Children in the Divorce

One of the most difficult and emotional considerations in a divorce are handling children, especially when the children are impressionable and are developing their own identity and psyche. Parents are presumed to want what’s best for their children, but many times parents in a divorce situation might have different opinions about what is best for their children. The court’s ultimate goal is to determine what is in the “best interest” of the parties’ minor children. This is commonly referred to as the “best interest standard.”

There are several factors that may be considered for children’s best interest.  The most important is the “fitness of the parents,” which includes the parent’s mental state, parent’s conduct, and general ability to adequately care for the children.  Other factors include the parent’s reputation and character, the parent’s wishes, the children’s wishes when the children are mature enough to provide rational and logical insight, location of the parents, length of separation, and any voluntary abandonment.

The most commonly disputed aspects are physical custody and child visitation. Legal Custody, which is decision making authority, is also a factor that must be considered in any divorce where the parties have minor children. Finally, considerations including private school education, child care, certain medical treatments, grandparent or other family member access, and other similar issues must be considered.

Child Custody

In Maryland there are two distinct types of child custody: Physical custody and legal custody.

Legal Custody

Legal custody is decision making authority for children. Usually the main factors for legal custody include health, education, and general well-being of the minor child. Important decisions may include child care decisions for young or school-aged children, obtaining school reports or meeting with the children’s teachers and school administrators; choosing your children’s doctors, communicating with those doctors, and making decisions about treatment options for children; enrolling children in sports, extracurricular activities and summer camps; deciding religious affiliations; taking children out of the state or out of the country either for vacation or as a permanent move.

In most cases, parents share decision making authority, or have “joint legal custody.” In granting legal custody, the court will consider how well the parents communicate with one another, the parents’ ability to make healthy decisions for their children, which parent has physical custody of the children, the parents’ mental state, whether there is history of abuse or neglect, and other various applicable considerations. When parents communicate relatively well, each parent has substantial visitation with the children, and there are no other serious issues affecting decision making authority, courts will generally defer towards joint legal custody. This raises the problem of what parents should do if they genuinely disagree about an important decision for their child. Some parents will agree that one parent has “tie-breaking” authority (sometimes, whichever parent has primary physical custody), other parents will agree to consult with a neutral party or mediator, and some parents may defer to their children’s wishes if the children are old enough to comprehend and make some decisions for themselves. There are many ways to resolve such issues and talking with an attorney about your options and how you and your spouse may handle decisions affecting your children is a worthwhile endeavor.

Physical Custody and Visitation

The courts default ‘best interest’ for children is to have a healthy and productive relationship with both of their parents. Therefore, physical custody or visitation is generally granted to both parties, unless good cause is shown why that should not be the case.

Physical custody is defined as where the children stay overnight. Having “primary physical custody” is defined as the child being in that parent’s custody at least 128 overnights per year (35% of all overnights). This parent is referred to as the ‘custodial parent.’ If both parents have ‘custody’ of a child for at least 128 overnights per year, then the parents have “shared physical custody.” This legal term designation is only important for child support calculations, which are discussed below. One common example of shared physical custody is a schedule where the parents alternate weeks with the children.

Even if one parent does not have physical custody, he or she is most likely entitled to visitation. Visitation means scheduled time that one parent can spend with his or her child despite not having been awarded ‘physical custody.’ The most basic form of visitation is supervised visitation, which can either occur at a ‘supervised visitation center’ that are maintained by the counties in Maryland, or in a public setting such as at a specific park or restaurant. Visitation can also be unsupervised, meaning that the parent can (within reason) do whatever he or she likes with the child during his or her scheduled visitation. Often times this type of unsupervised visitation may include overnight weekend visits to the non-custodial parent’s house, but can also include daytime visitation occurring after school until the evening or on a weekend from morning until afternoon.

In cases where the parents communicate well or the child is older and can communicate directly with the parents and make healthy decisions for himself, the non-custodial parent may be granted ‘liberal and reasonable’ visitation – the parent can visit with the child whenever the parents (and sometimes the child too) decide that it is appropriate, and there is no set schedule. Some parties opt for a hybrid schedule where the non-custodial parent has a set schedule to visit with the child (every other weekend for example) but can also arrange to spend time with the child periodically when the parents arrange for it (to have dinner together once a week, or to attend events on the weekend together).

Best Interest Attorney

As should be evident, there is no cut-and-dry formula for child custody and visitation. Sometimes, an attorney will be appointed for the minor children  who will investigate the custody situation and will act as a representative for the children in court.  Usually the fees for the best interest attorney will be split amongst the parties either 50/50 or based on a more equitable division.

Parents that are contemplating divorce or in a custody dispute should consult with an attorney to discuss what factors are important in the physical custody considerations.