| FREQUENTLY ASKED QUESTIONS Custody and Visitation |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| Meiselman & Helfant, LLC 29 Wood Lane Rockville, Maryland 20850 301-279-8840 Fax 301-279-9630 E-mail: info@mdfamlaw.com |
NOTICE: None of these questions and answers constitute legal
advice. To obtain legal advice, consult with an attorney. This is
especially important in divorce and family law matters, in which
outcomes are often peculiar to the particular facts and
circumstances of the case.
Q. Do mothers have an advantage in custody proceedings?
A. An honest answer to this question must separate what Maryland
courts and law aspire to from what really happens. In Maryland, the
legal preference for awarding custody to mothers was abolished by
the courts and by the state ERA many years ago. Still, mothers are
awarded custody much more often than fathers. This could be
because the maternal preference still survives in the hearts and
minds of some judges, or it could be because primary caretakers are
more often mothers than fathers.
Q. What standard does a court apply in making a custody
decision?
A. In any child custody case, the paramount concern is the best
interest of the child. Formula 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. 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.
Q. What is legal custody?
A. Embraced within the meaning of "custody" are the concepts of
"legal" and "physical" custody. 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 a child's life and welfare.
Q. What is "joint" legal custody?
A. Joint legal custody means that both parents have an equal voice
in making legal custody decisions, and neither parent's rights are
superior to the other.
Q. What is physical custody?
A. Physical custody 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.
Q. What is joint or shared physical custody?
A. Joint physical custody is in reality "shared" or "divided" custody.
Shared physical custody may, but need not, be on a 50/50 basis,
and in fact most commonly will involve custody by one parent during
the school year and by the other during summer vacation months,
or division between weekdays and weekends, or between days and
nights. Note: This is NOT the definition of "shared custody" used in
computing child support.
Q. What standard does a court apply in making a visitation
schedule?
A. Visitation issues are judged by the same standard as other
custody issues: the best interests of the child.
Q. What factors are considered in determining the best
interests of the child?
A. Remember, no list of factors can be complete, because of the
unique character of each case. That said, here is a list culled from
Maryland cases: (1) Fitness of parents. (2) Character and reputation
of parties. (3) Desire of parents and agreements between 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 the
parents, and opportunities for visitation; or geographic proximity of
parental homes. (9) Length of child's separation from parent. (10)
Prior voluntary abandonment or surrender.
More factors, especially important when considering joint custody:
(1) Capacity of parents to communicate and reach shared decisions
affecting child's welfare. (2) Willingness of parents to share custody.
(3) Relationship between child and each parent. (4) Potential
disruption of child's social and school life. (5) Demands of parental
employment. (6) Sincerity of parent's request. (7) Financial status
of parents. (8) Benefit to parents.
Q. How important is the ability of parents to communicate
with one another?
A. Clearly the most important factor in deciding joint legal custody is
the capacity of the parents to communicate and to reach shared
decisions affecting the child's welfare. Indeed, joint custody should
not be awarded in the absence of a record of mature conduct on the
part of the parents evidencing an ability to effectively communicate
with each other concerning the best interest of the child, and then
only when it is possible to make a finding of a strong potential for
such conduct in the future.
Q. To have joint custody must the parents agree about
everything?
A. No. The parents need not agree on every aspect of parenting,
but their views should not be so widely divergent or so inflexibly
maintained as to forecast the probability of continuing disagreement
on important matters.
Q. Does sexual orientation of a parent matter?
A. Sexual orientation may be considered in making a custody
decision only insofar as the minor child is actually harmed by it. This
puts sexual orientation in the same category as lots of other
behavior, including adultery and religious practices.
Q. Before there is a court order, who has custody?
A. Both parents are the joint natural guardians of their child under
eighteen years of age and are jointly and severally charged with the
child's support, care, nurture, welfare and education. They have
equal powers and duties, and neither parent has any right superior
to the right of the other concerning the child's custody.
advice. To obtain legal advice, consult with an attorney. This is
especially important in divorce and family law matters, in which
outcomes are often peculiar to the particular facts and
circumstances of the case.
