How Courts Determine Who Gets Custody of the Kids
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How Courts Determine Who Gets Custody of the Kids

Aug 13, 2019 | Child Custody, Child Support, Divorce Law, Master Separation Agreements, Parenting Plans

By: Nelson Garcia, Attorney at Law

Two small children playing

In any situation where there is a separation of the parents, the question of child custody becomes vitally important. There are two types of custody in Maryland: physical custody and legal custody. Physical custody involves spending time with the child and making decisions about his or her everyday needs. Legal custody involves the right to make long-term plans and decisions for the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning the child’s welfare.

Child custody is often complicated and many factors can come into play. The court may award sole or shared physical custody and sole or joint legal custody, including that it may and often does award joint legal custody while awarding to one party sole physical custody. Although shared physical and sole legal custody may also be awarded, it’s rarely the case. In joint legal custody, the parents work together to share care and control of the upbringing of the child, even if the child has only one primary residence. Additionally, one parent may be given “tie-breaking” authority (the final word in cases of disagreement), or each parent may have certain areas of decision-making authority.

In Maryland, child custody is determined according to “The Best Interest of the Child” standard. In determining the “best interest” of the child, and invariably which of the above forms/combinations of physical and legal custody would be in the child’s best interest, the Court must look at various factors. Those factors include, but are not limited to, the following:

  • Fitness of parents;
  • Character and reputation of the parties;
  • Requests of each parent and the sincerity of the requests;
  • Any agreements between the parties;
  • Willingness of parties to share custody;
  • Each party’s ability to maintain the child’s relationship with the other parent, other family members and others who may affect the child’s best interests;
  • The age and number of children each parent has in the household;
  • Preference of the child, when child is of sufficient age;
  • Capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare (Note: This is clearly the most important factor in the determination of whether an award of joint legal custody is appropriate);
  • Geographic proximity of the parents’ residences and opportunity for time with each parent;
  • Ability of each party to maintain a stable and appropriate home for the child;
  • Financial status of the parties;
  • Demands of parental employment and opportunities for time with the child;
  • Age, health, and sex of the child;
  • Relationship established between the child and each parent;
  • Length of the separation of the parents;
  • Whether there was a prior voluntary abandonment or surrender of custody of the child;
  • Potential disruption of child’s social and school life;
  • Any impact on state or federal assistance resources;
  • Benefit to either parent of award of joint physical custody and how that will enable the parent to bestow more benefit upon the child;
  • Any other consideration the court determines is relevant to the best interest of the child.

You should also keep in mind that in determining whether joint custody is appropriate in a given case, the court must consider all other circumstances that reasonably relate to the issue. Therefore, it’s incumbent upon you to address all of the factors applicable to your case. Although no single factor is most important, you should emphasize those that are mostly in your favor and, of course stressing the “best interest of the child.”

The following tidbits are also important to keep in mind in any child custody matter:

  • Of primary concern to the court and relevant to multiple of the above factors are.
  • Who is the person who takes care of the child? Who feeds the child, shops for their clothes, gets them up for school, bathes them, and arranges day care? Who does the child turn to when they get hurt?
  • Is there evidence of abuse by a party against the child, other parent or any other child residing within the party’s household?

Regarding Preference of the Child: A minor child who is 16 years old or older will usually have his/her desire as to whom should have custody honored, unless shown by the other parent to not be in the child’s best interest. In-fact, a 16-year-old may petition the court, on their own, to seek to change an existing custody order. Though it is rare, the court will hear from a child under seven years of age, and a child as young as five or six years of age may be heard. The child’s maturity, and whether the child can tell the truth from fiction, will guide the decision whether a child may be heard. A child of at least 10 or 12 years of age is certainly entitled to have their opinions heard and given weight in legal proceedings about custody. The judge may choose to interview the child outside the presence of the parents. In addition, the court may appoint a best interests attorney to help it decide custody issues.

  • In order for physical custody to be shared, both parties have at least a minimum of 128 overnight visitations (or 35% of the year) and both contribute to the expenses of the child in addition to any award of child support.
  • The law does not favor either the mother or father.
  • While grandparents and others may seek custody, the presumption in favor of the natural parents can make it difficult.
  • Custody and visitation arrangements are never permanent. As situations change, a parent can always petition the court to modify a court order.


Types of Court Ordered Custody:

  • Temporary Custody – Temporary custody is also called pendente lite, meaning “pending the litigation.” A Pendente Lite order is issued at the beginning of a case and is often used to “preserve the status quo.” It’s important to remember that these Pendente Lite child custody orders are temporary and remain in effect until the actual custody trial and must be requested in your initial complaint.
  • Final Custody Order – issued at the final trial (custody in certain courts like Montgomery County is separated/set separately in a divorce case from the merits or final trial on the property/divorce issues).

One of the most rewarding aspects of being a Family Law Attorney is educating my clients about how to best present their case, whether for settlement or trial. But although the contested custody process can be tough, it doesn’t always have to involve stressful, expensive litigation and the overwhelming majority of my custody cases settle. Whether children are minors or adults, children benefit when their parents can settle their differences.

I know how complex and sensitive matters involving divorce and children can be. If you have questions or need compassionate legal guidance about a child custody matter, please contact me today.

About Andalman & Flynn, P.C.



Andalman & Flynn, P.C. serves clients throughout Maryland and the District of Columbia, offering compassionate, quality service and winning representation across a broad range of legal areas. With a concentration on disability benefits law and family law, the firm focuses on cases that impact the rights of everyone, and they are there for clients when responsive legal help is most critical. For more information about Andalman & Flynn, please visit, or call 301.563.6685.