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). Specifically, in an initial case the parents start off on equal footing. Maryland Code, Family Law Article §5-203(d) states: (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). Rather, the best interests factors have evolved over time from Maryland appellate court opinions.

The best interest factors 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
22. plus, any other factors.

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

All factors should be considered, giving more weight to relevant ones and little to no weight to inapplicable ones.

But what does all this mean in practical terms?

In short, the factors need to be tied 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 the parent. For example:

• Adultery. In 1977, Davis v. Davis 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, in 2016, Santo v. Santo pivoted from Taylor, 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'".
• 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.
• 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.
• 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 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 on LinkedIn, Facebook, LindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.