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This guide covers the most common questions you will have if faced with a child custody case in Maryland. The answers to some of the questions are a bit more complex. So we tried to give a “short answer” to each question before the longer (and more complete) answer. If the topic is really involved, we link to a separate blog post on our website that explains the issue in greater detail.
You can get the basic information from the short answer, but we do recommend you read the long answer too so you know the details. This stuff isn’t always easy to explain in a few sentences.
This guide was written by Nasheia Conway, a Waldorf family law attorney at Southern Maryland Law - Andrews, Bongar, Gormley & Clagett in Waldorf, Maryland.
Our Best Advice: This guide contains general information about Maryland child custody law as a helpful resource for the public. Simply reading this guide does not create an attorney-client relationship with our law firm.
Reading this guide is no substitute for hiring an attorney. If you have any serious legal issue, you should get personal advice from an attorney who understands the unique facts of your situation.
We hope you will choose us to handle your Maryland child custody case. If not, at least talk to another attorney who knows what they are doing. That is the best advice we can ever give you.
Short answer: Maryland recognizes two types of child custody – physical custody and legal custody.
- Physical custody describes where the child actually resides – who the child lives with.
- Legal custody refers to your rights as a parent to make major decisions concerning your child.
Longer answer: Physical custody usually rests with one parent. Not many couples share physical custody. There is usually one primary physical custodian and the other parent gets visitation.
However, many divorced couples in Maryland share legal custody of their children.
That means the non-custodial parent gets a say in major decisions such as education, health, and life opportunities. The non-custodial parent should be consulted, and their opinion has weight and can be enforced by the courts if necessary.
The number one thing that determines whether a couple get joint legal custody under Maryland law is their ability to communicate with each other and maintain a reasonably civil relationship.
This is a strong reason to be sure you maintain a civil relationship with the other parent, at least enough of one that you can make major life decisions about your child.
If the two parties simply cannot get along at all, the court will make one of them the sole legal custodian of the child. In that situation, the non-custodial parent loses the right to have a legal impact in the child’s life.
Courts in Maryland prefer joint legal custody of the child, and will expect you to work together for your children and their future.
This is a good time to talk generally about remaining civil and reasonable.
It is sometimes the hardest thing in the world to do, especially right now. But small fights now can have huge consequences later.
Remember, no matter how much you may wish to avoid the other parent, you will see them again and have to deal with them if you have children in common. You will be together one day at a graduation, at a wedding, and at other events. How things go now will have a big impact on how you interact later. And you will interact later, like it or not.
We always advise our clients to try and maintain a civil relationship with your spouse at this very emotional time.
Of course, it takes two to tango! If your spouse will not be reasonable, then you have to fight for your rights. But even then, you should always try to stay civil yourself.
If you do have to go to trial, you want the court to know YOU are the reasonable one in the case.
Short answer: Yes, but the court has to approve it – and may reject it or change it.
Longer answer: In Maryland, you and the other parent can come to a reasonable agreement concerning the children, where they live, visitation schedules, and how much child support will be.
Nevertheless, you must be aware of one crucial thing – you cannot ever write those agreements in stone. When it comes to children, the courts in Maryland can and will rewrite any agreement on child custody if they feel it is in the best interests of the child.
This doesn’t mean an agreement is a waste of time. If your agreement is reasonable, and provides for the well being of your children, then a Maryland court is almost certain to rubber stamp it.
But if they think something in there is not in your children’s best interests, they can change it – no matter how formal the agreement was, or how long ago it was made.
Short answer: according to the best interests of the child, as the court sees it.
Longer answer: In Maryland, if you cannot agree with the other parent on issues of child custody and visitation, the court will order it based on the “best interests of the child.”
It is important to note that your interests, or your convenience, are not very important to the court in this analysis. They will strictly look at the case in light of the court’s best guess as to your child’s best interests.
As with all legal issues related to family law in Maryland, it is far better to reach an agreement with your spouse on custody issues. That way, you retain some control of the situation.
Otherwise, some Judge who never met you, and does not know your child, will decide based on the limited evidence you present during a trial. That is an imperfect system, but is the best that can be done if you and the other parent cannot agree yourselves.
