When it comes to where a child of separated parents lives, the child’s schedule for spending time with each parent, and decision-making about a child, the guiding principle is the child’s best interests.

In settlement, this means the parents put the child’s interests first. In court, this means the court putting the child’s interests before the parents’.

The best interest standard applies in an original custody case (so, the first time custody is decided) or when modifying custody (provided a material change is first proven).

Statutory Law

In an initial case the parents start off on equal footing per Maryland Code, Family Law Article §5-203(d):

(d) Award of custody to parent. —

(1) If the parents live apart, a court may award custody of a minor child to either parent or joint custody to both parents.

(2) Neither parent is presumed to have any right to custody that is superior to the right of the other parent.

And, when modifying a custody agreement, Maryland Code, Family Law Article §8-103(a) sets the standard:

(a) Provision concerning children. — The court may modify any provision of a deed, agreement, or settlement with respect to the care, custody, education, or support of any minor child of the spouses, if the modification would be in the best interests of the child.

But, no Maryland statute lists the best interest factors for the court to consider (and for parents to prove). Until January 1, 2020’s Rule 9-204.1: Parenting Plans (discussed below), the best interests factors evolved over time from Maryland appellate court opinions (case law).

Case Law

The best interest factors according to Maryland case law (which I interpret to be common law, as discussed below about “Which Factors Apply?”) are:

1) fitness of the parties

2) character and reputation of the parties

3) desire of 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) parties’ capacity to communicate and to reach shared decisions affecting the child’s welfare

12) willingness of parties to share custody

13) relationship established between the child and each party

14) potential disruption of child’s social and school life

15) geographic proximity of parties’ homes

16) demands of parties’ employment

17) age and number of children

18) sincerity of parties’ request

19) financial status of the parties

20) impact on state or federal assistance

21) benefit to the parties

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

January 1, 2020 Parenting Plan Rule

In an understated but major development, January 1, 2020 introduced Maryland’s new Rule 9-204.1: Parenting Plans. This is one of several Rules changes to:

• Existing Rule 9-204 regarding the parenting educational seminar in child custody cases;
• New Rule 9-204.1 defining important parenting terms and establishing a parenting plan tool and settlement process;
• New Rule 9-204.2 creating a mandatory Joint Statement regarding parenting to be filed in contested custody cases that do not settle; and,
• Existing Rule 9-205 regarding mediator’s role assisting with the preparation of the Joint Statement required in Rule 9-204.2.

Rule 9-204.1 sets out 14 Best Interests Factors which the parents and parties may consider:

• Stability and the foreseeable health and welfare of the child;
• Frequent, regular, and continuing contact with parties who can act in the child’s best interest;
• Whether and how parties who do not live together will share the rights and responsibilities of raising the child;
• The child’s relationship with each party, any siblings, other relatives, and individuals who are or may become important in the child’s life;
• The child’s physical and emotional security and protection from conflict and violence;
• The child’s developmental needs, including physical safety, emotional security, positive self-image, interpersonal skills, and intellectual and cognitive growth;
• The day-to-day needs of the child, including education, socialization, culture and religion, food, shelter, clothing, and mental and physical health;
• How to:
  • place the child’s needs above the parties’ needs;
  • protect the child from the negative effects of any conflict between the parties; and
  • maintain the child’s relationship with the parties, siblings, other relatives, or other individuals who have or likely may have a significant relationship with the child;
• Age of the child;
• Any military deployment of a party and its effect, if any, on the parent-child relationship;
• Any prior court orders or agreements;
• Each party’s role and tasks related to the child and how, if at all, those roles and tasks have changed;
• The location of each party’s home as it relates to their ability to coordinate parenting time, school, and activities;
• The parties’ relationship with each other, including:
  • how they communicate with each other;
  • whether they can co-parent without disrupting the child’s social and school life; and
  • how the parties will resolve any disputes in the future without the need for court intervention;
• The child’s preference, if age-appropriate; and
• Any other factor deemed appropriate by the parties.

Which Factors Apply? (Or, Are Rules Law?)

The best interest factors contained in Rule 9-204.1 are significant because the law is made of words and words matter.

• Rule 9-204.1(a) tells us that the definitions apply “except as expressly otherwise provided or as necessary implication requires”.
• Rule 9-204.1(c) tells us that the parties “may consider” (instead of “shall consider”) the best interests factors.
• Rule 9-204.2(d) tells us that the Court “may consider” (instead of “shall consider” or “is required to consider”) the best interest factors in the Rule.
• Then, Maryland Rule 1-201(c) states that “either these rules nor omissions from these rules supersede common law or statute unless inconsistent with these rules.” Which is consistent with Maryland’s Constitution, Article IV, §18 (“rules and regulations…shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law”) And, cases tell us that rules have the force of law and will be construed to harmonize with statutes, not to produce an unreasonable result.

