Determining where the children live the majority of the time is the most contentious decision in divorce litigation. While divorcing couples usually want to get away from each other, they often cling more tightly to their children. Also, there is an implicit statement about the relative parenting abilities of the parties. Few involved parents want to be without their children the majority of the time or to be told by a court that their ex-spouse is the better parent. Most of the time, however, parents fight over physical custody because the parent awarded physical custody is entitled to child support from the other parent.
In Maryland, if the children spend 2/3 of the nights each year with one parent that parent has primary physical custody. Conversely, if each parent has the children more than 35% of the nights each year (128 nights) then the parents share physical custody. The difference between primary custody and shared physical custody results in a substantial difference in child support payments. Child support decreases substantially when the parents share custody of the children as opposed to one parent having primary physical custody.
Deciding whether to award primary or shared physical custody the court must resolve: what custodial arrangement is in the children’s best interest. This simple question involves a myriad of issues encompassing the children’s education, past history, friendships, activities, relationships with each parent, siblings (including step siblings) and extended family, the parents work schedules, living arrangements and other factors. However, judges tend to look at two main factors when making this evaluation.
First, unless a parent is abusive or unfit, courts prefer that both parents have as much contact with their children as possible. Courts will usually try to award both parents time with the children whenever possible. The assumption is that it is best for the children that they have both parents involved in their lives as much as possible. It is rare that a court will decide that it is best for the children to spend time with a daycare provider (or grandparent) when the other parent is available and willing to be with his or her children.
Often the child’s grandparent takes care of the child (when the parent is working or otherwise not available) so that he or she can maintain primary or shared physical custody. Even where the grandparent has been taking care of the child throughout the child’s life, the court will usually favor the other parent over the grandparent (unless that parent is abusive or neglectful).
Second, courts tend to favor the custody arrangement that is currently in place unless there is a good reason to change the status quo. If the children are living with their mother and they see their father on the weekends, then the court will often lean towards keeping the same schedule. If the parents and children have worked out an arrangement that works for them, then a judge will be reluctant to change it without a good reason.
In the example given above, the children spend each weekend with their father which means that they don’t spend weekends with their mother. It could be argued that this is an unfair custody arrangement because the mother has the burden of spending every school day (and work day) with the children while the father gets them during the fun times on the weekends. A court will try and give each parent time with the children on the weekends if the parent is available on the weekend.