There are several factors the Maryland courts will consider in deciding what is in “the best interests of the child,” including:
- The fitness of the parents;
- The character and reputation of the parents;
- The desire of the parents;
- The potential for maintaining normal family relations;
- The preference of the child (if the child is old enough);
- Material opportunities affecting the future of the child;
- The age, health, and gender of the child;
- The residence of the parents and opportunities for visitation;
- The length of separation of the parents from the children;
- The quality of the relationship between the child and the parent; and
- Whether there was a prior voluntary abandonment of the child.
No one factor is more important than the other. They are looked at together and the court ultimately falls back on “the best interests of the child.” This is sort of vague and hard to define, and it is that way on purpose.
Maryland child custody law tries to give the court maximum flexibility to decide the very delicate and important issues surrounding child custody.
Because this is so difficult, Judges and Masters (Masters are like Judges and make most decisions in Family Law cases) develop certain rules they tend to follow when deciding a child custody case.
Your attorney can tell you what the Master or Judge will do in your situation, which can help you decide whether to resolve a custody issue or go to trial.
No.
Contrary to popular belief, there is no legal preference for the mother in deciding who gets custody of the child in Maryland. There may be societal reasons that mothers usually get child custody, but not legal reasons. Gender should theoretically play no role in deciding child custody under the law in Maryland.
Short answer: Yes, but they have an uphill battle in Maryland.
Longer answer: Giving custody to a non-parent isn’t exactly rare, but it isn’t common either. The best interests of the child will control who gets custody of the child. If the court determines that is not the parent, they can order it.
However, the non-parent seeking child custody has the burden of overcoming the legal presumption that a parent is the best choice to have custody of the child.
This is very difficult. But it can be done if you have good reasons to take custody away from the natural parent.
Seek the advice of an attorney if you have this situation.
As of 2017, Maryland now recognizes a concept known as the “de facto parent.”
A de facto parent is a third party that has a right to challenge custody or visitation rights without the need to show parental unfitness or exceptional circumstances. Read our post on de facto parent status to see if this fits your situation.
Short answer: In Maryland, child custody is always subject to change, although it is difficult.
Longer answer: The court will always maintain jurisdiction over children until they are 18, no matter what you and the other parent agree to. The court has the power to make decisions for your child based on the child’s best interests – the same standard referred to earlier.
The burden of showing why custody should be changed is on the parent asking for a change. The person seeking the change will have to show a change in circumstances affecting the child’s best interests.
The law presumes the best interests of the child lie in keeping things the same. To counter that, you have to show a significant change in circumstances that justifies changing custody.
If the child is doing well in the current custody arrangement, custody will normally stay the same.
Maryland law essentially says “if it ain’t broke, don’t fix it.”
What is an appropriate change in circumstances?
The answer is, of course, it depends.
Each child custody case is unique and Maryland law forces the courts to look at each situation individually.There are no hard & fast rules.
The same factors we mentioned earlier will play into the decision. Read them over and see if there is a glaring change in one of them. If you think there might be, you should consult with a Maryland attorney to find out if it is enough to change child custody. You can always try regardless, but you should know your chances of success before starting down that road.
Visitation is the period of time the non-custodial parent gets to spend with their kids alone. It is almost always done on a set schedule, which is either agreed to by the parties or ordered by the courts.
If you have rights to legal visitation, we strongly advise you to get that in writing and maybe even approved by the court.
Short answer: Technically no. In reality, yes.
Longer answer: A court in a Maryland child custody case does have the right to deny a parent visitation if it is in the best interests of the child. However, in reality, this almost never happens.
The court will almost always find that it is in the best interests of the child to see both parents. It will not matter if one parent thinks the other is bad, or inattentive, or curses or drinks in front of the children, etc.
The only thing that will likely deny visitation is evidence of gross physical abuse of a child, and even that is far from certain. All cases are decided on a case by case basis. There is no hard and fast rule.