Q. Do mothers have an advantage in custody proceedings?
A. An honest answer to this question must separate what Maryland
courts and law aspire to from what really happens. In Maryland, the
legal preference for awarding custody to mothers was abolished by
the courts and by the state ERA many years ago. Still, mothers are
awarded custody much more often than fathers. This could be
because the maternal preference still survives in the hearts and
minds of some judges, or it could be because primary caretakers are
more often mothers than fathers.
Q. What standard does a court apply in making a custody
decision?
A. In any child custody case, the paramount concern is the best
interest of the child. Formula 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. 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.
Q. What is legal custody?
A. Embraced within the meaning of "custody" are the concepts of
"legal" and "physical" custody. 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 a child's life and welfare.
Q. What is "joint" legal custody?
A. Joint legal custody means that both parents have an equal voice
in making legal custody decisions, and neither parent's rights are
superior to the other.
Q. What is physical custody?
A. Physical custody 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.
Q. What is joint or shared physical custody?
A. Joint physical custody is in reality "shared" or "divided" custody.
Shared physical custody may, but need not, be on a 50/50 basis,
and in fact most commonly will involve custody by one parent during
the school year and by the other during summer vacation months,
or division between weekdays and weekends, or between days and
nights. Note: This is NOT the definition of "shared custody" used in
computing child support.
Q. What standard does a court apply in making a visitation
schedule?
A. Visitation issues are judged by the same standard as other
custody issues: the best interests of the child.
Q. What factors are considered in determining the best
interests of the child?
A. Remember, no list of factors can be complete, because of the
unique character of each case. That said, here is a list culled from
Maryland cases: (1) Fitness of parents. (2) Character and reputation
of parties. (3) Desire of parents and agreements between 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 the
parents, and opportunities for visitation; or geographic proximity of
parental homes. (9) Length of child's separation from parent. (10)
Prior voluntary abandonment or surrender.
More factors, especially important when considering joint custody:
(1) Capacity of parents to communicate and reach shared decisions
affecting child's welfare. (2) Willingness of parents to share custody.
(3) Relationship between child and each parent. (4) Potential
disruption of child's social and school life. (5) Demands of parental
employment. (6) Sincerity of parent's request. (7) Financial status
of parents. (8) Benefit to parents.
Q. How important is the ability of parents to communicate
with one another?
A. Clearly the most important factor in deciding joint legal custody is
the capacity of the parents to communicate and to reach shared
decisions affecting the child's welfare. Indeed, joint custody should
not be awarded in the absence of a record of mature conduct on the
part of the parents evidencing an ability to effectively communicate
with each other concerning the best interest of the child, and then
only when it is possible to make a finding of a strong potential for
such conduct in the future.
Q. To have joint custody must the parents agree about
everything?
A. No. The parents need not agree on every aspect of parenting,
but their views should not be so widely divergent or so inflexibly
maintained as to forecast the probability of continuing disagreement
on important matters.
Q. Does sexual orientation of a parent matter?
A. Sexual orientation may be considered in making a custody
decision only insofar as the minor child is actually harmed by it. This
puts sexual orientation in the same category as lots of other
behavior, including adultery and religious practices.
Q. Before there is a court order, who has custody?
A. Both parents are the joint natural guardians of their child under
eighteen years of age and are jointly and severally charged with the
child's support, care, nurture, welfare and education. They have
equal powers and duties, and neither parent has any right superior
to the right of the other concerning the child's custody.
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| Contact Meiselman & Helfant, LLC Today Call 301-279-8840 |
| Meiselman & Helfant, LLC |
29 Wood Lane, Rockville, Maryland 20850
| Call 301-279-8840 |
| Serving Bethesda, Chevy Chase, Gaithersburg, Germantown, Kensington, Potomac, Rockville, Silver Spring, Wheaton, Montgomery County, Prince George's County, Frederick County, and Howard County. |
