Maryland Divorce Lawyer Blog

I recently tried what started off as a fairly typical Maryland custody case that turned into a relocation case four months before the scheduled trial date. The decision still has not been rendered by the Court, but nevertheless thought the situation is one in which many folks find themselves and could relate. The basic sets of facts are as follows: parties meet, relationship of some sort ensued (depends on which party you ask) and a child was born. Parties lived together off and on (again, depending on which party you ask) and ultimately began living in their own residences separate from one another. Eventually, the child would generally spend most weekends and extended blocks of time with one parent and weekdays with the other. Although the weekday parent typically controlled when and how frequently the other parent would see the child. Eventually, the weekday parent filed for custody and child support and other parent filed a Counter-Complaint for Custody. The case moved through the litigation process as most cases do, but four months prior to the trial, the weekday parent gives notice through counsel that she will be relocating to another state, approximately 8.5 hours away. As a side note there was a Consent Protective Order in place (I did not represent my client at the time), whereby a child access schedule was put into place where the parties had joint custody and the Father had access three overnights the first week of the month, two overnights the second weekend of the month, and two overnights the third weekend of the month. The Mother had the remainder of the time.

Clients often ask if their soon to be ex-spouse, ex-spouse or co-parent of their child(ren) will be able to change a custody order after it is entered at their free will whenever they want to? The answer is that the other parent may file with the Court to modify the existing order at anytime. Meeting the two-prong test required to change and/or modify custody is however not an easy task. First, the moving party must show a material change in circumstances. That begs the question, what is a material change in circumstance? There are a number of cases which assist us in defining it, but generally speaking it is one or a combination of the following: a significant change that occurred since the entry of the initial order; something material that was unknown at the time the initial order was passed has since come to light; and/or something since the entry of the Order is adversely impacting or could adversely impact the welfare of the child(ren).

One circumstance that has been ruled a material change in Maryland is the relocation of a parent. Braun v. Headley, 131 Md. App. 588 (2000). When facing relocation of a parent, the court may consider such factors as a potential change in visitation schedule, child’s school change, the moving parent’s reason for the move, and the ability of the parents to both maintain a relationship with the child after the move when deciding whether or not the move will constitute a material change in circumstances. More often than not, a relocation of a parent is a material change in circumstance.

Assuming the parent seeking to modify the existing Order establishes a material change in circumstance and the Court so finds, the second prong of the two prong test is what is in the best interest of the minor child(ren). In deciding what is in the best interest of the child(ren) the court considers a host of factors. Some of those factors include the fitness of the parents, the desires and agreements of the parents, the potential to maintain family relationships, the child’s preference if he or she is at a sufficient age, opportunities affecting the child, the age and health of the child, and the residence of the parents and opportunity for visitation. Montgomery County v. Sanders, 38 Md. App. 406 (1997). It is important to keep in mind that even with a finding of a material change in circumstance, a modification of the custody order still must be determined by the court to be in the child(ren)’s best interest.
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Many clients incorrectly assume that mothers are favored over fathers in a custody case. The truth is that the “tender years doctrine,” has been abolished in all fifty states as it violates constitutional law. This doctrine, which is what many clients are relying on when assuming that a mother may be favored over a father, stated that young children should be placed with their mother unless she was unfit. Since the abolishment of this doctrine in Maryland, neither parent is given preference for custody based on exclusively their gender.

In Maryland, the standard that is used when determining custody of a child is the “best interest standard.” This is a standard in which Judges consider a number of factors such as the parents fitness, relationship of child and parents, children’s current environment, ability to maintain natural family relationships, who has been the primary care giver, wishes of child in some circumstances, any agreement the parents have made, prior abandonment of a child by a parent, the age and health of the child, and many, many other factors to determine what custody arrangement would be in the best interest of the child.

I have been on both sides of a custody battle, having represented both Mom’s and Dad’s and have prevailed in obtaining custody for both genders. Every case is different and has its own nuances, but I am of the opinion, that assuming both parents are fit and absent some extraordinary circumstance such as mental illness, physical /mental abuse, abandonement, and/or manipluation, Courts generally focus on who has been the primary care giver (oftentimes the responsibilities have been shared), stability of the parents and their living situationas and environment, parental and other familial involvement, the ability of each parent to work and communicate with the other like adults on child related issues, and the availability of each parent for the child(ren). Obviously, this is a generalization and each case is different, but I believe those factors hold considerable weight with most Judges. Oftentimes judicial custody determinations will hinge on one particular issue because the parties are otherwise relatively on the same playing field in the other factors. Rest assured however, the tender years doctrine has been abolished and Mothers and Fathers stand on equal legal footing as far as gender is concerned.
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