If visitation with the non-custodial parent is potentially dangerous, a Maryland court is more likely to order supervised visitation. This is much more likely than no visitation at all. Another person will have to be present, or visitation can occur in an agreed upon location like a therapist’s office.
If this is a concern in your child custody case, you should certainly seek the advice of an attorney.
The court will strongly encourage you to work out a visitation schedule yourself. There is a legal preference for a defined visitation schedule in Maryland, but the court will want you to define it.
If you and the other parent cannot agree to a schedule, the court will Order one that may not be convenient or acceptable to you or the other parent.
There are no hard and fast rules, but common visitation schedules include things like:
- Every other weekend
- One overnight during the week
- Dividing major holidays
- Usually a longer period of time during summer vacation and other school breaks
Short answer: Yes.
Longer answer: Grandparents may get visitation. Non-adoptive step-parents have also been granted that right. Requests for someone other than parents to get visitation are rare, but the court can grant it.
However, it is an uphill battle if the parents are against it. Again, the decision will be made as to what is in the best interests of the child. There is no hard and fast rule here.
The court will determine the child’s best interests after a hearing. Your attorney can tell you what the local Magistrate or Judge is likely to do in your specific situation, so you can know whether to pursue this or not.
Short answer: The court will often force you to meet with a trained mediator who will try and get you to settle your case.
Longer answer: An increasingly popular method of settling domestic relations matters is by using mediation. Courts in Maryland love mediation, and often order it in Maryland domestic relations cases.
Mediation involves one or more meetings between the parties and a trained mediator. This is not always a lawyer, but is someone who has received extensive training in mediating disputes among couples.
Even if you think there is no hope of reaching an agreement with your spouse, mediation can sometimes be productive.
The mediator is trained to put the parties in a frame of mind that makes agreement possible. Sometimes the most stubborn person can be made to understand the value of a mediated agreement.
A mediator will play “middle man” between you and your spouse in discussing terms of a possible agreement. If successful, an agreement will be reduced to writing.
You will have to show up for the sessions with the mediator, and you will usually have to pay ½ of the mediator’s fee.
Although you do not need a Maryland child custody attorney to go through mediation, you will find one valuable before and after the process.
You will always need to know what the law says about a certain issue, and what the court is likely to do in your situation. An attorney will tell you if the agreement is fair, compared to what you would likely win in court.
The real answers to these questions depend on the specific facts of the situation. In a guide like this, it is impossible to explain how these general rules will affect you personally. One must know your particular situation. There are always exceptions to these rules, and we cannot possibly cover every issue in this article.
Everyone is more emotional during this time, and it helps to have someone advising you of the best course of action for the long term.
An attorney has seen these cases before, and his or her experience with other cases will help guide decisions in your case. An attorney will also know what the local Judge will do in your situation, and you can decide to go to trial or settle accordingly.
We would never advise anyone to try and handle their own child custody case in Maryland. It isn’t smart, and too much is at stake.
Be sure to get some legal assistance for your child custody case. At the very least, get a consultation with a Maryland child custody attorney for advice. Most attorneys charge a reasonable consultation fee for an hour of their time. That is well worth the money.
If you have a Maryland child custody question, we strongly recommend you call us today for a consultation. We charge $100 for a one-hour initial consultation where we will answer all of your specific questions. These consultations can be in person or by phone. We hope your own situation is as painless as possible, and that you quickly get to the point where you can resolve your family law issues and look to the future. To get ready for your consultation see our post What to Bring to Your First Family Law Consultation.
Short answer: In Maryland, child support is the amount of money one parent must pay the other parent for the health and welfare of the children. It is usually paid out of each paycheck, and is calculated on a monthly basis.
Longer answer: People mistakenly believe child support in Maryland is just a math problem – you put the parent’s income into a formula and get a number as a result. That is not true.
Child support can be a complicated legal matter. A lot of elements go into that formula. Making a mistake on one of the elements could make a big difference in your child support calculation.
If you are not aware of the ingredients that go into calculating child support in Maryland, it could cost you a lot of money in the long run.
Short answer: The state legislature created these to standardize child support across the state.
