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, and to 65% overnights, equating 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).

There are, however, common schedules, such as:

• For 50/50 parenting time:
  • 5/2/2/5 – The child is with one parent for the same two overnights each week (usually Monday and Tuesday), with the other parent two overnights each week (usually Wednesday and Thursday), and the remaining three overnights (usually the weekend, from Friday until Monday morning) are alternated.
  • 2/2/3 – The schedule rotates over a 2-week period, so that the child is with parent 1 for 2 overnights, with parent 2 for 2 overnights, parent 1 for 3 overnights, parent 2 for 2 overnights, parent 1 for 2 overnights, parent 2 for 3 overnights, and so on.
  • Week on/off – Alternating weeks between both parents, which may or may not include dinner/after school parenting time for the non-scheduled parent.
  • 4/3 – Splits the week into 4-overnight and 3-overnight periods, alternated between the parents.
• For shared physical parenting time, so 128 to 237 overnights:
  • A variety of schedules ranging from a parent having 5 overnights to 9 overnights in a 2-week period, usually built around alternating weekends.
  • May include dinners or after school time with a child.
  • For example, expanded alternate weekends, such as Thursday until Monday, plus Tuesday and/or Thursday overnight(s) in the "off" week (the week without weekend parenting time), as well as variations on this.
• For primary physical custody parenting time, so 127 or less overnights:
  • Usually built around alternating weekends, which may be defined as Friday and Saturday nights, or expanded to Thursday to Monday mornings, or variations of this.
  • 4 or less overnights in a 2-week period for the non-primary residential parent.
  • May include dinners, after school, or other non-overnight time with a child.

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

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

TIP: A good resource when thinking about parenting time schedules – especially age appropriate ones - is the Massachusetts AFCC’s guide, Planning for Shared Parenting.

When addiction, mental health, abuse/neglect, domestic violence, or a special needs/disability (of a parent or child) are real concerns, then these should be given further consideration in fashioning the parenting plan and any conditions on parenting time.

Parenting time can be gradually increased over time or conditions lifted or reduced following a track record of successful parenting time.

Child-focused parenting plans are not shaped by cookie cutter approaches. Rather, child-focused parenting plans focus on the particular family and child and are customized to address each unique family.

The most customization is accomplished via agreement, because parents can craft as much detail as each is willing to agree to. The court will impose a schedule if parents cannot agree, but likely without as much detail.

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, LindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.