By Nelson Garcia, Esq., (301) 563-6685
Although losing custody of your child is a heart-wrenching experience, keep in mind that child custody is always modifiable. From the moment of that loss, you should strive to build your case for regaining custody by showing the court you have met the two main legal requirements of (1) Material Change in Circumstances and (2) Best Interest of the Child.
Material Change in Circumstances
This means you must show that there has been a substantial change in circumstances affecting the welfare of the children since the last court order regarding custody. This is the first step you must comply with to “open the door” for the court to hear your case for modification of custody. In other words, if you fail to convince the court such a change has occurred, your case for modification of the existing order will not go forward.
In evaluating how to present this part of your case, you must carefully consider the reasons why custody was taken from you. A judge should be very clear as to why that occurred. Focusing on these reasons will help you better prepare or build your case, such as putting measures in place to show the court that you have made the necessary adjustments and improvements in your life to win back or gain more custody of your children.
For example, if the court has placed any stipulations on your ability to recover custody, go ahead and take steps toward completing those demands. Do not argue over their validity. Fast, thorough compliance will reflect favorably on you in front of the court, especially for a showing of “material changes.”
If your loss of custody was because of a claim of child abuse or neglect, in which the children are in the custody of Child Protective Services and placed with another family member or an unrelated/third party, you will need to show strict compliance with the conditions set by the court. For example, are you required to seek counseling, drug or alcohol treatment, or attend parenting classes? Strict compliance with these programs is critical.
Also, make sure that you fully comply with the visitation/parenting time provided to you. Do nothing to aggravate the situation, and make every effort to be polite and courteous when picking your kids up for visits.
Pay close attention to the actions of the new primary custodian towards the children and for his/her compliance with the terms of custody. The following are just a few reasons that a Maryland court may consider modifying an existing child custody order:
- The emotional or physical stability of a parent with custody changes drastically, such as by evidence of:
- Abuse of drugs or alcohol
- Failure to allow visitation with the other parent as per the custody order
- Physical abuse (if you believe your child is being abused physically or sexually, it is essential to call the police and make a report to the Department of Social Services)
- Substantial emotional instability of the child
- Custodial parent leaves the children with family members or other third parties for substantial amounts of time during his/her custodial time, especially if for no apparent necessity. (Note that if the children are left with you for such times, such could not only be used as a material change but as an admission by that party that you are a fit and proper person to have custody.)
- The children are underachieving academically as compared to when they lived with you, or they are suffering medically (including dental health), and your former spouse/partner has failed to attend to these issues in a meaningful way.
- Parent relocation (if a parent has relocated or has provided notice of plans for relocation requiring child to change schools, reduce time with other parent, siblings, etc.).
Best Interest of the Child
If you establish a material change in circumstances, you must then present convincing evidence to the court that it is now in your children’s best interest for you to have custody. That is, you must prove to the court that you and your home are now the better place for your children.
Pursuant to §8-103 of the Family Law Article, Maryland courts are vested with the power to modify any child custody agreement concerning the “care, custody, education or support of any minor child . . . if the modification would be in the best interests of the child.”
The burden of proof standard for determining the best interests of the children in a child custody modification case is preponderance of the evidence (just enough to tilt the scale).
Once you’ve begun to work with a lawyer and you’ve begun to complete any steps the court has required, ask the judge for an in-home child custody evaluation. This will provide the courts with an up-to-date assessment of your home, which could help you win back custody.
Consider alternative arrangements. You may have wanted full custody originally, but now that you’ve lost custody, ask yourself whether you would consider agreeing to shared custody. If that’s an option for you, work with your ex (or whoever you would be sharing custody with) to explore that possibility.
The Bottom Line
Losing custody doesn’t have to be permanent. Many people have won their custody rights back. It’s not easy, though. If this happens to you, know that there are steps you can take to have the decision reversed and win back custody of your children. In addition, an attorney who has great experience in advising clients in and litigating custody cases will greatly help steer you in the right direction and prepare and present your case in court when that time comes. Please reach out if you need assistance, including compassionate legal guidance regarding a custody or divorce matter.
Contact Nelson Garcia at (301) 563-6685.
About Andalman & Flynn, P.C.: Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The firm represents individuals seeking disability benefits throughout the country and practices family law throughout Maryland and the District of Columbia. The firm focuses on cases that impact the rights of everyone, and are there for clients when responsive legal help is most critical. The firm has provided legal analysis on national and local television and radio, and their attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685