Longer answer: Since 1990, Maryland has had a law setting child support guidelines and making them mandatory. They standardize the calculation of child support in Maryland child custody cases.
The guidelines are really more like a formula, and they will control the amount of child support in the vast majority of cases that come before the court.
The Maryland child support guidelines calculate each parent’s income, and the percentage attributed to each, and arrive at a certain number in a table created by the legislature. That number is the amount the non-custodial parent must pay monthly.
The paragraph above is a gross oversimplification, however.
“Potential income” could be added if the parent is not making as much as they could. Extraordinary medical expenses could raise the amount of child support. Additional visitation time could affect the calculation.
There are computer programs that can do the math, but figuring out what data to input is the real trick.
Here are just a few of the things you can debate in court:
- You can ask the court to ignore certain income that would usually be included.
- You can ask the court to include certain income that would usually be ignored.
- You can argue that the child has certain extraordinary expenses the court should consider, either to reduce your payment or increase the amount you are asking for.
- You can argue that you already pay certain money directly for the child.
- You can also argue for deviations from the guidelines, either for more or less child support called for in the statute, based on the unique facts of your case.
As you can see, there is a lot to argue about in child support under Maryland law. But no matter what, your argument will always center around those official Maryland Child Support Guidelines. The court will base their decision on them.
The Maryland Child Support Guidelines are a way for every court in every county in Maryland to uniformly calculate an amount of child support.
For more information on Maryland child support see the Maryland Child Support Administration Website.
Short answer: In creating and using the Maryland Child Support Guidelines, the state tied the calculation of child support together with child custody.
Longer answer: What type of custody you have, and how often you see your child, can factor into how much money you pay or get in child support in Maryland.
The first thing to do in calculating child support is to figure out what type of child custody you have with the other party.
The Maryland Child Support Guidelines look specifically at the type of physical child custody the parents have. Parents can either have primary physical custody or joint/shared physical custody. Once that has been established, child support can be calculated.
The Maryland Child Support Guidelines provide two different ways to run the calculations.
If the parents are found to have joint/shared physical child custody, the amount of child support the non-custodial parent pays will be lower. If one parent has primary physical child custody, the amount of support paid is higher.
The reason for this difference in child support is because if one parent has primary physical child custody, it makes them the custodial parent (Parent A). This means the child spends most of their time with them.
The custodial parent is therefore usually the parent that has to pay for everything. If one parent has primary physical child custody, the non-custodial parent (Parent B) would have to balance this out by paying more money.
It may not matter what you call your type of child custody either. The courts in Maryland will look beyond that. One way the court decides whether the parents already have either joint/shared or primary physical custody is by what they have been doing in their daily lives already.
This is what we call the Magic 128.
In order to figure out which calculation to use, a Maryland court looks at the amount of time the child spends with each parent. If no formal child custody determination has been made, the court will look at the visitation schedule being used by the parents.
If the child is spending 128 overnights with the non-custodial parent (Parent B) then the court will use the joint/shared physical child custody calculation.
However, if the court finds that the child is not spending at least 128 overnights with Parent B, then the court will use the primary physical child custody calculation, which will make Parent B’s child support payments higher.
128 overnights is a little more than one-third of the calendar year, which is why this number is magical. If your child spends at least one-third the year with each parent, the courts in Maryland will say you have joint or shared child custody, regardless of what you call it.
If they don’t quite spend that much time, they will call one parent the custodial parent and the other will be non-custodial and have a higher child support payment.
For all of the factors, and the various ways this can play out in court, you should talk to a Maryland child custody or child support lawyer. Each case is different, just as each family is different. Something that might seem normal to you may seem like a disputed issue for the court.
A lawyer can really help you understand what the court sees as red flags, and what they are likely to do with them.
Short answer: The court will take into account many factors when calculating the actual child support payment. Not every factor will apply to your particular situation, and each factor has its own requirements.
We must stress that this is not an easy thing to do on your own. You should at least consult with a Maryland child custoday attorney to discuss the details of these factors before you go into court.
