Probably no other single issue in family law is so emotional and difficult as dealing with the children. Where will they live and when will they see the other parent? Who will make medical, educational and long range decisions? How often can we speak on the phone to them? These issues of custody and visitation evoke a difficult series of problems.
Maryland law breaks down these issues into two separate parts – legal custody and physical or residential custody. But both are governed by an overarching principal – whatever is done should be in the best interests of the children.
Legal Custody. A line of Maryland cases make clear that the decision-making process involved in rearing a child is a separate issue from where that child lives. The so called ‘legal custody’ question is simple – who will make major decisions regarding the minor children. Starting with a presumption that each parent should have an equal say, most courts look to ‘joint’ legal custody as the best interests of the child barring other circumstances. In other words, although separated or divorced, the parents will be expected to consult with each other and make decisions.
Of course, there are exceptions. The Courts recognize that some times one parent or the other is impaired and cannot be counted on to make good decisions. Other times, the relationship of the parents is so strained or marred (maybe by violence or other things) that it is not realistic to ask them to share any responsibilities, let alone such an important one.
Residential Custody. Again, as with legal custody, deciding where a child should live is a difficult task for a court, but one in which they must be guided by the best interests of the child. The number of arrangements that are out there are too numerous to count – week on and week off, every other weekend, all school year with one parent and all holidays with another, etc… In other words, there is no “normal” or standard practice, but a variety of practices designed to fit in with the child’s world.
Again, there is a presumption that both parents should remain involved so most courts will try to accommodate a large amount of time and frequency of time with the non-residential parent. That is more difficult when the parties are geographically far apart and much easier when the parties live close by each other.