What is Child Custody?

In Maryland, child custody has two main parts:  physical custody and legal custody.

Physical custody involves where a child lives, when a child spends time with each parent, and any conditions.  Physical custody is also called residential custody or parenting time.  It includes the schedule, holidays, and vacation time, which are often referred to as visitation or access.

Legal custody involves decision making about health, education, and religious upbringing of a child.  It is also called decision making.  By agreement, parents can define legal custody to involve additional issues, such as selection of extracurricular activities, childcare providers, and other important matters about which both parents want to give input and decide.  Legal custody involves communication, consultation, access to information, participation, and making the decision.

When parents refer to “full custody”, it is important to figure out what is meant – whether physical custody, legal custody (decision making), or both.  For some parents, “full custody” means having a say about a child.  For other parents, “full custody” means time with a child.  For still others, “full custody” means both.  Because there are so many labels for the same or similar concepts, it is important to get on the same page about what the labels mean and be specific about parenting time schedules and decision making arrangements.

When settling your case, you can customize child custody to suit the needs of your family.  Be as detailed, or not, as you and the other parent choose to be.  When litigating custody, a Magistrate or Judge will decide custody for you and impose the Magistrate’s/Judge’s own schedule and decision making arrangement based upon what the Magistrate/Judge believes in the best interest of your child.

When parents settle child custody, the terms are put into writing.  Either in a parenting agreement (or however it is titled) or consent custody order.  Often, the parenting agreement is incorporated, but not merged, into a custody order that is submitted to the court.

When a court decides custody, the decision is contained only in a court order.

A custody order, whether incorporating but not merging an agreement or decided by a court, is then entered by the court and becomes part of the court’s record.

As discussed in my other posts in this series about Customizing Your Case, when creating a parenting agreement, parents can be as detailed as they both agree to be.  They can address matters that the court either cannot or is not inclined to address.  Settlement becomes an opportunity to customize the outcome of your case to suit the unique needs of your family.

When signing a parenting agreement, a parent should expect to follow the agreement.  After the dust of discord settles, some parents fall into organic, flexible parenting – doing what is right and best for the children, even if a deviation from the parenting agreement.  And, referring to the parenting agreement only when the dust of discord stirs.  This is ideal.  Sometimes this occurs following a court-issued custody order after a contested custody trial, though rarely because of the toll of litigation on the parenting relationship.

Lastly, physical and legal custody are modifiable – so can be changed – in the event of a “material change in circumstance”.  For example, if a parent moves and the schedule is no longer practical or possible, if a child’s needs change (such as due to age, medical, educational needs), or if a parent’s ability to care for a child changes…to name a few.

Please read my other posts for more detailed discussions of physical custody, schedules, legal custody, and modification.  Consider the cost of compromise to achieve a parenting agreement over the loss of control over the outcome if the case goes to trial.  What can you – and more importantly, your children – live with?

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