Physical custody is simply that form of custody that pertains to where the child lives. Commonly one party receives primary physical custody and the other receives visitation. In this situation, the child lives most of the time with one party and spends a lesser amount of time with the other. Alternatively, both parties may share joint physical custody. In this situation, the child spends a substantial amount of time living with both parties. No clear definition exists that distinguishes primary and joint physical custody. The most important factor for either party to consider is not whether the particular arrangement is called primary or joint custody, but whether the schedule is practical and in the child’s best interests.

Visitation is a form of physical custody. Visitation is simply physical custody for a short period of time. An order for visitation is enforceable by the police in the same way that an order for custody is. Visitation serves to give children a chance to maintain a strong relationship with both parties. Courts are very willing to grant visitation because the law presumes that children should have a strong relationship with both parties, even after a divorce or separation. A common visitation schedule is alternating weekends from Friday evening to Sunday evening, however, many other visitation schedules are possible depending on the circumstances. Parties commonly receive visitation on holidays and vacations as well.

Most visitation is unsupervised. However, in rare cases, the court may order that visitation be supervised if it finds that the visiting party is an unhealthy influence on the child or may harm the child. During supervised visitation, someone watches the visitation to make sure that nothing inappropriate occurs. If something inappropriate occurs, the supervisor may terminate the visit. Supervised visitation is sometimes difficult to arrange because of the need to find a suitable supervisor.

Legal custody pertains to the right to make significant decisions affecting the education, health, and welfare of a child. Examples of significant decisions include the decision for the child to follow a particular religion, the decision to send the child to private or public school, and the decision for the child to undergo serious medical treatment. Such significant decisions are not the small decisions that must be made every day such as what a child eats or wears to school. Courts consider small decisions to be the responsibility of the party who has the child at the time.

The court can order legal custody in two ways. It can grant to one party sole legal custody, meaning that such party can make significant decisions without any input from the other. Or it can grant to both parties joint legal custody, meaning that they must make such decisions together. Joint legal custody requires that the parties communicate amicably regarding the child. If the parties cannot communicate amicably, the court will likely consider that joint legal custody is impossible. Sometimes the court may order joint legal custody but may give one party tie-break authority, which that party can use if they are unable to reach an agreement.

Pendente lite custody or visitation

Often a party has an immediate need for custody or visitation and cannot wait until the end of a year-long custody case in order to get it. In that situation, the party can ask the court to order pendente lite, or temporary, custody or visitation. “Pendente lite” is a Latin term that means “pending litigation”. Pendente lite custody or visitation covers only the period of time in which the custody case is pending. If a party makes such a request, the court will schedule a short pendente lite custody or visitation hearing in which it will receive limited evidence on such issue.

Emergency custody

Emergency custody is similar to pendente lite custody in the sense that it is temporary. Emergency custody is unique, however, in the sense that the court will hold a hearing on it within a few days of the request and often in the absence of the other party. In order to seek emergency custody, a party must simultaneously seek a modification of custody or an initial order of custody. If granted, the emergency custody order will cover only the short period of time in which the custody case is pending. In order to succeed in a petition for emergency custody, the party making the request must give the other party proper notice of the time and location of the hearing, and that party must show the court that the child is in physical danger or in danger of mental harm while in the care of the other party. Situations in which a court will grant emergency custody are rare.

Best interests of the child

In custody matters, the court must decide custody according to one standard—the best interests of the child. As much as the court may sympathize with a party’s desire to have custody, the court cannot decide custody based solely on that party’s desire. The court must look to the best interests of the child. The court determines the best interests of the child by considering numerous factors. Some of these factors are:

• Fitness of the parents
• Relationship established between the child and parents
• Preference of the child
• Potential disruption of the child’s social and school life
• Geographic proximity of the parents’ homes
• Demands of the parents’ employment
• Age and number of children
• Sincerity of the parent’s requests
• Financial status of the parents
• Benefit to the parents of receiving custody

Preference for mother?

Many people believe that custody law favors mothers, however, this belief is not true. Although some judges may have a bias, Maryland law is clear that no preference exists for granting custody to either mothers or fathers. The law considers both mothers and father to be equally capable of raising children and being good parents. Both parents have equal standing under the law to seek custody.

Modification

When the court establishes custody, it intends that such custody will be permanent for the foreseeable future. Nevertheless, even after custody has been established, custody can be modified under the right circumstances. In order to modify custody, the party seeking to modify custody must prove two things:

• A substantial change in circumstances since the last custody order.
• The child’s best interests are served by changing custody.

Situations in which the court may find a substantial change in circumstances are endless. Some examples are:

• A party moves a long distance away from the other party.
• A party’s employment schedule changes.
• A party loses the ability to financially provide for the child.
• A party becomes too ill to care for the child.
• A party starts to abuse the child.
• A party is convicted of a serious crime.
• A party alienates the child from the other party.
• A party severely neglects the child’s medical, emotional, or educational needs.
• A party recovers from a previous period of alcoholism or drug addiction.
• A party gains a more suitable home for the child.

Modification of custody is usually more difficult than initially establishing custody because the standard that the court must use is more difficult to meet. This higher standard for modifying custody is one reason why it is so important for a party to make sure that he or she does it right the first time by making a strong case when custody is being initially established.

Custody agreements

Parties often try to reach a written agreement regarding custody instead of allowing the court to decide it. Doing so has numerous advantages. It allows the parties to avoid the risk that the court will order custody or visitation in a way that the parties do not want. It also allows the parties to save the time and expense associated with litigating their custody dispute all the way to trial. The court has the authority to disregard a written agreement on custody or visitation if it finds that the agreement is not in the child’s best interests, nevertheless, the court routinely enforces such agreements. An attorney can be extremely valuable in the negotiation and drafting of such an agreement.

Discovery

In any case involving child custody, both parties have the right to conduct discovery. Discovery is the process of compelling the other party to provide information that may help one’s case. Discovery can occur in several different ways, including with interrogatories, requests for documents, and depositions. Discovery can also include obtaining documents from outside sources like financial institutions, schools, and daycare centers. Discovery can sometimes uncover information that the other party is trying to hide. In cases involving child custody, discovery is extremely important because a lot of detailed information is required in order to make a persuasive case to the court.

Contempt of court

When the court orders child custody and one party fails to follow it, then, in order to enforce the custody order, the other party may file a petition for contempt of court. Contempt of court is a finding that a party was court ordered to do something and failed to do it. When the court orders that a party is in contempt for failing to pay child custody, it will continue to hold them in contempt until they “purge” the contempt. In addition to requiring that the person purge the contempt, the court may also impose other penalties. Such penalties may include providing make-up time with the child and paying the other party’s attorney fees.