Heather Sweren: Thanks for having me.
Physical or residential custody is essentially the amount of time that each parent is spending with their children or child. It’s also referred to as time-sharing arrangement, for example. It’s the amount of time.
Legal custody is actually a completely different concept because it addresses major decisions that will be made for the children. Legal custody defines who is going to make those decisions. Those decisions can be made jointly – joint legal custody means both parents have to make major decisions together – or they can be made by one designated parent – sole legal custody means that one parent is going to be making those decisions. Legal custody addresses major decisions such as education, medical decisions religion, and just general welfare (which is sort of the catchall). It refers to major decisions, not day-to-day decisions.
It really all depends on whether the parents are able to make that determination themselves. The overriding consideration is always what is in the best interest of the children. That is what both parents are presumably focused on, and that is certainly if the case is in litigation when a judge is focused on making decisions as to what is best for the children. The guiding objective is to come up with a schedule that meets the children’s best interest – which is not always the same as the parent’s best interests.
Parents can decide what’s in their children’s best interest in terms of the schedule or time-sharing arrangement. They can do that through negotiation with their attorneys present or through alternative dispute resolution, which is usually mediation. If there is no resolution, then a judge will make the decision as to the appropriate time-sharing arrangement.
First of all, I want to be careful about not referring to just moms and dads because we do handle a lot of same-sex couples. There are also arrangements that require third parties to step in – such as grandparents, aunts, uncles in certain extreme situations. There’s no presumption in Maryland of 50-50 custody, so it can be 50-50 custody, or you can have one parent who has primary physical custody and the other parent who has what we call access or time-sharing. The range can be significant in terms of what you’re looking at. I’ve been in practice over 16 years, and I’m seeing more and more 50-50 custody arrangements when we have two parents who are able to meet the children’s needs under an agreed-upon schedule.
It comes down to the best interest of the children, ultimately, and how one gets to that conclusion as to what’s in the best interest of the children depends on a lot of different considerations. For example, if the children will be primarily in the care of one parent, which of the parents is going to be able to ensure a more consistent, stable arrangement? Which one will keep the child in the same school, maybe in the same house? Or perhaps one parent who has support from local family or friends so if they can’t be there for some reason, they have friends or family members who can assist. It also very much depends on the age of the children, because when you’re dealing with very young children, a 50-50 custody arrangement wouldn’t necessarily be the appropriate arrangement. There are exceptions to that; I’ve had cases where 50-50 was appropriate for young children. It all just depends, and that’s where the skill of the attorney comes in: to demonstrate how it’s in the best interest of the children and why.
That is absolutely a possibility. It really doesn’t matter what the time-sharing or physical custody arrangement is – you can still have both parents involved in the decision-making process. And now that we’ve experienced the COVID pandemic, we know that many jobs can be done virtually, so you can have somebody participate in a parent-teacher conference or in a meeting with the doctor either by phone or video. It’s very easy to do that now. You certainly can have parents that have joint legal custody even if they don’t have 50-50 physical custody.
In terms of what the physical custody arrangement and the schedule look like, that primarily depends on the children’s ages and the parents’ schedules. Maybe you have a parent who is, let’s say, an emergency nurse or doctor; they’re working long shifts, and they switch between day and night shifts, but they may only be working three or four shifts per week, and you have to work around their unique schedule. Or you could have parents who are pilots or flight attendants, who also have changeable and unique schedules.
The physical custody arrangement also depends on the circumstances of the children: primarily, what the children’s needs are, and then how the schedule can meet the children’s needs. Joint just means you’re doing it together.
Joint physical custody – which we call shared physical custody – just means that you’re sharing that on a 50-50 basis. And if you have joint legal custody, that means you’re making all of the major decisions together.
It depends on the level of conflict and the issue that is in conflict. If you have a domestic violence situation – especially if there has been violent domestic violence in the home – that’s a very tough scenario for a joint custody arrangement. When I say “joint custody” here, I mean joint legal custody because you’re expecting two people to be able to reach shared decisions. If you have an abusive dynamic or former abusive dynamic, joint custody isn’t going to work.
It depends on the conflict itself. If the conflict is financially related, that wouldn’t necessarily impact a legal custody decision. But if the parents have a fundamental difference in terms of how they practice religion or if one parent believes that the kids should go to private school and one believes that they should stay in public school – or a big issue that has come up a lot recently is whether to get kids vaccinated. That’s an issue that parents have been hotly debating when one parent wants the kids vaccinated and another parent doesn’t. If you have very divergent opinions as to those major issues, then joint legal custody is probably not going to work.
It comes down to showing a history of involvement and being present for the children. But that’s not to say that in the year before a custody trial that you can’t take certain steps to demonstrate that you are ready, able, and willing to have shared custody of your children. When parents are together, each parent takes on certain roles at times – so you might have a parent who is primarily responsible for taking the kids to medical appointments and dental appointments and doing the school stuff. Then the other parent is maybe handling other things – taking the kids to their activities or doing laundry or other work around the house – so each parent had a certain role. When you go through a separation and divorce, things change. Then the parent who wasn’t doing as many of the child-related tasks should start participating equally in those tasks, getting to know the children’s friends, the friends’ parents, and the children’s teachers. It’s really a matter of showing the readiness, the willingness, and the ability to take on that type of shared arrangement.
