PROVIDING HELPFUL RESOURCES FOR YOUR SEPARATION OR DIVORCE
   IN MONTGOMERY OR FREDERICK COUNTY, MARYLAND

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CUSTODY and USE AND POSSESSION

The Court has the power to make custody decisions regarding children involved in a divorce case, including CUSTODY, VISITATION and USE AND POSSESSION of the family home or personal property. At any time, the Court can set aside or modify custody orders based on a change in circumstances.

CUSTODY and VISITATION

There are two (2) types of custody. (1) LEGAL CUSTODY, which is the power to make decisions affecting the welfare of the children, including health, education or religion; (2) PHYSICAL/RESIDENTIAL CUSTODY, which is where the child primarily lives.

The Court usually orders one of the following CUSTODY ARRANGEMENTS:

SOLE LEGAL and PHYSICAL CUSTODY: One parent alone has legal and physical custody of the children. She/he has the right to makes all decisions affecting the welfare of the children. Visitation may be reserved to the other parent.

JOINT LEGAL CUSTODY and PRIMARY PHYSICAL CUSTODY: Both parents together make the major decisions concerning the children. Neither parent has the right to make major decisions for the children alone. The children live the majority of the time with one parent.

JOINT LEGAL and SHARED PHYSICAL CUSTODY: Both parents together make the major decisions concerning the children. Neither parent has the right to make these decisions alone. The children spend substantial, although not necessarily equal, time with each parent (at least 35% of the overnights for each parent);

SPLIT CUSTODY: Although extremely rare, the court has the authority to award custody of one or more of the children to one parent, while awarding custody of another child or children to the other parent.

FACTORS IN DETERMINING RESIDENTIAL CUSTODY: Residential custody is awarded based on the “best interests” of the children. The following are some of the factors the Court will consider:

The fitness of the parties

The character and reputation of the parties

The desire of the natural parents and the content of any agreement between them

The potential to maintain natural family relations

The child’s preference, when the child is old enough and has the capacity to form a rational judgment

Any material opportunities affecting the future life of the child

The age, health and sex of the child (however, there is no maternal preference for custody determinations, and recent case law suggests that the sex of the child is now irrelevant)

The suitability of the residences of the parents and whether the non-custodial parent will have adequate opportunities for visitation

How long the child has been separated from a natural parent who is seeking custody

The effect of any prior voluntary abandonment or surrender of custody of the child

Whether the status quo will injure the child before trial

Other relevant factors

FACTORS IN DETERMINING LEGAL CUSTODY: Legal custody is awarded based on the “best interests” of the children. The following are some of the factors the Court will consider:

Capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare and a finding of a strong potential for such conduct in the future

Willingness of parents to share custody

Psychological and physical fitness of the parents

Relationship established between the child and each parent

Preference of the child

Potential disruption of child’s social and school life

Geographic proximity of parental homes

Demands of parental employment

Age and number of children

Sincerity of parents’ request

Financial status of parents

Impact on state or federal assistance

Benefit to parents

Other relevant factors

GRANDPARENT VISITATION: If a grandparent of the child petitions the court, the court may grant visitation rights if it is in the best interests of the child. Recent case law suggests that such visitation rights should not be granted in the case of an intact family, and should only be granted where a divorce has occurred or where a parent of the child at issue has died, and it is the deceased parent’s family that is seeking visitation. For more information about Grandparent Rights, see Grandparent Rights.

PARENT COORDINATION: Parent Coordination is a relatively new alternative for the court to consider in contested custody cases. A Parent Coordinator is typically a mental health professional who is appointed by consent of the parties or by court order to work with parents to help facilitate joint decision-making regarding child-related issues after a custody order has been entered. For more information, see Parent Coordination.

USE AND POSSESSION

FAMILY HOME: In order to allow children to live in their home and the community, the Court may allow the custodial parent to remain in the family home for a period of time, under the following conditions:

(a) The home must have been the principal residence of the parties used when they lived together

(b) The home must be owned or leased by at least on of the spouses at the time the use an possession order is entered.

(c) The home must be used by a spouse and any minor child of the parties, NOT STEPCHILDREN.

(d) It is awarded only to the parent who has custody of at least one minor child.

PERSONAL PROPERTY: The custodial parent may also be granted exclusive use and possession of family use personal property, such as a vehicle or home furnishings, under the following conditions:

(a) Property acquired during the marriage of the parties

(b) Property owned by either or both spouses at the time such an order is passes

(c) Property that is used primarily for family purposes as distinguished from uses that benefit only an individual spouse

LIMITATIONS ON USE AND POSSESSION:

(a) May only be awarded on a temporary basis (pendente lite) OR for s to three (3) years from the date of divorce (absent an agreement of the parties to the contrary)

(b) Does not apply to property acquired before marriage, by inheritance or gift from third party or property excluded by valid agreement between the spouses

(c) Automatically terminates upon remarriage of the party having use and possession of property or upon the youngest child attaining the age of majority. 

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