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Know the Laws: Maryland

UPDATED April 19, 2017

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This page provides legal information on custody law in Maryland.  WomensLaw.org strongly recommends that you get in touch with a lawyer or domestic violence organization in your area before proceeding with court action. To find help, please go to the MD Finding a Lawyer page.

 

General information

back to topWhat is custody?

Custody is generally the physical care and supervision of a child (under 18 years of age) and the legal responsibility of the child’s long-term needs. When the court issues a custody order, it will address these two parts of custody:

Physical custody is the physical care and supervision of a child (under 18 years of age).  In other words, it addresses who the child will live with on a day-to-day basis and who will make decisions that come up during that time.*

Legal custody addresses which parent has the right to make long-range plans and decisions for the child's education, religious training, discipline, non-emergency medical care and other matters of major significance to the child’s welfare.**

* Md. Code, Fam. Law § 9.5-101; Taylor v. Taylor, 508 A.2d 964, 967 (Md. 1986)
** The People’s Law Library of Maryland; Taylor v. Taylor, 508 A.2d 964, 967 (Md. 1986)

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back to topWhat are the different types of custody arrangements that can be issued?

According to the The People’s Law Library of Maryland, the following forms of custody exist in MD:

Sole custody is when both legal and physical custody are given to one parent. The child has only one primary residence.

Split custody is easiest to describe in a situation where there are two children and each parent obtains full physical custody over one child.  Some of the considerations that may cause this type of custody arrangement are the age of the children and each child’s preference.

Joint custody is actually broken down into three categories:

  • Joint legal custody is where the parents share care and control of the upbringing of the child, but the child has only one primary residence;
  • In shared physical custody the child has two residences, spending at least 35% of his/her time with one other parent and the rest of the time with the other;
  • Additionally, a person can make his/her own joint custody agreement that is any combination of shared physical and joint legal custody.  One example of this is when there is one residence for the child and the parents rotate living there with the child.*
Note: In Maryland, judges deciding custody do not automatically give preference to either the mother or the father.**

* See The People’s Law Library of Maryland website
** Md. Code, Fam. Law § 5-203(d)(2)

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back to topWhat are some of the advantages and disadvantages of getting a custody order?

There are many reasons people choose not to file for custody.  Some people decide not to get a custody order because they don’t want to get the courts involved.  Some parents make an informal agreement that works well for them.  Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for (and get) more custody or visitation rights than they are comfortable with.

However, getting a custody order from a court can give you certain legal rights.  Getting a custody order can give you:

  • the right to make major decisions about your child and/or
  • the right to residency (to have your child live with you).
However, if you file for custody, the other parent may also request these rights and it may be up to the judge to decide (if the parents can’t come to an agreement).

We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation.  You can find referrals for legal help by clicking on the MD Finding a Lawyer page.

Some people think they should file for custody so they can get child support.  While custody and child support are related, you do not necessarily need a custody order to get child support.   A custody order will not automatically give you child support.  For information on filing for child support, you can contact your local courthouse by going to our MD Courthouse Locations page or talk to a lawyer.

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back to topShould I start a court case to ask for supervised visitation?

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised.  If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).

However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits.  We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure.  Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time -- and if there are no obvious problems, the visits may likely become unsupervised.  Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to MD Finding a Lawyer to seek out legal advice.



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back to topIs there any difference between custody and visitation?

Yes. Custody gives one parent or both parents the right to provide care and supervision for the child, and the right to make long-term decisions for the child.  See What is custody? for more information.

Visitation usually involves timed visits with the child that are either supervised or unsupervised. Supervised visitation is when the parent is only allowed to visit with the child in the company of another person.  Supervised visitation often calls for a restriction of visitation to a particular location and time.  Visitation does not give decision-making responsibility or long-term care of the child.  A parent that does not have custody often has some form of visitation.*  Guidelines for visitation are often included in the official custody order issued by the judge.

* The People’s Law Library of Maryland website; MD Law Encyclopedia, Parent and Child § 17
 

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Who might get custody or visitation

back to topCan a parent who committed domestic violence get custody or visitation?

When making a decision about custody or visitation, a judge will look at evidence of abuse (as defined by the law)* by either parent against:

  • the other parent of the child;
  • the parent’s spouse; or
  • any child living with the parent, including a child other than the child who is the subject of the custody or visitation proceeding.

If the judge believes that a parent has abused any of these people, the judge should decide the custody/visitation order in a way that best protects the child in the custody case and the adult who was abused.**

A parent who has been found guilty of murdering the child's other parent, another child of the parent, or any family member living with either parent or the child is generally not allowed to have custody or visitation of the child (although there may possibly be some exceptions).  However, if the judge thinks it is in the best interest of the child, s/he can order supervised visitation that protects the safety and emotional well-being of the child.***

* Md. Code, Fam. Law §§ 9-101.1(a); § 4-501(b)(1)
** Md. Code, Fam. Law § 9-101.1(b),(c)
*** Md. Code, Fam. Law § 9-101.2

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back to topCan a parent who committed child abuse or neglect get custody or visitation?

