What 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.
What are the steps for filing for custody?
Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often times, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or your fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.
If you decide to file in court for custody, the process usually looks similar to this:
1. File for custody. You may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:
- If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
- If you are a married parent who is not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
- If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.
2. Prepare for the custody process
The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence on our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.
During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.
3. Prepare for trial
There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and to cross-examine the other party to help the judge make a decision.
If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:
- communications between the parents can only be in writing;
- all communications can only be related to the child; and
- a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.
You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child as to avoid future conflicts.
4. Options if you lose the custody case
There could be a couple of options that are filed immediately after the judge makes the custody order:
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due a judge’s error.
A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. If you are already divorced, a petition for a change in custody can be filed in the county where the divorce was issued.
To find out more about how the process works in your area, please contact a lawyer. Please visit our MD Finding a Lawyer page to find legal help in your area. You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, child support, and moving out of state with your child.
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)
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)
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.