Here are the basic factors the Maryland court will look at:
- Monthly combined income of the parents before taxes
- Payments of child support made by either parent for other children
- Payments of Alimony made to a previous spouse
- Payments for Health Insurance by either parent
- Extra-ordinary medical expenses for the child
- Work-related child-care expenses (day care, etc.)
- Reasonable and necessary educational and transportation expenses
Longer answer: The court will make a decision about any of these issues if you raise them. Once all the factors have been analyzed and considered, the court will use the Maryland Child Support Guidelines to decide on how much support should be paid for the child, and will calculate the percentage each parent is able to contribute to the child’s total support payment.
Each of the different factors must be proven through testimony or documentation.
You must have good evidence that you can present to the court, and the calculations will only reflect what you can prove. So if you claim to pay $5,000 in medical insurance but cannot prove it when you get to court, the court will ignore that expense in their calculation.
In fact, you may lose credibility with the court if it appears you are trying to mislead them. Misleading the court is never a good idea, and may land you in jail. Be sure to have proof of any claims you plan to make if you go into court.
Short answer: In Maryland, a child support order can be modified later if one or both parties have a change in their financial situation.
However, you cannot just go to court every time you or the other parent gets a little more money. Getting a normal raise, or an extra Christmas bonus from your boss, will not necessarily affect your child support order under Maryland law.
And you should be very careful before you try to terminate child support. Read our detailed post here explaining what you need to know before terminating child support.
Longer answer: In order to modify a previously ordered amount of child support in Maryland, there is a hurdle for the person asking for the change. That hurdle is called a Material Change of Circumstances.
This is a specific legal term, which has specific legal meaning. Everyone experiences a change of circumstances from time to time. But only a “material” change of circumstances will be enough to trigger a modification of child support under Maryland law.
There are two requirements for the court in Maryland to find that a change of circumstance is material enough to change child support.
- The change must tie into the actual amount of child support. It must be something the court will consider when using the Child Support Guidelines. This means it has to affect one of those factors listed above.
- The change must be enough of a change to justify a modification.
The court will not allow you to come back every time there is a small change in the amount of child support which should be ordered. A few extra bucks per month may be a lot to you, but the court has to set some barriers to coming back in for a hearing. Otherwise, they would be hopelessly clogged.
Therefore, the change in circumstances must be enough that the child support order is substantially changed.
So how much is enough?
Unfortunately, this is something we cannot tell you precisely in a written guide. It varies for each situation and depends on how all of those factors mentioned above are playing out in your situation at that moment. If you think you may have a change that should affect your child support, at least get a consultation with an attorney.
You may have heard a rule of thumb that says a modification of child support is only available if your support payment will change by 25%. That is a misconception!
That is a guideline used by the Maryland Department of Social Services when they claim a change in support is warranted. It is not contained anywhere in Maryland law and is not binding on a court.
There is no set percentage change, or dollar amount of change, that will trigger a modification of child support in Maryland. The court will do what they believe is the right thing to do and what is in the best interests of the child.
How do you prove your change in circumstances?
You prove it by testimony and/or documentation. The court will not, on its own, modify the amount of child support ordered. The person seeking the change must make an affirmative effort to have the court hear the case, and they have the burden of proving the change is justified.
If you are trying to get a support order changed, the court is going to look to you for proof.
You have the burden of producing good evidence the court will accept and use as the basis for their decision.
If there is any modification of child custody, be aware that the court will look at the child support too. Modifications of child custody often result in a different child support calculation, so be prepared to prove your income and expenses (the factors above) if you are going to court to modify child custody in Maryland.
Short answer: Not really.
Longer answer: In most areas of life, you can make agreements with other people and the court will enforce them. That is not always true if the agreement concerns your children.
The courts in Maryland will always be willing to take a look at issues concerning children in order to determine what is in the best interests of the child. This includes the amount of child support one parent must pay.
The courts in Maryland have made it very clear that a parent cannot bargain away their child support obligation.
You cannot say something like “I’ll pay you X amount of money to never ask for child support.” Even if an agreement like that is made outside of the court, the court has the power to ignore it and set a child support order anyway. So don’t make a deal like that.