Maybe.  If a judge in a custody or visitation case believes that a parent has abused or neglected his/her child, then the judge has to decide if s/he believes that this is likely to happen again if the parent is given custody or visitation.  The judge must specifically determine that there is no likelihood of further child abuse or neglect in order to give custody or unsupervised visitation to the abusive parent.  However, even if the judge doesn’t grant custody or unsupervised visitation, the judge may grant supervised visitation if the safety and emotional well-being of the child can be protected during the visits.*  If you have evidence of abuse to you and/or your child, you (or your lawyer) may show this to the judge at the custody hearing.*

See also Can a parent who committed domestic violence get custody or visitation? for more information about how violence against any child in the household will be treated by the judge.

* Md. Code, Fam. Law, § 9-101

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back to topI am the child's grandparent. Can I get visitation?

Grandparents may be able to ask a judge for "reasonable visitation."  If the judge believes it is in the child's best interest, s/he may grant visitation rights.*  However, if the child’s parent doesn’t want the grandparent to get visitation, the grandparent may have to prove that the parent(s) denying him/her the visitation is unfit or that the child will be harmed in some way if the visitation is denied in order to get visitation.**

The People’s Law Library of Maryland website has additional information on grandparent visitation that you can read here.  For specific advice, please talk to a lawyer. Go to our MD Finding a Lawyer page for legal referrals.
 
* Md. Code, Fam. Law § 9-102
** Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (Ct. of Appeals 2007)

 

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The custody process

back to topHow will the judge make a decision about custody?

When deciding who will have custody, a judge will try to make an arrangement that s/he thinks is in the best interest of your child.  The court will base its decision on many factors.  Some of the things a judge will consider are:

  • The fitness (parenting ability) of the parents;
  • The character and reputation of the parents;
  • The wishes of the parents, and any agreements between them;
  • The potential for keeping “natural family relations;"
  • The preference of the child, when the child is old and mature enough to reasonably give an opinion;
  • Material (financial) opportunities affecting the future life of the child;
  • The age, health, and sex of the child;
  • Where the parents live and the opportunity for visitation;
  • The length of the separation of the parents; and
  • Whether either parent willingly gave up of custody of the child.*
* See MD Law Encyclopedia, Parent and Child § 10; Best v. Best, 93 Md. App. 644, 613 A.2d 1043 (1992)

 

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back to topDo I need a lawyer?

You do not need a lawyer to file for custody. However, it may be difficult for you to file a proper petition and to represent yourself in court without the help of a lawyer. As with all custody issues, it is strongly suggested that you try to get a lawyer to help you, especially if the other parent has a lawyer.  For a list of legal resources, some of which may be able to help for free or low cost, please see our MD Finding a Lawyer page.

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back to topWhere can I file for child custody? (Which state has jurisdiction?)

You can only file for custody in court if that court has the legal ability to take the case.  This is called “jurisdiction.”  Maryland follows a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which determines what state has jurisdiction over custody cases (meaning where you can file for custody).

Under the UCCJEA, you can generally only file for custody in the "home state" of the child* but there are exceptions to this.  See Are there exceptions to the "home state rule?" for more information.

The "home state" is generally the state where the child has lived with a parent (or a person acting as a parent) for at least the past 6 consecutive months.  In the case of a child less than 6 months old, the "home state" is the state where the child has lived since s/he was born. Leaving the state for a short time then coming back does not change anything.**

If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least 6 months.  Until then, the other parent may be able to start a custody case in the state that your children most recently lived in for at least 6 months.**  However, there are some exceptions to this.  Please speak to a lawyer regarding the specifics of your case to find out where to file.

Here are some basic examples:

  • My children lived in Alabama their whole lives. We just moved to Maryland a few weeks ago. In my case, Alabama is my children's "home state." If I want to file for custody right now, I will probably need to file in Alabama.
  • My children lived in Alabama until we moved to Maryland 6 months ago. Because the children have lived in Maryland for 6 months, and there were no prior custody cases in Alabama, Maryland is their "home state." I will likely need to file for custody in Maryland.
  • My children lived in Maryland until they left to live with the other parent in Alabama 2 months ago.  Because they haven't lived in Alabama for 6 months yet, their home state is still Maryland. If I want to file for custody, I can most likely file in Maryland.
* Md. Code, Fam. Law § 9.5-201
** Md. Code, Fam. Law § 9.5-101(h)
*** Md. Code, Fam. Law § 9.5-201(a)(1)

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back to topAre there exceptions to the "home state rule?"

Yes. There are two main exceptions to the home state rule.  Please note that this can be complicated, and we strongly suggest you talk to a lawyer before filing anything -- if there are two states involved, you may want to get advice from a lawyer in each.  Go to our MD Finding a Lawyer page for legal referrals.  if you think this applies to your situation, you may want to talk to a lawyer in both states about this.

