Following the December 2014 release of the final report of the Commission on Child Custody Decision Making, the Maryland General Assembly is now evaluating bills to address children in custody cases. These bills will give judges guidelines on how to decide legal custody–the legal right and obligation to make major decisions on behalf of minor children, and physical custody– the daily living arrangements for minor children when their parents do not reside in the same home. In general, two competing visions are contained in the legislative proposals introduced in the 2015 session.
The proposal endorsed by the Commission (SB 550/HB 1083) begins with the principle that is now our current law. In this approach, both mother and father stand before the law equally and neither parent is presumed to be the superior or inferior parent. This bill requires judges to analyze the “best interest of the child” when reaching a decision about parental responsibilities and arrangements for the child. It places the child at the center of the process and sets forth a series of factors that the court both must consider and may consider in its ruling. It requires the judge to articulate the reasons why the court arrived at its decision.
The chief competing proposal before the General Assembly (SB 650/HB 888) begins with a different principle. This bill asserts that joint legal decision making and shared physical custody of the child with both parents for approximately equal periods of time is the starting point in defining the best interest of the child. As a matter of public policy, this bill favors co-parenting arrangements, but permits litigants to present evidence to rebut this legal presumption. The bill allows the judge to award sole legal and physical custody to one parent if, by a preponderance of the evidence, the judge determines that the co-parenting arrangement is not in the best interest of the child.
It should be noted that the vast majority of contested domestic relations cases, including cases where the arrangements for children are at issue, settle. How our Code sets forth the manner in which our courts will analyze these difficult cases is the task before the General Assembly. One view (SB 550/HB 1083) will require the judge to undertake a defined and rigorous analysis of the facts and circumstances of the particular family in the dispute. The competing view (SB 650/HB 888) will direct the judge to make a particular ruling, unless evidence is presented to show why co-parenting is not a good idea. Whatever legislative proposal passes the General Assembly, it has the potential to influence the lives of our children for generations.