What Determines Physical Custody in Maryland?

by Elizabeth Rayne
Physical custody is based on the best interest of the child.

Physical custody is based on the best interest of the child.

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Understanding what physical custody is and why it is ordered by Maryland judges can help parents decide which type of parenting arrangement to pursue. The term "physical custody" refers to day-to-day decision-making in combination with providing a living environment for the child. Physical custody can be agreed upon by parents in lieu of a sole or joint legal custody court order. Judges in Maryland consider many factors in making an initial determination of custody, and a modification may be sought in the future by either parent.

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Types of Custody

In Maryland, the law distinguishes between legal and physical custody. Legal custody gives a parent the right to make broad, long-term decisions affecting the child. Conversely, physical custody refers to where the child lives and the day-to-day decision-making for the child. Physical custody may also be referred to in Maryland as the child's primary residence, primary care or residential custody. If one parent is awarded sole custody, that parent will have both physical and legal custody. Conversely, the parents may share both legal and physical custody or one parent may have sole physical custody while both parents have joint legal custody.

Parenting Agreements and Custody Orders

Parents in Maryland are encouraged to reach their own parenting plan, also known as a stipulation. To be enforceable, the court must approve the parenting plan by signing a consent order. If parents are not able to reach an agreement about the custody arrangement, the court may order mediation or the parents may voluntarily attend mediation. A mediator is a neutral party that assists in helping the parents find an arrangement that is fair to everyone. When parents are unable to come to an agreement even after mediation, the court will determine the custody arrangement.

Determining Custody

When it is up to the court to award custody, the primary concern is the best interest of the child. The judge will consider a number of factors, such as the ability of each parent to care for the child, character and reputation of the parents, residences of each parent or a parent's prior abandonment of the child. Maryland child custody laws provide that judges cannot favor either the mother or the father in awarding custody. Apart from the gender of the parents, the judge has wide discretion in determining custody based on many variables deemed relevant to the best interest of the child.

Modification

If there is a change in circumstances after the original custody order was issued, either party may ask the court for a modification of the custody order. The motion to modify is filed in the same court that issued the original order. A parent will only succeed in modification if he can show there has been a substantial change in circumstances and it would be in the best interest of the child to alter the custody arrangement. Generally, the court assumes it is in the best interest of the child to have a consistent custody order, so it can be tricky to convince a judge otherwise.