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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:
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:
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:
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.
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