Lindsay Parvis represents clients in custody and other divorce-related matters, and she frequently represents children in contested custody litigation as a court-appointed Child Privilege and Best Interests Attorney. Amanda Smith’s practice focuses on family law litigation and negotiation, where her background in the field of psychology provides insights that serve her clients well. In this podcast, both attorneys discuss child custody and support, including the differences between legal and physical custody, whether or not a child can choose which parent they wish to live with, and how child support is established and calculated in Maryland.
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Lindsay Parvis and Amanda Smith
Bio: Family law attorneys Lindsay Parvis and Amanda Smith are partners at Dragga, Hannon, and Wills law firm in Rockville, Maryland. Lindsay represents clients in both contested and uncontested divorce, focusing particularly on child custody matters. Since 2012, she has served as the Legislative Committee Co-Chair of the Family and Juvenile Law Section. Amanda is passionate about both educating her clients on the legal process and improving the local legal community. Amanda sits as a board member for both the Montgomery County Women’s Bar Association and for the local practice group, Collaborative Dispute Resolution Professionals.
Divorce Magazine’s Podcasts are available on itunes. Click here to subscribe.
Read the Transcript of this Podcast Below.
Amanda, is there a difference between legal custody and physical custody in Maryland?
There is a difference between the two. Generally custody involves the rights of separate parents or other responsible adults to participate in a child’s life. In Maryland child custody falls into two categories, legal custody and physical custody. Legal custody is about decision making regarding a child’s health, education and religious upbringing. Legal custody is more than a decision itself. For example it may include the exchange of information, discussion, as well as intending and participating in appointments and conferences. Physical custody on the other hand is about where the child lives and a schedule for spending time with each parent or responsible adult. Physical custody involves the day to day schedule, summer schedule, and holidays.
Amanda, can you describe the differences in rights and responsibilities between sole and joint custody?
Well, let’s start with physical custody. In this context, sole physical custody means a child resides primarily with one parent. In Maryland that means 127 or less overnights per year with the other parent. Joint custody means that a child resides with both parents with a schedule ranging from 128 to 237 overnights per year with each parent. In the context of legal custody, sole legal custody means that one parent has the right to make decisions regarding the children’s health, education, and religious upbringing.
Sole legal custody may or may not involve an exchange of information, discussion or rights to participate in appointments and conferences by both parents. Joint legal custody means that both parents participate in discussion, have access to information, and are entitled to participate in appointments and conferences. Joint legal requires the parents to make a joint decision, joint legal with tiebreaker means that if the parents disagree, one parent has the right to break the tie by making a final decision.
Can a custody agreement or custody order be changed. How?
An award of custody can always be changed or modified by the court because a child or a parent’s situation can always change. In Maryland if there’s what is called a material change in circumstance, a custody order or agreement can be changed. This requires the parent who wants the modification to prove that their circumstances are now different than at the time of the last agreement or court order, that the changes impact the child and therefore that the child’s residence, schedule, and/or decision making arrangement should be modified.
Changes to custody can be by agreement or by court case. If a parent seeks a modification through the court, then the focus of the court’s consideration will be whether there’s a material change in circumstances and if so what is now in the best interest of the child.
Amanda, at what age can a child choose which parent he or she wishes to live with?
In Maryland a minor child, meaning a child who’s under the age of 18, never has the legal right to chose where or with whom he or she will live. However at age 16, a child who is the subject of a custody order can file his or her own petition to request a change in custody. Now keep in mind that choice is not the same as preference. At any age the court can take into consideration the child’s preference about where he or she lives, and the schedule for when her or she will be with which parent, whether that means joint or sole physical custody.
Lindsay, if a child’s preference can be taken into account in Maryland custody cases, how would that work?
There are a number of ways to take a child’s preference into account in a child’s custody case. For example in a custody evaluation, the evaluator usually talks with the children, or the child, and shares those conversations with the parents or testifies about them in court. Or the court can appoint an attorney for the child, which in Maryland is the best interest or child advocate attorney whose job involves making the child’s preference part of the court’s record.
If a child’s therapist is allowed to testify, his or her testimony may include the child’s preference. Now less often the judge or magistrate will speak directly with the child or a parent may retain an attorney to represent a child and a child’s preference. In settlement parents can enlist the help of a mental health professional to speak with the child so that the child’s preference can be taken into account in any settlement.
Lindsay, what happens if a child refuses to see or spend time with one parent in spite of what the court has ordered?
These cases are usually complicated and tend to invite litigation, either because one parent wants the other to be found in contempt because parenting time isn’t happening or a parent wants to change the schedule to reflect that no parenting time is happening. In these cases it’s important to get to the root of why a child refuses to see and spend time with a parent and explore whether the relationship can be repaired and parenting time resume.
Expert assistance is often needed, whether from therapists, custody evaluators, psychological testing or appointed attorney for the child. For example reunification therapy is a type of therapeutic intervention to help repair a child’s relationship with a parent.
Amanda, how easy is it to get a Maryland court to award custody to a third party such as a grandparent, aunt or uncle, sibling or stepparent?
Well, it depends because Maryland law on this topic has changed a lot in the last couple of years and continues to change. For purposes of this question a third party is a person who is not a parent either biologically or by adoption. The easiest way for a third party to get custody is if both parents agree to the arrangement. If they don’t agree though, then the court has to look at one, whether the third party might be considered a de facto parent, two, whether both parents are unfit or three, whether there are exceptional circumstances.
