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EspañolWhat are some of the advantages and disadvantages of getting a custody order?
There are many reasons people choose not to file for custody. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents think going to court will provoke the other parent, or they are worried that if a custody case is started, the other parent will suddenly fight for and get more custody or visitation rights than they are comfortable with.
However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
- the right to make major decisions about your child and/or
- the right to have your child live with you (residency).
However, if you file for custody, the other parent may also request these rights and it may be up to the judge to decide if the parents can’t come to an agreement.
We strongly recommend talking to a lawyer who can help you think through if filing for custody would be best for you, depending on the facts of your situation. You can find referrals for legal help by clicking on the Maryland Finding a Lawyer page.
Some people think they should file for custody so they can get child support. While custody and child support are related, you do not necessarily need a custody order to get child support. A custody order will not automatically give you child support. For information on filing for child support, you can contact your local courthouse by going to our Maryland Courthouse Locations page or talk to a lawyer.
How will the judge make a decision about custody?
When deciding who will have custody, a judge will try to make an arrangement that s/he thinks is in the best interest of your child. The court will base its decision on many factors. Some of the things a judge will consider are:
- the fitness (parenting ability) of the parents;
- the character and reputation of the parents;
- the wishes of the parents, and any agreements between them;
- the potential for keeping “natural family relations;”
- the preference of the child, when the child is old and mature enough to reasonably give an opinion;
- material opportunities affecting the future life of the child;
- the age, health, and sex of the child;
- where the parents live and the opportunity for visitation;
- the length of the separation of the parents; and
- whether either parent willingly gave up of custody of the child.1
1 Best v. Best, 93 Md. App. 644, 613 A.2d 1043 (1992)
Where can I file for child custody? (Which state has jurisdiction?)
You can only file for custody in court if that court has the legal ability to take the case. This is called “jurisdiction.” Maryland follows a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which determines what state has jurisdiction over custody cases, meaning where you can file for custody.
Under the UCCJEA, you can generally only file for custody in the “home state” of the child1 but there are exceptions to this. See Are there exceptions to the “home state rule?” for more information.
The “home state” is generally the state where the child has lived with a parent or a person acting as a parent for at least the past six consecutive months. In the case of a child less than six months old, the “home state” is the state where the child has lived since s/he was born. Leaving the state for a short time then coming back does not change anything.2
If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least 6 months. Until then, the other parent may be able to start a custody case in the state that your children most recently lived in for at least 6 months.2 However, there are some exceptions to this. Please speak to a lawyer regarding the specifics of your case to find out where to file.
Here are some basic examples:
- My children lived in Alabama their whole lives. We just moved to Maryland a few weeks ago. In my case, Alabama is my children’s “home state.” If I want to file for custody right now, I will probably need to file in Alabama.
- My children lived in Alabama until we moved to Maryland six months ago. Because the children have lived in Maryland for six months, and there were no prior custody cases in Alabama, Maryland is their “home state.” I will likely need to file for custody in Maryland.
- My children lived in Maryland until they left to live with the other parent in Alabama two months ago. Because they haven’t lived in Alabama for six months yet, their home state is still Maryland. If I want to file for custody, I can most likely file in Maryland.
1 Md. Code, Fam. Law § 9.5-201
2 Md. Code, Fam. Law § 9.5-101(h)
3 Md. Code, Fam. Law § 9.5-201(a)(1)
Are there exceptions to the "home state rule?"
There are two main exceptions to the home state rule. Please note that this can be complicated, and we strongly suggest you talk to a lawyer before filing anything – if there are two states involved, you may want to get advice from a lawyer in each. Go to our Maryland Finding a Lawyer page for legal referrals. You can also select the other state from the drop-down menu to find legal referrals in that state.
First, if there is no home state or if the home state has agreed to let another state have jurisdiction, you may be able to file for custody in another state if:
- The child and at least one parent or a person acting as a parent, have significant connections with the state; and
- There is important evidence in the state about the child’s care, protection, training, and personal relationships.1
Second, you may also be able to file for temporary emergency custody in a state other than the home state, if the child is present in the state where you want to file and at least one of the following is true:
- The child has been abandoned; or
- Emergency custody is necessary to protect the child because the child, a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.2
1 Md. Code, Fam. Law § 9.5-201(a)(2); see §§ 9.5-207 through 9.5-208
2 Md. Code, Fam. Law § 9.5-204(a)
Do I need a lawyer?
You do not need a lawyer to file for custody. However, it may be difficult for you to file a proper petition and to represent yourself in court without the help of a lawyer. As with all custody issues, it is strongly suggested that you try to get a lawyer to help you, especially if the other parent has a lawyer. For a list of legal resources, some of which may be able to help for free or low cost, please see our Maryland Finding a Lawyer page.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
