PHYSICAL CUSTODY, LEGAL CUSTODY, SOLE V. SHARED, CUSTODY LAWS IN MARYLAND

PHYSICAL CUSTODY, LEGAL CUSTODY, SOLE V. SHARED, CUSTODY LAWS IN MARYLAND

If you choose to do this, you and the other parent should be as specific as you can to avoid future conflicts. You should ask yourself questions like these:
Who has legal custody?
Which holiday does the child spend with you?
What time and where may the other parent pick the child up?
What time should the child be returned home?
What is the procedure to follow if either of you are running late and won’t be there on time?
How much notice should you be given if they are planning a vacation?
How far away may the other spouse move?
What you might think you can figure out as you go along could become a bitter disagreement later. The stipulations should state everything that you have agreed upon. You should not rely on verbal promises. If you both agreed on it, write it down (no matter how trivial it may seem now). Your agreement should be included with your Complaint for Custody (DR 4), Complaint for Visitation (DR 5) or Complaint for Divorce (DR 20 or 21).
Additionally, you should be sure to read this full section before proceeding in order to avoid having your stipulation and consent order ignored by the court or giving away rights of which you were unaware.

Unmarried Parents
If the parents are unmarried, the child is the child of his/her mother. In order for the father to claim rights to the child (including rights to custody or visitation), paternity must be admitted or established in court. For more information on unmarried people who live together, see the section on Unmarried Cohabitants.
A father can establish paternity by:
A court determination of paternity;
Acknowledging paternity in writing;
Telling others that the child is his;
Or by marrying the mother and then acknowledging himself as the father, either in writing or orally.
Once paternity is established, neither mother nor father is given a preference based solely on their gender. The Domestic Relations forms do not cover paternity actions.
You can read more about establishing paternity in the section on Paternity.

Incarcerated Parents
Maryland courts will generally not award custody or unsupervised visitation to parents who have been found guilty of first or second degree murder of:
The other parent,
Another child of the parent,
Or any family member residing in the household of either parent.
Read the Law: Md.Code, Family Law § 9-101.2

What if we disagree about custody and visitation?
If you and your spouse are having trouble reaching an agreement, you should consider mediation. A mediator specializes in helping people reach an agreement that is fair and will last. The sessions are confidential. A mediator’s role may be limited to custody. You may also ask to cover other issues such as marital property if you choose. Mediation is not appropriate in cases where there is a genuine issue of physical or sexual abuse of the child or one of the parties. It is also important to get a legal advisor for this process. The mediator’s role is not to take sides, but to bring the two sides together. Additionally, if the mediator is not an attorney, he/she may be unaware of some specific legal issues.

Court Ordered Mediation
The court has the power to order you and the other side to go to mediation. See Md. Rule 9-205
This is true whether
Your case is just starting;
You are requesting modification of an existing order; or
You are filing a contempt action.
You should be aware, however, that if mediation is ordered by the court at the initial proceeding it will most likely prolong the legal process by stopping all other actions until the mediation is complete. The court will initially order two sessions. However, a mediator may recommend that the court order two additional sessions. You may decide to continue the mediation without the court ordering it. The court also has the power to order one or both parties to pay for the mediation.

When the Custody Order Agreement is Violated
People go into courthouses everyday telling clerks that the parent has not returned the child at the scheduled time following visitation and they don’t know what to do. When a custody order is violated the law requires the custodial parent/lawful custodian to first demand the return of the child.
If the abducting parent remained within the state, it can be a misdemeanor. The person can be fined $25 or imprisoned for up to 30 days. If the abducting parent crosses the state line, it can be a felony. The person can be fined $250 -$1000 and/or imprisoned 30 days to 1 year. If the child has actually been stolen by the other parent you should report this to your local police department immediately. The FBI can be called in to find the fugitive parent and the child as well.
The only exception to this rule is when the child is in clear and present danger (the victim of abuse or abandonment) requiring the non-custodial parent to save them. The non-custodial parent must be ready to prove this clear and present danger and they are required by Maryland law to file a petition within 96 hours. In that event, both parents will need a lawyer.
Read the Law: Md. Code, Family Law §§ 9-304, 9-305, 9-306, 9-307

Modification of Custody
When a parent seeks to have the custody order changed, it is his/her burden to show the court why it should be changed. The court follows the notion of, “if it isn’t broke, don’t fix it.” This is based on the idea that stability is best for the child unless you can show that there is something in the environment that will harm the well being of the child. You need to show a substantial change of circumstances. Then, you need to show it’s in the child’s best interests. You will have to show that your home will be better than the home of the custodial parent (not just as good). To do this you must show that there has been a substantial change in circumstances and that it is in the child’s best interests to make the change you are proposing. If the two homes are thought to be equal, then custody will stay as it is. Remember, a temporary or pendente lite custody order is not a final order. You would not be required to show a substantial change in circumstances to have temporary custody changed in the permanent custody order.
A child at least 16 years of age can seek a change in custody on his/her own. However, it will be the minor’s burden to prove that a change of custody would be in his/her best interests at this time.
Read the Law: Md. Code, Family Law § 9-103
The court that made the original custody and visitation order retains jurisdiction to decide modification unless the parties and child no longer have close ties to the court and the court surrenders its jurisdiction. However, the court with original jurisdiction may refuse to hear the custody case if a child has been wrongfully taken from another state or taken without the consent of the person entitled to custody.

Taxes
Usually the parent with custody can claim the exemption for the child. However, the parents may agree to claim the child exemption on alternate years. In that case, the parent with custody needs to sign IRS Form 8332, Release of Claim to Exemption. Whether or not you are taking the exemption for the child, you may still file as “head of household.”

Other Issues
Can a child have a say in a custody decision?
Courts will sometimes listen to the wishes of older children. This does NOT mean having your child testify in court.Courts rarely take into account the wishes of very young children. Children who are 16 years or older may petition the court themselves for a change in custody.
Read the Law: Md. Code, Family Law § 9-103

When do grandparents or other relatives have custody or visitation rights?
Generally, the natural parents will have a presumptive right to custody. Only in cases where the parents are found to be unfit, or there are exceptional circumstances, will third parties be granted custody. At any time after a divorce, grandparents may petition the court for visitation rights. See the People’s Law article on Visitation and Custody Rights for Non-Parents.
Read the Law: Md. Code, Family Law § 9-102

What happens if the non-custodial parent refuses to return the child to the parent with custody?
If a child is under 16 years of age, it is unlawful to keep that child for more than 48 hours within the state of Maryland, or remove the child from the state of Maryland for more than 48 hours, after the lawful custodian has demanded the child’s return.
Read the Law: Md. Code, Family Law § 9-304

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