No, and we’re seeing more and more that dads are getting primary physical custody, and dads are sharing physical custody. It’s becoming less and less of a norm for the moms to have primary physical custody. There certainly are always those circumstances that wind up with mom having a primary custody role. But no longer is it the position of our courts that only moms can play the nurturing role and have the attachment to the child that dads can do it just as easily.
There are several factors, including the age of the children, the sex of the children, and the geographic proximity between the parents. If you have two parents living within a few miles of one another, that makes it a lot easier to have a shared custody arrangement. The parent’s capacity to communicate is another factor. Even though the parents are going through a very difficult time during the separation and divorce process, and they’re not getting along very well, do they ultimately have the capacity to reach shared decisions when all the process is complete and their parenting dispute has been resolved? Do they have the ability to reach shared decisions? That tends to be the most important factor. Generally, the fitness of the parents, the parent’s character. We don’t have a lot of character issues unless you have a parent who has been incarcerated or convicted of a crime or something along those lines. But it is the capacity to communicate, fitness, and the other factors that I mentioned.
It really doesn’t matter whether the parents are married or not, it’s still the same analysis of the factors. Child support is directly related to each party’s income, and deductions for things such as health insurance, private school, education, etc. But it doesn’t necessarily matter whether the parents are married or not as to what ultimately a child support or custody arrangement will be.
No. Once the matter is resolved in Maryland… Well, let me say it differently. The parent could file in another state. Nobody can keep a parent from filing, but that matter would likely be immediately dismissed as soon as the other parent made the court aware that our state has made a determination already. That would prohibit another state from coming in and making a determination when one state has already ruled on the issue.
Yes. Typically, and it depends on the county, but typically the custody issues are either addressed at the time of the divorce or – in Montgomery County, in particular – the court actually bifurcates the issue. The custody issues are resolved in a trial before the divorce trial. There are two separate trials. The majority of the other counties in Maryland will hear the matters together, but custody matters are wrapped up either at the time of the divorce or before the divorce.
This is actually an evolving area of the law, and it can apply to stepparents or even girlfriends, boyfriends, and other adults who are intimately involved in a child’s life. The concept is called being a de facto parent, whether you qualify as a de facto parent, which basically means somebody who’s stepped into the role of a parent. To qualify for that role and to be able to get custody and visitation rights, you do have to obtain consent from both parents. In a situation where one parent is getting divorced and so you’re removing the stepparent, then the issue is did the other parent consent to the stepparent being a de facto parent and playing that role? It depends, and the case law, like I said, is evolving. If you only have one parent and the other biological parent is not in the picture, then it would just be the consent of that one parent. The fact that that parent married this person and brought them into the children’s lives would be evidence demonstrating that the is a de facto parent. It is possible, and adoption isn’t required. It really depends on the role of the stepparent in the children’s lives and whether they have the consent of both parents.
These are really challenging cases because the court cannot prohibit a parent from moving. That would be unconstitutional, but the court can prohibit a parent from moving the children. That would come down to the relationship that’s been established between the children and the non-custodial parent and whether arrangements could be made to have that non-custodial parent be a consistent presence in the children’s lives akin to what he or she had when both parents were living in the same location. It’s not an automatic right to just remove kids from the state. It all depends on whether the parties can reach a resolution to create a different type of schedule for the children to spend time with the other parent, how involved that other parent is. And the circumstances surrounding the move certainly, and whether the parent will be able to establish a great life and connections and relationships for the children in that new location. It’s very fact dependent.
Again, it depends – which I know is my answer for a lot of these questions. A child who is in the age range of 14, 15, 16, 17 would certainly have more of a say as to what an appropriate custody arrangement would be because they are more likely to have what is termed considered judgment. The older the child is, the more that child would be able to participate in the decision as to what’s appropriate for custodial arrangement. A 16-year-old can actually move for his or her emancipation, but that would be from both parents.
There are two types of situations. One is the de facto parent situation that I discussed a little bit earlier where the grandparent has played a role essentially of a parent. Maybe the children were living with that grandparent for a while, or maybe that grandparent was living with the parent, and they were raising the child together. That’s one way. The other way is when the grandparents can prove exceptional circumstances and/or that the biological parent is unfit. Those are situations where maybe the biological parent is incarcerated or has an addiction or is participating in certain activities that children shouldn’t be around. Like I said, addiction, alcohol abuse, that sort of thing. Those are some of the examples of unfitness, and custody and access are always modifiable. Those are situations where if you have a parent who’s suffering from substance abuse issues and the grandparent gets custody at that time, if that parent goes through recovery and makes changes in his or her life, they could then come back and be able to take on a custodial role. So those are the two situations as the de facto parent and when there are exceptional circumstances.
Yes, and it really doesn’t matter who the person is, it’s just has to be someone who has played the role of parent to the children. As I mentioned earlier, it could be a grandparent, a stepparent, an older adult sibling, a family friend, an aunt, an uncle – somebody who has truly stepped in for whatever reason and played the role of a parent. If they meet the qualifications of what they would have to prove to show that they were a de facto parent, they would then be entitled to rights just like another parent would.