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.

Physical custody falls into three broad categories:

1. Sole physical custody, which is also referred to as primary;
2. Shared physical custody, which is also referred to as joint; and,
3. Split physical custody, when the parents have multiple children and at least one child resides with each parent.

In Maryland, we do not have a custody statute.

Shared physical custody is defined, in the context of child support, as: “each parent keeps the child or children overnight for more than 35% of the year and…both parents contribute to the expenses of the child or children in addition to the payment of child support.” So, less than 35% of annual overnights is sole physical custody.

The labels of shared versus sole and visitation versus access or parenting time matter less than the actual schedule. It is the actual schedule that determines whether a schedule is shared or sole. Therefore, physical custody is a spectrum.

For shared, ranging from 35% overnights to 50/50 to 65% overnights which equates to 128 overnight to 237 overnights per year. For sole, ranging from 0 to 127 overnights per year.

There is no standardized, mandatory schedule. “Custody cases involve too many people, conditions, and human emotions to be reduced summarily to a mere mathematical process.” Montgomery County v. Sanders, 38 Md.App. 406 (1978).

Rather, a child’s schedule should be based upon a child’s best interests, taking into account factors such as:

1. fitness of the parents
2. character and reputation of the parties
3. desire of the natural parents and agreements between the parties
4. potentiality of maintaining natural family relations
5. preference of the child
6. material opportunities affecting the future life of the child
7. age, health and sex of the child
8. residences of parents and opportunity for visitation
9. length of separation from the natural parents
10. prior voluntary abandonment or surrender
11. capacity of the parents to communicate and to reach shared decisions affecting the child's welfare
12. willingness of parents to share custody
13. relationship established between the child and each parent
14. potential disruption of child's social and school life
15. geographic proximity of parental homes
16. demands of parental employment
17. age and number of children
18. sincerity of parents’ request
19. financial status of the parents
20. impact on state or federal assistance
21. benefit to parents
22. plus, any other factors.

Montgomery County v. Sanders, 38 Md.App. 406 (1978) and Taylor v. Taylor, 306 Md. 290 (1986).

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.

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?

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on LinkedIn, Facebook, and LindsayParvis.com and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.