vs. Physical Custody
Legal custody involves the right and obligation to make long range decisions about 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 parent’s rights. However, sometimes the Court provides for a “tie-breaker” authority in anticipation of post divorce parental disputes.
Physical Custody involves the right and obligation to provide a home for the child and to make the day-to-day decisions affecting the children.
Often, the best way to achieve a desirable child custody arrangement is to craft it with the other parent during custody negotiations. A reasonable custody agreement reached by both parties in a mature and open manner will most likely be acceptable to the Court.
If there are no concerns for the safety of the child, the process of determining child custody will be much smoother if both parents come to the negotiating table with an open mind and a determination to keep the child’s best interest at the forefront of the conversation. As Active Duty military, negotiations can also be an ideal time to discuss service commitments and obligations and flexible scheduling options. A custody agreement can be reached through informal negotiations between two amicable parents. These agreements should be reviewed by each party’s attorney to ensure all relevant matters are addressed and agreed upon before submission to the Court. Alternative Dispute Resolution (ADR) refers to processes by which disputes between parties can be settled outside the courtroom without a lengthy trial. A family can negotiate a parenting agreement, with or without the assistance of attorneys. The ADR process tends to be less adversarial and more informal than the traditional court setting. ADR may be advantageous when considering factors such as the degree of conflict between the parties on issues being disputed, the degree of the parties’ ability and willingness to work together to resolve issues, and the degree of the parties’ motivation to limit issues from becoming public record. Mediation is a non-adversarial process where a mediator meets with the parents to help them settle their dispute. Mediation of custody issues can help parents avoid hostile, stressful and traumatic litigation of a custody dispute. The mediator does not have the power to impose a solution. Rather, his or her role is to assist the parents in creating an agreement of their own. In some states, the mediator may be asked by the court to make a recommendation if the parties cannot reach an agreement. Many states require parents to attend mediation as a first attempt to reach a child custody and visitation agreement.
Some elements considered by the Court
- Fitness of Parents – The psychological and physical capabilities of both parents including conduct and characteristics which may impact the parent’s ability to care for a child and adversely affect the welfare of the child
- Character and Reputation of the parties
- Desire of the natural parents and the agreements between the parties
- Potentiality of maintaining natural family relations
- Preference of the child, if the child is of sufficient age and intelligence to form a rational judgement
- Material opportunities affecting the future life of the child. Most likely considered in conjunction with related facts showing parental unfitness, such as a child not taken care of by its parents within their means
- Age, Health and sex of the child (The maternal preference doctrine whereby a child of tender years was presumptively better off with the child’s mother was abolished in Maryland)
- Residences of parents and opportunities for visitation
- Length of separation from the natural parents
- Prior voluntary abandonment or surrender
Additional Considerations when determining Joint Legal Custody
- Capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare
- Willingness of parents to share custody
- Fitness of parents, e.g. psychological and physical capabilities of both parents
- Relationship established between the child and each parent
- Preference of the child
- Potential disruption of child’s social and school life
- Geographic proximity of parental homes
- Demands of parental employment
What should I do now?
Where you live, how you act and your personal situation will all be evaluated and compared to the other parent’s situation. Before you make any moves, you need to know what is important to the court and what will help or hurt your custody case. Patriots Law Group can assist you in this very important issue in your life and the life of your child.
Of course, if you believe your child’s other biological parent presents a risk of harm, then you need to seek legal assistance immediately. Depending on the situation, it may be possible to file emergency petitions to obtain an immediate custody order. If you believe you are confronted with this type of situation, you should seek legal advice immediately.