So the short answer is yes, but…

Until we have appellate case law interpreting and applying these new Rules, we won’t know for sure if or how the new Rules will be harmonized with existing custody case law. In the meantime, the new Rules appear to defer to existing law and discretion of parents and Courts (who “may” but not “shall” consider them). A harmonious reading of existing law and the new Rules is entirely possible.

Considering the Maryland’s legislature’s inability to pass any similar law (despite repeated efforts over many years), the new Rules are a welcome consolidation of existing case law and statutes, plus a social science based modernization of the best interests legal framework and vocabulary used regarding families and parent-child relationships. And, factors that attorneys and other family focused professionals can and should cite to.

But How Do the Factors Apply in Practice?

Consider all factors, giving more weight to relevant ones and little to no weight to inapplicable ones.

Connect factors to the child’s welfare – whether and how the child is impacted. Followed by consideration of whether the harm can be prevented by appropriately narrow limitations on or supportive services for the parent.

For example:

• Adultery. In 1977, Davis v. Davis, 280 Md. 119, decided “whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the child’s welfare”.
• Communication. Since 1986, Taylor v. Taylor established that capacity to communicate and reached shared decisions was the “most important factor” when deciding whether to award joint legal custody. But because custody law is always evolving, Santo v. Santo, 448 Md. 620 (2016), pivoted from Taylor in 2016, deciding that communication is not a prerequisite to joint legal custody and that: “a court of equity ruling on a custody dispute may, under appropriate circumstances and with careful consideration articulated on the record, grant joint legal custody to parents who cannot effectively communicate together regarding matters pertaining to their children.”
• Abuse and Neglect. In cases in which the court has reasonable grounds to believe that a child has been abused or neglected, Family Law Article §9-101 also requires the court to find that there is no further likelihood of abuse or neglect before granting unsupervised access to a parent.
• Religion. This is a thornier issue. On the one hand, a Judge or Magistrate should not favor one religion over another or over nonreligion. On the other hand, the court can fashion adequate safeguards against a parent’s religious beliefs that jeopardize the life and health of a child (i.e. – regarding medical care). Before interfering with a parent’s religious beliefs, there must be a “clear showing that a parent’s religious practices have been or are likely to be harmful to the child before allowing judicial interference with those religious practices”. So, a demonstrated “causal relationship between the religious practices and the actual or probable harm to a child is required”. And, “the remedy should be that ‘which intrudes least on the religious inclinations of either parent and is yet compatible with the health of the child,’ and should be ‘narrowly tailor … so as to result in the least possible intrusion upon the constitutionally protected interests of the parent'”. Kirchner v. Caughey, 326 Md. 567 (1992).
• Paramours. When a parent has an affair and the parent’s paramour spends time with the child(ren), this is not presumed detrimental to the children’s best interests. Before restricting a parent’s parenting time with a child in the presence of the parent’s non-marital partner, the court must first find harm (emotional or physical; actual or potential, but not speculative) to the child resulting from contact with the non-marital partner. Boswell v. Boswell, 352 Md. 204 (1998).
• Sexual Preference. “The only relevance that a parent’s sexual conduct or lifestyle has in the context of a visitation proceeding…is where that conduct or lifestyle is clearly shown to be detrimental to the children’s emotional and/or physical well-being”. Sexual preference is not, itself, a bar to parenting time. Boswell v. Boswell, 352 Md. 204 (1998).
• Substance Use. Addiction and substance use is not, itself, a bar to parenting time. However, if harmful to a child, the court can impose appropriate restrictions on a parent.
• Unfitness. Likewise, although Burak v. Burak, 455 Md. 564 (2017), is a grandparent custody case, it sheds light on the issue of parental unfitness, which is a subject not thoroughly discussed by Maryland’s Appellate Courts in parent custody cases. In Burak, parental lying at trial, drug use, and sexual behavior (polyamorous relationship and promiscuity) were offered as evidence of parental unfitness. However, the Appellate Court decided that these behaviors are not, in and of themselves, evidence of parental unfitness. To evidence unfitness, such behaviors must be shown to be detrimental to the child or, at the least, that the child is aware of them. The Burak opinion does not, however, explain if a child’s awareness, alone, is really sufficient evidence of unfitness.

In conclusion, the best interests analysis is not a cookie cutter or formula. It is specific to each family and each child within that family, focusing on the child’s health, safety, welfare, and how (if at all) these are impacted by a parent and his/her behavior.

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 for discussion, news, and developments in Maryland family law on LinkedIn, Facebook, Instagram, Twitter, LindsayParvis.com, and YouTube.