A de facto parent is a non-parent who acted like a parent with the parent’s consent and encouragement. The de facto parent would have lived with the child in the same house, assumed parental responsibilities for the child, and established a parent-child bond with the child. If someone can show that he or she is a de facto parent, then the court can consider whether to award custody, parenting time, or decision making to that person.
If a third party is not a de facto parent, then the third party must show either that that parents are unfit or that exceptional circumstances exist to justify awarding custody to that third party. Now parental unfitness consists of neglect, abandonment, abuse, emotional or mental illness, surrender of parental rights or behaviour conduct detrimental to the child. Exceptional circumstances consist of a number of factors and requires the third party to prove that the parent basically abandoned the child in the third party’s care for a long period of time.
Amanda, how do the Maryland child support guidelines work? Do they cover all the expenses related to children, and if not who makes up the difference?
Maryland child support guidelines are a formula that the court is required to apply when the parent’s combined income are $15,000 per month or less, in other words $180,000 or less. The formula takes into account each parent’s monthly income before taxes from all sources and almost all deductions as well as certain expenses of the children. The formula also makes adjustments for child support paid for children from other relationships, alimony paid between the parents, as well as alimony paid by a parent to a former spouse.
The formula includes work related childcare expenses, insurance premiums attributable to the children for medical, dental, vision and prescriptions, certain educational expenses and travel in order to have parenting time. If the parents have shared or joint physical custody, then the guidelines also take into account the number of overnights the child spends in each parent’s house.
Child support resulting from the guidelines is designed to consider the costs of food, utilities, clothing and some incidental expenses as well. Shared or joint physical custody guidelines assume that each parent is contributing to the child’s day-to-day expenses like clothing and school supplies above and beyond the amount of child support paid. The guidelines do not take into account though the children’s extracurricular activities, which includes sports, dance, music, summer camps or equipment and supplies for these activities.
Do the child support guidelines apply in all cases, if not how do you establish and calculate child support?
Well, it is mandatory for the court to consider the guidelines in every case in which the parent’s combined income equal, or fall below $15,000 per month. The Maryland child support guidelines statute creates a rebuttal presumption that the guideline amount of support is correct. However the presumption may be rebutted if a parent can prove that applying the guidelines support would be unjust or inappropriate.
Now to determine whether applying those guidelines would be unjust or inappropriate the court may consider among other things whether the parent is paying a mortgage on the home where the child lives, contributing to a child’s college expenses, making direct payments for the benefit of a child, or owe support to children of another relationship. The parent must also submit a verified financial statement and proof of their current and past income and tax returns for the most recent three years. If the court does decide to deviate from the guidelines, then the decision must include written findings as to how the deviation best serves the interest of the child.
Does custody impact child support, if so how?
Physical custody can impact child support. In Maryland the number of overnights of visitation per year affect the amount of child support paid to the custodial parent, when a child spends 127 or fewer overnights with the parent who is paying child support, then the guidelines do not take into account the number of overnights.
However if the child spends 128 or more overnight visits with the parent paying child support, then the amount of child support takes into account the number of overnights and is generally less. This type of calculation assumes however that both parents are contributing to the child expenses above and beyond the monthly child support amount. If a parent does not, the court may then deviate or order a different amount of child support so that the child’s needs are met.
Amanda, can a child support agreement order be changed and if so how can it be changed?
Child support can always be modified. In order to modify child support a parent must show that a material change in circumstances has occurred since the last time the court considered the issue.
A change of material circumstances occurs when it meets two requirements. One, the change is relevant to the amount of support a child is receiving or is entitled to receive and two, the changes of sufficient magnitude to justify a modification. Courts have found that both a substantial decrease or increase in the income of the payer parent may be sufficient to grant a modification, likewise changes in the child’s expenses or number of overnights with a parent may also be a material change. Child support determinations made by agreement of the parties are also subject to modification. In Maryland these agreements are typically incorporated but not merged into a divorce decree, at which time the agreement is included within the court’s order.
Amanda, what’s the best way to resolve child custody and child support disputes in Maryland? What resources are available to parents?
Well, the best way to resolve child custody and support disputes really depends on the individual needs of the child and family. Settlement is often a good option for resolving a custody child support dispute because it gives the parents control over the outcome. Parents can choose outcomes that a court cannot and parents can go into far more detail in a settlement than a court likely will. There are also a number of different process options for resolving disputes without going to trial.
Settlement can be the result of discussions between the two parents, attorney to attorney negotiations, mediation with a neutral mediator who facilitates settlement discussions and resolves impasse, settlement conferences and contested litigation with a court appointed facilitator who might be an experienced lawyer, a retired judge, or a magistrate even.
Or the collaborative process, in collaborative divorce, both parties retain attorneys and engage in a structured settlement process requiring full and transparent disclosure and problem solving. A team of professionals including a lawyer for each party, a mental health professional and a financial specialist help the parties work towards an amicable solution. Neither party may threaten to go to court or the entire process is halted and both parties have to withdraw from the case. If the parties are unable or unwilling to settle their dispute using one of the processes I just described, the judge or magistrate will make the decisions for them.