However, if the parties are able to come to a reasonable agreement on child support, a Maryland court may be willing to approve it and enforce it.
The court will take a good, hard look at your agreement, to make sure that the agreement is not unfair to either parent, and to make sure it is in the best interests of the child.
But your agreement will never be binding on the court. They must approve it first. If the court has reasons for not accepting the agreement, the parents may have to accept the amount of support calculated under the Maryland Child Support Guidelines instead.
Short answer: They can, but they don’t like to.
Longer answer: Although the Maryland Child Support Guidelines are important, they are not iron clad. The court can deviate from the amount designated in the Maryland Child Support Guidelines.
However, they don’t like to do that and it is sort of frowned upon by the higher state courts. So if a court does deviate from the Maryland Child Support Guidelines, it gives the losing party good ammunition to file an appeal.
In order to deviate from Maryland Child Support Guidelines, the court must explain its decision in detail. It must have very good reasons for doing so.
However, each case is different and a court may find it is right to deviate from the Maryland Child Support Guidelines in your particular case. It all depends on the facts of your particular situation.
You may go into court assuming the child support payment will be X, and come out with something totally different. Under Maryland law, the court has the power to ultimately do what it thinks is in the best interests of the child in any dispute over child custody or child support.
Scary huh?
Not to sound like a broken record, but a Maryland lawyer can help you navigate the specific legal issues in your particular case. At least get a consultation with an attorney before taking action.
Short answer: Most child support is paid through a wage garnishment.
Longer answer: Child support can be paid voluntarily, but in most situations the parent who gets the support payments will insist on a wage garnishment and payment through the Maryland Child Support Enforcement Administration. Click that link to go to the online application.
That is a state agency which is charged with enforcing Maryland child support payments by doing things like garnishing your wages. This way, the payment comes to them without anyone having to remember to write a check and pay the bill.
Expect this to happen if you are required to pay child support in Maryland.
Child support payments are not conditional on visitation. This is something that we hear a lot from both parents.
If you do not use the visitation that has been allowed by the court or you are denied the visitation ordered by the court you cannot, CANNOT, stop paying child support.
It doesn’t matter if you actually see your child, the State of Maryland says you still must support your child.
If you stop paying child support without a court order telling you, then you leave yourself open to a world of trouble.
You could face contempt charges, prison time, and having to pay child support arrears (child support you missed). So, no matter how much visitation you have or how mad you are at the other parent if you are ordered to pay child support, do not stop paying. You are only shooting yourself in the foot if you do.
Many parents find that they absolutely hate paying child support to the other parent.
It is understandable, especially if the other parent does not seem like they are using the money for your child. Believe me, we hear this all the time, and so does the court.
The court will tell you that the money you pay allows the other parent to continue to provide a place for themselves and your child. If they were not able to provide a place for themselves, then the child would be the one to go without clothes, or adequate food, or a home.
So, don’t think of it like paying the other parent, think of it as making sure you are taking care of your child. Even if your ex gets the benefit of the money too, the court is going to only look at what is best for the child.
Don’t shoot the messenger. We know many readers do not want to hear that. We just have to warn you that these arguments will not win in court, and could get you in trouble if you do not pay your child support based on them.
This is complicated stuff. There is no way to get around that fact.
Figuring out how child support in Maryland will be calculated requires being familiar with the Maryland Child Support Guidelines, all the factors that go into those calculations, and being familiar with what the court in your local Maryland jurisdiction is likely to do with your argument when you get there.
However, if you cannot afford to hire a lawyer and decide to go it on your own, do yourself a really big favor: At least get a one-time consultation with a Maryland child custody lawyer who can go over the unique facts of your case, walk you through the details of the child support calculations, and help you decide what to ask for when you get into court.
Most lawyers charge a reasonable flat fee to meet with a client for a consultation. In that meeting, you can ask questions, and the attorney can walk you through the steps you must take to prove your claims about child support.
It is money well spent, and can potentially save you from years of misery and financial hardship if you do this wrong.
We have a ton of other resources for our clients about child custody law & the legal process. Click this link to our Client Resources page for an in depth explanation of everything you need to know.
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