First, if there is no home state or if the home state has agreed to let another state have jurisdiction, you may be able to file for custody in another state if:

  • The child and at least one parent (or a person acting as a parent), have significant connections with the state (more than just being in the state); AND
  • There is important evidence in the state about the child's care, protection, training, and personal relationships.*
Second, you may also be able to file for temporary emergency custody in a state other than the home state, if the child is present in the state where you want to file and at least one of the following is true:
  • The child has been abandoned; or
  • Emergency custody is necessary to protect the child because the child, a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.**
* Md. Code, Fam. Law § 9.5-201(a)(2); see § 9.5-207 through 9.5-208
** Md. Code, Fam. Law § 9.5-204(a)

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back to topWhat are the steps for filing for custody?

The steps for filing for custody may vary depending on your particular situation.  Custody matters are often very complicated and if you can hire an attorney to draft the paperwork for you, it might make the process a lot simpler. To find a lawyer or legal aid program in your area, please visit the MD Finding a Lawyer page. However, if you are going to file for custody on your own, you may find the forms you need by going to the Maryland Courts website.

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back to topWhat is mediation? Is it ordered for victims of abuse?

Mediation is a process where both parents work with a qualified neutral person (a mediator) who, without providing legal advice, assists the parents in reaching an agreement  regarding custody and or/ visitation.  A mediator may identify issues and options, assist the parties or their attorneys in exploring what they want/need from a custody order, and, upon request, the mediator can write down terms that the parties agree upon.*

If a judge orders mediation, s/he will choose the mediator.**  The judge can order the parents to attend up to two mediation sessions to start; and up to two more sessions may be ordered if the judge and mediator agree that it is needed.***

If you can show the court that you or your child has been physically or sexually abused, and that mediation would be inappropriate because of this, the court is not supposed to order mediation.****

* MD Rule §§ 9-205; 17-102(d)
** MD Rule § 9-205(b)(1)(B),(b)(3)
*** MD Rule § 9-205(c)(1)
**** MD Rule § 9-205(b)(2)

 

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back to topWho pays for mediation?

The judge can decide how the costs and fees for mediation should be divided between the parents, and the judge can order the parents to pay.  However, the judge may also waive payment all together, which means that no one has to pay.*

* MD Rule § 9-205(g)

 

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After an order is in place

back to topIf a custody order is already in place, how can I get it changed?

A judge may change a custody order under certain circumstances.*  When one parent wants to change an existing custody order, it is his/her burden to show the court why it should be changed.**

The law in Maryland favors keeping the living situation of the child stable, so a judge might not change your custody order unless you can show that something in the current environment is harmful or that your home will be better.**  To do this, you must show:
  • A change in circumstance that may affect the welfare of a child has taken place in your home or the other parent's home; and
  • A new custody and/or visitation arrangement is in the child's "best interest."***
* See Md. Code, Fam. Law § 1-201(b)(4)
** Levitt v. Levitt, 556 A.2d 1162 (Md. 1989), The People’s Law Library of Maryland
*** Wagner v. Wagner, 674 A.2d 1 (Md. Ct. Spec. App. 1996)

 

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back to topCan the child ask the court to change the custody order?

Yes.  If the child is 16 years or older, s/he may file a petition (ask the judge) to change the custody order.  The child does not need a parent or guardian to file the petition.  The judge will hold a hearing and may decide to place the child with the parent s/he requests (but does not have to).*

* Md. Code, Fam. Law § 9-103

 

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back to topCan I change the state where the case is being heard?

This may depend on many factors. See our Changing a final custody order section for more information.

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back to topDo I have to notify the court if I want to move with my child?

In any custody or visitation case, the judge may include a requirement that either party provide advance written notice of at least 90 days to the court, the other party, or both, when the permanent residence of either the parent or the child is going to be relocated (within the state or to another state).*  However, if you can show that this type of written notice would expose the child or either party to abuse (as defined by law) or that there is another good reason not to give the notice, the judge can do away with the notice requirement.*

If the judge orders you to give written notice to the other party, it means that the notice has to be mailed by certified mail, return receipt requested, to the last known address of the other party.*2  Note: If you cannot give the full 90 days’ notice because relocation was necessary due to financial or other extenuating circumstances, the other parent may bring you to court for failing to follow the notice procedures.  However, if you gave the required notice within a reasonable time after learning of the need to relocate, the judge may consider this if the other parent brings you to court for not giving him/her the full 90 days’ notice.*3

If either party files a petition regarding the proposed relocation within 20 days of the written notice, the judge must quickly schedule a hearing.*4

* Md. Code, Fam. Law § 9-106(a)(1)
*1 Md. Code, Fam. Law § 9-106(b)
*2 Md. Code, Fam. Law § 9-106(a)(3)
*3 Md. Code, Fam. Law § 9-106(c)
*4 Md. Code, Fam. Law § 9-106(a)(4)

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back to topCan a parent who does not have custody have access to the child's records?

Yes.  Parents without custody may access the child's medical, dental and educational records unless a judge orders otherwise.*  If you have a good reason to ask that access be denied, you may consider raising this issue in the custody proceeding.

* Md. Code, Fam. Law § 9-104

 

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WomensLaw.org would like to thank Shannon Gaskin, the Managing Attorney at the House of Ruth in Maryland, for her assistance in an original version of this page.

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