Maryland’s Commission on Child Custody Decision Making – Legislative Standstill 3 Sessions After

by | Jul 12, 2017

In March/April 2016, I co-authored an article about the Commission and the need for a child custody statute:  The Commission on Child Custody Decision Making: From Theory to Practice (note, link takes you to MSBA’s website to download the article).  So, won’t repeat the background here.

Where do things stand now? Still no custody statute 3 sessions later, despite multiple failed custody bills based on the Commission’s work.

In the 2017 session, the Maryland General Assembly (“MGA”) couldn’t even agree enough to pass a bill changing terminology in existing law from “legal custody” to “legal decision making” and from “custody or visitation” to “parenting time”, without meaningful change in the law itself. Would Marylanders rather continue to refer to their children in possessory terms (“custody”) as opposed to parenting terms (“decision making” and “parenting time”)?

Ironically, a 2017 pet visitation statute progressed farther through the MGA than a child custody statute. Begging the question…do we really care more about our pets than our children?

Quite to the contrary.

Rather, there is a fundamental disagreement at the heart of this legislative standstill. Equal or shared parenting time versus best interests of children.

Broadly speaking, the Commission-based bills focus on children’s best interests and factors that courts should consider when determining a parenting arrangement in a child best interests. Opposing bills and many MGA legislators focus on a presumptive minimum amount of time and decision-making participation a parent should have in his/her child’s life. The presumption-based bills vary on shared time and decision-making (so, generally 1/3 minimum) to equal time and decision-making (so, 50/50).

These distinctions go to the heart one one’s identity as a parent. Quality versus quantity. Child-focused versus parent-focused.

Parents wronged through the litigation process feel treated unfairly – whether based on gender, circumstance, or other prejudice. The presumption-based bills attempt cure these wrongs by putting both parents on equal or fairer footing.

The Commission-based bills, which I have supported as a member and Co-Chair of the Legislative Committee of the Family & Juvenile Law Section of the MSBA, focus instead on a standardized structure for courts to consider factors, make decisions, and articulate its reasons for parenting time and decision-making awards in the best interest of children.

However, with each passing MGA session and new Appellate Court decisions, the Commission-based bills grow stale. For example, the laws have changed significantly on child custody decisions between biological or adoptive parents and non-biological/non-adoptive or de facto parents and consideration of parent disabilities in making custody decisions. All good and important developments. But, without any addressing the big picture of the Commission-based bill.

And, as time passes, it seems more and more states enact laws supporting presumptive parenting, whether shared or equal. Will Maryland follow this trend? Time will tell.