How 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.1
1 See MD Law Encyclopedia, Parent and Child § 10; Best v. Best, 93 Md. App. 644, 613 A.2d 1043 (1992)
Do 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.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
Where 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 child1 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.2
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.2 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.
1 Md. Code, Fam. Law § 9.5-201
2 Md. Code, Fam. Law § 9.5-101(h)
3 Md. Code, Fam. Law § 9.5-201(a)(1)
Are 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. You can also select the other state from the drop-down menu to find legal referrals in that state.
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.1
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.2
1 Md. Code, Fam. Law § 9.5-201(a)(2); see § 9.5-207 through 9.5-208
2 Md. Code, Fam. Law § 9.5-204(a)
What 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.
What 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.1
If a judge orders mediation, s/he will choose the mediator. However, the parties can file a request to change the court-designated mediator to another mediator who has the proper qualifications by filing with the court a “Request to Substitute Mediator” within 15 days after service of the order of referral to mediation.2 The judge can order the parents to attend a maximum of four hours in one or two mediation sessions. Upon the recommendation of the mediator, the court may order up to four additional hours if the judge believes there is good cause to do so. If the parties agree, they can extend the mediation beyond these hours.3
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.4
1 MD Rule §§ 9-205; 17-102(g)
2 MD Rule § 9-205(d)
3 MD Rule § 9-205(g)
4 MD Rule § 9-205(b)(2)
Who 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.1
1 MD Rule § 9-205(g)