Resolving custody and visitation is the single most important issue in a or by a judge after trial. The overriding concern of the parents must be, and by a judge will be, what is in the child(ren)’s best interests. A parent must never evaluate their case by what is in their own best interests. Any attempt to do so will harm that parent’s case.
Custody
In a divorce “custody” is composed of two separate concepts. They are physical custody (i.e. where a child spends his/her overnights and legal custody (i.e. the authority to make decisions effecting a child’s welfare. There are 2 times during a litigated case when custody is at issue. There is the temporary (i.e. pendente lite- pron. “pen-den-tay lee-tay”) custody which is often granted relatively soon after a complaint for custody is filed with the court and served on the opposing party. Later in the case a merits (i.e. final) determination will be made by the court establishing custody from that time forward unless or until modified by agreement of the parties or further court order. Modifications of custody are only made if a party can prove what is known as a “material change in circumstances”. That being said, pendente lite custody can also be modified based upon a similar proof being made to the court. Although pursuing such a modification is not commonly done. Joint legal custody can be held by one parent or by both of them. Parents can agree to be “joint legal custodians” of their child(ren). In the event parties litigate the issue of joint legal custody, courts are often inclined to award joint legal custody. However, that is not something either party can count on. A significant factual issue the parties, and a judge, will consider in deciding if parents should have joint legal custody is whether they have in the past been able to successfully resolve their differences of opinion about issues concerning their child(ren)’s welfare. It is important to note that a parent who was not very involved in their child’s life prior to separation, but who becomes an involved parent after separation, is often considered by a judge to be a contender for sole or joint legal custody. Typically that is because in most cases children require the involvement of both parents for healthy development. In the event a party can show they have become involved, or more involved, in their children’s lives a judge will certainly recognize and consider that change, which may favor such a person in their case for physical and/or legal custody. Obviously the overriding concern is whether the parent who has taken a more active role in their child’s life will continue to do so once custody is determined by agreement or court order.
Visitation a/k/a Access
Access is determined by a judge when custody is ordered. As in custody litigation there are pendente lite and merits access orders entered by the court. There are common access arrangements. However, the parents must consider, and a judge will consider, what access schedule is in a particular child’s best interests. Parents should not consider what is in their own best interests in developing an access schedule. A judge will not give much weight to such a consideration at trial.
Child Support
Child support for parents whose joint annual incomes (including income from nearly all sources for each of them) are less than $120,000 per year, is determined by a chart set out in a Maryland statute which can be found at Annotated Code of Maryland, Family Law Section 12-204. Software is available online which incorporates the chart which calculates the amount of support payable by one parent to the other. It is advisable to have an attorney utilize either the software or and/or determine for a parent what the support figure may be based on an analysis of the statute itself. In the event the parents incomes exceed $120,000 per year, child support is determined based upon the parties’ incomes, the actual expenses incurred on behalf of a child and those which are in the child’s best interests or history. If the parties agree, they can use software which is available to extrapolate the amount of child support when the parties earn over $120,000 per year. An attorney should be consulted in order to evaluate a case in an effort to determine what the amount of child support may be based on the particular set of facts. A concept know as “shared custody” exists only when used in the context of child support and NOT physical custody. Shared custody exists when one parent has a child with him/her for at least 35% of the overnights each year. In that situation, child support payable by one spouse to an other decreases substantially. It is not uncommon for a parent to seek 35% or more of the overnights in order to reduce their child support obligation to the other parent. Frequently, a parent considering this tactic overlooks the fact that actually having a child reside with them is oftentimes a great deal more expensive than their child support obligation would be without shared custody.
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