Pretty much anyone who has had to deal with residential custody issues in Maryland knows that the standard for determining a minor child’s custody is the “best interest” test, which seems to be a vague notion at first glance. Afterall, what determines what is in the best interest of a child or children without saying more about it. A study of Maryland case law, however, provides some guidance on this subject.

Some of the factors that are considered in deciding what is in the best interest of a child are 1) Fitness of the party seeking child custody, 2) Adaptability of the prospective custodial parent to the task of raising the child, 3) Age, sex, and health of the child (and which parent could best accommodate them), 4) Physical and moral wellbeing of the child, 5) The child’s environment, and 6) The influence likely to be exerted on the child. Gillespie v. Gillespie, 206 Md.App. 146 (2012). In some cases, applying the facts to these factors may result in a court order that awards sole residential custody of a child to one parent or joint residential custody to both parents. Under the Equal Protection Clauses of Maryland and U.S. Constitutions, a court may not consider a parent’s gender as a factor in deciding the custody of a child.

The issue can become more complicated when considering some of the factors and applying the parties’ life-style to them. For example, many clients expect that their spouse’s adultery should be a determining factor in deciding their minor child’s residential custody, particularly when the moral wellbeing of a child is a stated factor in deciding the child’s best interest. But adultery does not become a factor if the child has not been exposed to it. Swain v. Swain 43 Md.App 622 (1979). In other words, a child is not negatively impacted by an adultery that s/he has not been exposed to; obviously, it would be a different situation if an adulterous relationship took place in the presence of a child but that is not a common scenario, and a parent who has exposed the child to his/her adultery probably has neglected the child in many other ways that would negatively impact that parent’s request for custody.

The household where the child resides (or is expected to reside) and its adequacy play a major role in deciding the issue of child custody in Maryland. If the parents have already separated and do not live close to each other after their separation, the parent remaining in the family home where the child resided prior to separation has an advantage because an argument can be made that staying in the marital home would bring stability to the child’s life; in many cases that would allow the child to continue to attend the same school, and maintain the child’s bonds with the his/her friends in the same neighborhood. If you are seeking custody of your child(ren), it would not be prudent to remove yourself from the family home and relocate far from it unless the custody and visitation issues have already been decided by a valid parental agreement or as part of a separation and property settlement agreement.

It is noteworthy that trial courts are prohibited from awarding custody to a parent at a distant future, Schaefer v. Cusak, 124 Md.App 288 (1998), i.e. awarding sole residential custody to one parent but also awarding custody to be changed to joint residential custody 2 years from the trial date. A court custody order is always subject to modification and a parent can petition the court to change the custody schedule provided that there were material and/or significant change in circumstances since the court last entered a custody order that would justify modifying it.

Make sure to review our family law FAQ page for additional information regarding Maryland custody laws. Contact us for an appointment if you would like to schedule a consultation for additional information, or are seeking experienced, aggressive representation in your custody case in Maryland. www.kamkarilaw.com (301) 309-9002.

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