Changing Child Custody Arrangements

January 31, 2025
The Law Offices of Brandon Bernstein, LLC

One of the most difficult parts of a divorce is the realization that your minor children will not be living with both of their parents. This is often a heartbreaking situation for all involved. There are many important practical considerations if you have decided to seek child custody. However, the most important legal principle in Maryland, and most other states, is that the best interest of the child is paramount. This means that, regardless of your point of view, the court will evaluate the situation according to the “best interest of the child” standard. 

Whether you’re a biological parent, a non-parent partner, or a grandparent, child custody in Maryland is not about winning the case but ensuring that the child’s welfare is safeguarded. Note that Maryland courts do not have a presumption of whether the father or mother is best suited to be the custodial parent. Rather, the court takes into account many factors, including the following:

  • The child’s age and gender
  • The child’s relationship with each parent
  • Each parent’s ability to provide a stable living environment 
  • The reputation and the character of each parent
  • Any history of violence in the household
  • The child’s preference, given they are of a suitable age to express it.

When parents have difficulty reaching a child custody agreement, it’s often a good idea to consider divorce mediation. Mediation takes place in a confidential forum where a trained mediator helps the parties reach a fair and, hopefully, lasting decision. The mediator’s role is to bring the parties together. A Maryland court has the power to order mediation if there is a stalemate and the parties do not voluntarily agree to divorce mediation.

So, let’s assume that after some period of negotiation, you and your spouse finally agree on child custody. Things go well for a period of time, and then something happens. One of the parents, or the child, decides to seek modification of custody. Is this possible, and, if so, what is the process?

Modification of a Child Custody Agreement

In Maryland, there is a distinction between legal and physical custody.  Legal custody refers to the right to make decisions about a child’s upbringing, including education, medical care, and religion. Physical custody refers to where the child lives and who takes care of them on a day-to-day basis.

In Maryland, parents are often awarded joint legal and physical custody. Joint legal custody means that both parents share equal decision-making power to make major decisions about the child’s welfare. One parent may also have joint legal custody with tie-breaking authority in the event the parents are not able to reach a joint decision. Joint physical custody means that the child spends significant time with both parents, although the time is not necessarily equal. Joint custody can work well if the parents can communicate effectively and put their differences aside for the sake of the child.

Sole legal custody means that one parent has the legal authority to make decisions concerning the child’s welfare. Sole physical custody is when one parent has the overwhelming majority of custody time of the minor children. For example, if one parent is deemed unfit due to substance abuse, neglect, or domestic violence, the other parent may be awarded sole custody.

Frequently, a party affected by the custody agreement seeks a modification of the custody agreement. Sometimes, a decision is voluntary, and sometimes, it is not. For example, let’s consider the case of a father who is being transferred far from his child’s school. The father has sole legal and physical custody but does not want to disrupt the child’s school situation. In this case, the parents may decide to modify the custody agreement so that the mother is granted joint or sole physical and/or legal custody. 

Note that there are also times when a custody modification is sought by the child. For the initial custody arrangement, the judge may have taken into account the child’s preference. However, it’s not uncommon for preferences to change over time due to any number of reasons, including a desire for a different lifestyle or a more attractive school option. In Maryland, a 16-year-old child may petition for a change in custody.

In all cases when one party or both parties seek to formally change the custody order, it is their burden to show the court why it should be changed. The court generally assumes that there was a strong factual basis for the original custody decision and that the status quo is best for the child unless proof can be given otherwise. To do this, there must be a showing that there has been a significant change of circumstances and that it is in the child’s best interests to make the proposed changes.  

If the other parent does not agree to the modification, a hearing will be set where both parties can present evidence to support their position. It is extremely important to have concrete, clear-cut evidence to prove why the modification is needed.

There is no clear and absolute limit to how many times a person can request a modification, but each such request must be based on a new, material change in circumstances affecting the child’s welfare.

Sometimes parents informally change their custody agreement between themselves and do not formalize it in court. This may not be problematic for separated or divorced parents with an honest and amiable relationship. However, to be fully protected from a legal perspective, most lawyers recommend that you formalize the modifications through the court process. An experienced Bethesda child custody attorney can help advise you on all of these points. 

Contact The Law Offices of Brandon Bernstein 

Family law has many subtle nuances, and establishing child custody rights can be particularly complex. At the Law Offices of Brandon Bernstein, we can help you with straightforward options and work with you and your partner to create novel co-parenting arrangements such as bird’s-nest custody.  Contact us today for a free consultation.