Considerations for Modification of Physical or Legal Custody in Maryland
Before commencing an action in Maryland to modify physical or legal custody, there are important legal principals to consider. This guide will set forth those principals.
Initial ConsiderationsIf you are considering filing for a change in physical or legal custody of an existing order, you need to be aware of and take into consideration the analysis that the court will employ. Determining whether you have a likelihood of success can avoid unnecessary monetary and emotional costs.
When faced with a request for change in custody, the court must employ a two-step analysis. Gillespie v. Gillespie, 206 Md. App. 146, 170, 47 A.3d 1018 (2012). First, the court must assess whether there has been a material change in circumstances. Id. A change in circumstances in material only when it affects the welfare of the child. Id. at 171. Second, if the court finds that there has been a material change in circumstances that affects the welfare of the child, the court must then consider the best interests of the child as if the proceeding were one for original custody. Id. at 170. The burden is on the moving party to show both that a material change in circumstances affecting the welfare of the child has occurred and that it is now in the best interests of the child for custody to be changed. Id.
It has been widely held that "[t]he custody of children should not be disturbed unless there is some strong reason affecting the welfare of the child." Sartoph v. Sartoph, 31 Md.App. 58, 354 A.2d 467 (1976). In Sartoph, the Court of Appeals stated:
To justify a change in custody, a change in conditions must have occurred
which affects the welfare of the child and not of the parents. The reason for
this rule is that the stability provided by the continuation of a successful
relationship with a parent who has been in day to day contact with a child
generally far outweighs any alleged advantage which might accrue to the
child as a result of a custodial change. In short, when all goes well with children,
stability, not change, is in their best interests.
Id. at 66-7.
In addition to stability, it has been well established that "[a] litigious or disappointed parent must not be permitted to re-litigate questions of custody endlessly upon the same facts, hoping to find a chancellor sympathetic to his or her claim." McCready v. McCready, 323 Md. 476, 593 A.2d 1128 (1991).
Applying the Considerations to Your CaseIt is important to note that the court will not simply look at the facts from the perspective of either party. Rather, the material change in circumstances must affect the welfare of the child.
Even if the court determines that a material change in circumstances has occurred, this does not mean that the party seeking the change wins. Rather, the court must then treat the matter as if it were an intial case and determine the custodial arrangement that is in the best interests of the child.
Before taking an action, you would be well advised to seek the assistance of an attorney experienced in this field of law. An experienced attorney should be able to advise you as to whether he or she thinks that you will be able to establish that a change in circumstances has occurred and, if so, the likelihood that the court will alter the custodial arrangement. Obviously, no one can give this advice with certainty.