Harford County Child Custody Attorneys
Searching for experienced Harford County Child Custody Attorneys? The Law Offices of James Gahring Gault, conveniently located in Bel Air, MD, provides trusted legal counsel for all of your family law matters. Call (410) 638-2600 today or simply contact us using our online contact form and you will receive a response within 24 hours.
Child Custody & Visitation
Divorce is difficult. For those involving children, it can seem insurmountably so. Spouses that have made the decision for divorce often face difficulties in achieving a child custody and/or visitation agreement that both parties are happy with. When it comes to the kids, emotions run high and brutal legal battles can ensue. As you begin journeying through the hard road of divorce, it is important that you familiarize yourself with the various types of child custody and visitation that may be, or should be, sought for your children. When it comes to child custody, your child(ren)’s best interests must prevail in any and all custody decisions. Review the information below and call (410) 638-2600 when you’re ready to speak with experienced Harford County Child Custody Attorneys.
Legal Custody v. Physical Custody
Child custody consists of both legal custody and physical custody. Child custody is joint or shared whenever it is awarded to both parents.
Legal custody is defined as “the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare”. Figuratively speaking, legal custody concerns the right to make decisions regarding the child’s mind, or soul, or well-being.
Joint Legal Custody
In determining whether joint legal custody is appropriate, the capacity of the parties to communicate and reach shared decisions regarding the child’s welfare is of paramount importance.
Physical custody is defined as “the right and obligation to provide a home and make day-to-day decisions”. Generally speaking, physical custody refers to a parent’s right to maintain or exercise control of the physical location of the child at a given time. In other words, physical custody means that the parent has actual possession of the child’s body, such that he or she is in control of the actual whereabouts of the child.
Primary Physical Custody
Primary physical custody refers to a child custody schedule where one parent has the physical custody of the child for the majority of the time. This is often called residential custody since the child uses that parent’s residence for his or her mailing address, school purposes, and so on. On the other hand, the parent who does not have the child for the majority of the time has partial physical custody or visitation rights.
Shared Physical Custody
Shared physical custody is a term that concerns both child support and custody. In order to apply the child support guidelines appropriately in any given case, it must first be determined whether the custody situation involves shared physical custody or if primary physical custody is assigned to one parent. Shared physical custody means that each parent keeps the child or children overnight for more than 35% of the year (i.e. 128 overnights) and that both parents contribute to the expenses of the child in addition to the payment of child support.
A parent who is not granted custody will typically be given a right to liberal visitation with his or her child at reasonable times and under reasonable conditions. However, this right is not absolute, and when the child’s health or welfare is at stake, visitation may be restricted or even denied. Moreover, a denial of visitation to a parent does not necessarily equate with a denial of all contact inasmuch as communication between the parents and child may occur via telephone, email, letters, etc.
In some legal custody situations, the court Order may specify that one parent has the tie-breaking authority if an impasse arises as to a custody matter. The parent that demonstrates he or she has the greater ability to be stable will be eligible for the tie-breaking authority. This type of provision in a custody Order represents a proactive measure in anticipation of post-divorce disputes over the children.
Best Interests of the Child
In Harford County and throughout Maryland, Child custody proceedings are required to determine the “Best Interests of the Child”. This is the overarching legal concept that governs every single custody matter.
The driving consideration for the Circuit Court’s custody determination is the “Best Interests of the Child”, the controlling factor, or guiding principle, in custody cases is not the natural parents’ interest in raising the child, but rather what best serves the interest of the child. Accordingly, the paramount consideration is what will best promote the child’s welfare.
For example, the best interests and welfare of the children of the same parents are best served by keeping them together to grow up as brothers and sisters under the same roof. Maryland law frowns upon the division of siblings.
Preference of the Child
Once a child reaches the age of discretion, the preference of the child is a factor that may be considered in making a custody order, however the judge is not required to speak with the child. The child’s best interests, not the child’s wishes, are decisive on the issue of custody.
The preference of the child was addressed by a Maryland appellate court in 2014. In that case, the mother was not in contempt when she “continually encouraged” the parties’ 13-year old son to go to his father when the child simply refused to cooperate and simply refused to see his father. The court found that the mother had not alienated the child from the father, and that there was no evidence that the lack of visitation was “the mother’s doing”. Two witnesses corroborated the mother’s assertion that she had urged the child without success to see their father. The master found that it was the 13-year old “who [was] refusing to visit” with no evidence that the mother had refused visitation. The court rejected the father’s contempt allegations against the mother.
16-Year Old & 17-Year Old Children can Change their Custody Situation
In Maryland, a child who is 16-years old or older and who is subject to a custody order or decree may file a petition to change custody. There is no need to appoint a guardian. After the petition is filed, a hearing will be held before the Circuit Court. Thereafter, the court may amend the prior custody order and place the child in the custody of the parent designated by the child.
Third-Party Custody Cases / Grandparents Access
The parents of a minor child have the fundamental right to make decisions regarding the care, custody, and control over their child such that third parties seeking visitation contrary to the parents’ wishes must demonstrate that the absence of such visitation would have a significant deleterious effect on the child.
A third party must show that a biological parent is unfit or that exceptional circumstances exist to overcome the biological parent’s constitutionally protected liberty interest in the care, custody, and control of his or her child.
If the third party meets the “unfit parent” or “exceptional circumstances” standard, only then may the Circuit Court consider whether it would be in the best interests of the child to award custody or visitation to the third party.
Grandparents are third parties and are subject to this burden of proof.
The best interests of the child standard is always determinative in child custody disputes, and when the dispute involves a third party it is presumed that the child’s best interest is served by awarding custody to a parent.
In child custody disputes between a parent and a third party, it is only upon a determination that the parent is unfit or that there are “exceptional circumstances” that the court need inquire into the best interest of the child in order to make a proper custody award. The following factors may be applied in determining if “exceptional circumstances” exist that would make parental custody detrimental to the child’s best interest:
- The length of time the child has been away from the biological parent,
- The age of the child when care was assumed by the third party,
- The possible emotional effect on the child of change of custody,
- The period of time which elapsed before the parent sought to reclaim the child,
- The nature and strength of the ties between the child and the third-party custodian,
- The intensity and genuineness of the parent’s desire to have the child, and
- The stability and certainty as to the child’s future in the custody of the parent.
Other important factors can be the stability of the child’s current home environment, whether there is an ongoing family unit, and the child’s physical, mental, and emotional needs. Another important factor may be the child’s relationship with the third party that results in bonding and psychological dependence. Further, it is ordinarily in the best interest of a child to be raised with his or her siblings.
Presumption in Favor of Biological Parents
The presumption exists that it is in the best interest of the children to remain in the custody of their parents. However, the parents’ right is not absolute and must be balanced against the fundamental right and responsibility of the State to protect children, who cannot protect themselves, from abuse and neglect. Therefore, this parental presumption may be rebutted upon showing either that the parent is unfit or that exceptional circumstances exist which would make continued custody with the parent detrimental to the best interest of the child.
For more detailed information regarding your child custody matter, please view the resources and information available at the Harford County’s Office of Family Court Services website. To discuss your child custody dispute with experienced Harford County Child Custody Attorneys, give Attorney Gault a call at (410)638-2600 today!