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CHILD CUSTODY. Part II. March 11, 2004. Review. History – paternal/maternal presumptions to gender neutral “best interests” Terms – joint/sole; legal/physical Trends – Process : Adversarial Trial to Parenting Plans/Mediation Standards : Where private ordering

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Child custody


Part II

March 11, 2004


History – paternal/maternal presumptions to gender neutral “best interests”

Terms – joint/sole; legal/physical

Trends – Process: Adversarial Trial to

Parenting Plans/Mediation

Standards: Where private ordering

fails, replace broad discretionary

“best interests” w/approximation standard

or other rule

Best interests of child standard
Best Interests of Child Standard

Are there limits to court’s discretion when considering certain factors?

  • Gender

  • Race

  • Religion


  • Tender Years Presumption Violates Equal Protection Clause

  • Equal Protection Clause and MD ERA prohibit Ct from presuming “that a girl child of a certain age has a particular and specific need to be with her same sex parent” (Giffin v. Crane, 351 Md. 133 (1998))

Child custody

Consideration of race as sole factor in custody decisionmaking violates equal protection (“The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody,” Palmore v. Sidoti, 466 U.S. 429 (1984)(emphasis added)).


Courts may consider religion in custody case but free exercise and establishment clauses prohibit interference w/parental decisions concerning religion unless child’s welfare is affected.

Custody best interest standard in md parent parent
CustodyBest Interest Standard in MD(Parent/Parent)

  • Broad, multi-factor standard drawn primarily from case law

    1. Fitness of parties

    2. Character and reputation of parties

    3. Preference of child

    4. Material opportunities

    5. Age and gender of children

    6. Residence of parties/opportunities for visitation

    7. Length of separation of parents

    Continuity of Care?

Only statutory factor
Only Statutory Factor:

  • Evidence of abuse against the other parent, the party’s spouse, or any child residing in party’s household (§9-101.1)

Study of family law cases in md profile
Study of Family Law Cases in MDProfile

Number of cases reviewed 2,573

Absent/dismissed cases 726

Number of cases analyzed 1,847

In Baltimore Metropolitan area 983

Cases with children 1,022

Divorce cases 1,687

Woman as plaintiff 1,127

Man as plaintiff 720

Third party custody cases 39

Profile of divorcing families
Profile of divorcing families

  • Women are filing first in 62% of the cases

  • Length of marriage

    • 10-19 years 32%

    • 5-9 years 27%

  • 55% have minor children

    • 63% had only one child

  • Most common ground for divorce granted: voluntary separation (53%)

Where were the kids
Where were the kids?

n= 1022 (all cases with children)

What type of custody are they asking for
What type of custody are they asking for?

Breakdown of custody awards
Breakdown of custody awards

n= 1022 (all cases with children)

Breakdown of custody awards combined
Breakdown of custody awards(combined)

n= 1022 (all cases with children)