Custody / Child Support
If you have children and are divorcing or separating from the other parent, you may have questions about custody and child support determinations in Maryland. Read below to get some information about how Maryland Courts make custody and child support determinations. For information about other issues in divorce see our Divorce page. If you have serious custody or child support issues that need to be resolved, fill out our contact form and speak to an attorney who can help.
Custody and Visitation
- Q: What is the difference between legal custody and physical custody?
- A: Physical custody of a minor child refers to where the child will reside and a parent’s right to care for the child and make day to day decisions when the child is physically with that parent. Physical custody is usually discussed in terms of which parent has primary physical custody, this would be the parent that the child resides with most of the time, while spending only specified visitation time with the other parent. An ‘every other weekend’ arrangement is a common example of this. Regardless of what terms are used, a court can order physical custody of a minor child is whatever time arrangement it finds is in the best interests of the child. Aside from the difference in time spent with the child, the number of overnights spent with each parent can significantly affect the calculation of child support payments.
Legal custody only refers to a parent’s right to make decisions on behalf of the minor child(ren) with respect to education, religious training, and non-emergency medical care. Legal custody can be sole or joint and is not dependent on the physical custody arrangement. Sole legal custody means that one parent has the ability to make major decisions for the child without the participation of the other parent. Joint legal custody is more likely to be granted and allows both parents to participate in making major decisions regarding the welfare of the minor child(ren).
- Q: How will the Court decide who should have physical and legal custody of my child(ren)?
- A: The Court must consider a long list of factors when making a custody determination. The standard for this decision is that the Court must do what it finds is in the best interests of the minor child(ren) based on the evidence presented at the hearing or trial. Some of the factors are listed below.
- Fitness of the parents
- Any agreements between the parties
- Preference of the child, if the child is of sufficient age and capacity to form a rational judgment
- Material opportunities affecting the future life of the child
- Allegations of abuse
- Grounds for divorce that may have affected the child
- The residences of the parents and opportunities for visitation
- Ability of the parents to communicate and make decisions together
- Potential disruption of the child social or school life
- Demands of parental employment
- Age and number of children
- The financial status of each parent
- Q: Can I stop my spouse from moving away with our children?
- A: If your spouse moves out of state with your children, or is planning to do so while your divorce is pending, you may be able to ask the court for an emergency, or an expedited hearing at which you could request that the court grant you physical custody of your children or bar your spouse from moving out of state with the children until the final hearing in your case at which custody would be decided.
If your spouse moves out of state after you are divorced, this qualifies as a material change in circumstance which allows you to request that the Court change custody and/or visitation based on that change.
- Q:If I move away will I lose custody?
- A: Moving out of state after a divorce puts the custody determination back in play. Moving far away from the non-custodial parent almost always constitutes a material change in circumstance that allows your ex-spouse to ask the court to change custody or visitation. That being said, a change in custody is certainly not automatic. The Court must look at the change in circumstance and decide based on that change what is now in the best interests of the child. Often times custodial parents must move in order to further a career or take advantage of a better network of support. The determination will be based on the unique facts of your case and the evidence before the court.
- Q: I make more money than my spouse and I have custody of the children, will I still get child support?
- A: Yes. Child support represents the right of each child to be supported by both of his/her parents. If you are the custodial parent, the other parent has an obligation to your minor children to pay some percentage of his or her income for the support of the children. In Maryland child support is calculated to determine what share of each parties’ income the minor children are entitled to. The Maryland Child Support Guidelines take into account each parties’ gross income, work related child care expenses, child support paid for other children, and the cost of health insurance. Other factors can be included in the calculation but only in special circumstances.
- Q: My spouse left me and the children and hasn’t paid child support, can the child support be backdated?
- A: Yes. The court can award child support to be paid retroactive to the date that you filed your request for child support. If, for example, there is no existing order for child support and your spouse has not paid any child support for two years, but you only filed your complaint asking for child support one year ago, the court can only award child support retroactive for one year.
- Q: How is child support calculated?
- A: Child support is calculated by determining the combined income of the parties and calculating how much the child is entitled to for support from both parents in total. The formula takes into consideration the cost of work related child care, health insurance and child support paid for children of other relationships. The total support due to the child is then divided between the parties proportionately based on each parties’ share of the total income. The non-custodial parent is ordered to pay their share to the custodial parent for the support of the minor child(ren).
- Q: What if the other parent doesn’t pay?
- A: If the other parent is under a Court Order to pay child support and does not pay, you or your attorney can file a petition for contempt, in effect asking the Court to find that the other parent has knowingly and intentionally violated a court order and to award you appropriate relief. Relief for non-payment of child support can range from an order to pay past due amounts in addition to current support, to incarceration. Though incarceration can be ordered in extreme cases, it is not frequently ordered, because it generally eliminates the non-paying parent’s ability to work thereby precluding that party from paying child support owed.