Joint Custody for All?

According to Maryland Law, if parents of a minor child live apart, a court may award custody to either parent individually, or joint custody to both parents. It is noted that custody determinations must be made by careful examination of facts on a case by case basis in order to determine what is in the best interest of the child. So, what do courts look at when determining what is in the best interest of a child? Is a child’s best interest always presumed to be with the mother? Or is there a presumption that the child’s best interest is with the father? What about a presumption that the child’s best interest is with both parents?

A bill that has been trying to force its way to victory has been known as House Bill 888. House Bill 888 is the Joint Custody Presumption Bill.  Introduced once again at the beginning of the year, this bill would require courts to start with the presumption that joint physical and legal custody for equal periods of time to the mother and father is in the best interest of the minor child.  

Currently, twenty-one states and the District of Columbia have statutory provisions that permit a court to initially presume that joint custody is in the best interest of the child. With a growing number of states passing the Joint Custody Presumption bill and the like, Maryland still seems quite unimpressed with the bill. Maryland, unlike some states, does not have a statutory definition of joint custody. In addition, Maryland does not statutorily have a set list of factors in determining joint custody between two parents. However, courts rely on factors found in a 1986 Court of Appeals case where a judge granted joint custody to divorced parents. The factors examined were (1) willingness of parents to share custody, (2) fitness of parents, (3) relationship established between the child and each parent, (4) preference of the child, (5) potential disruption of child’s social and school life, (6) geographic proximity of parental homes, (7) demands of parental employment, (8) sincerity of parents’ requests; (9) financial status of the parents. While passing House Bill 888 won’t take away the examination of these factors, all it seems to request is that courts assume that joint custody is what is best. After examination of these factors, if joint custody is seemingly the wrong decision, then the court would make other decisions. House Bill 888 just seeks to have a set starting point for custody decisions.

While Maryland seems to be lagging behind in passing House Bill 888, we still hold true that Maryland courts will examine all factors necessary in order to decide what is in the best interest of the child even though they may not start with the presumption that joint custody is in the best interest of the child.

MD Code, Family Law, § 5-203.

The Maryland Bar Journal (Jan./Feb. 2012)

Taylor v. Taylor, 306 Md. 290 (1997). 

 

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