In divorce cases where the separated or soon-to-be-separated couple has children together, one of the most hotly and vehemently contested issues in divorce negotiations or litigation is often custody of the children. The judge’s discretion in a family law case is immensely important, and the standard used in child custody issues is the “Best Interest of the Child” standard. As the name implies, the judge considers several factors regarding the parents and the child in dispute to determine what the best arrangement for the child’s continued well-being would be. While the judge has significant leeway in determining what factors to use for any given case, the following list breaks down some of the most commonly considered factors. None of these factors are inherently dispositive or necessarily more important than any other factor.
- Primary Care Giver – The court may take into consideration the amount of care and support provided to the child by each parent. For example, if one parent buys food for the child, provides transportation to/from school or activities, and pays for clothing or other necessary items significantly more than the other parent, the judge might more favorably view the parent who provides more for the child. A parent who is substantially more financially secure than the other may also have an advantage in maintaining custody.
- Fitness – The court may consider the psychological and physical traits of the parents. For example, if a parent is verbally or physically abusive towards the child or the spouse, the court may understandably be reluctant to give custody to the abusive parent. Prior abandonment or surrender of custody can also be considered evidence against a parent, as can an extended period of separation from the child. Interestingly, while character evidence is generally barred as inadmissible in most types of litigation, it is allowed in domestic disputes since it can be directly dispositive of a parent or guardian’s fitness to maintain custody over a child.
- Agreements by Parents – The court may consider previous agreements made by the parents regarding custody of children, but the court can also always overrule these agreements if it finds the arrangement is not in the best interest of the child.
- Ability to Maintain Relationships/Residences of Parents – The court may also consider the locations of the parents and whether assigning custody may restrict or prevent the child from maintaining attendance at their current school, prevent the child from seeing their friends, or prevent the child from keeping contact with extended family members.
- Child Preference – Though the court generally does not consider the opinions of very young children, it will often take into consideration the wishes of a child 8 to 10 years old or older. Like any other factor, the preference of the child is not dispositive and can be overridden if the judge determines that the child’s preference is not in the child’s best interest.
Though these are the general factors in determining child custody, another set of factors is used when considering a joint custody agreement. These factors include:
- Willingness of parents to share custody;
- Fitness of parents;
- Relationship established between the child and each parent;
- Preference of the child;
- Potential disruption of child’s social and school life;
- Geographic proximity of parental homes;
- Demands of parental employment;
- Age and number of children;
- Sincerity of parents’ request;
- Financial status of the parents;
- Impact on state or federal assistance;
- Benefit to parents.
See Taylor v. Taylor, 508 A.2d 964 (Md. 1986).
Many of the factors used in deciding joint custody agreements are similar to those discussed above, and again, none are necessarily dispositive and all can be assigned different weight by the court in accordance with the child’s best interest.
If you want to know more information about family law in Maryland or have concerns regarding your own current or potential child custody dispute, please call us at (202) 329-6556.