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Modification of CHILD CUSTODY
In a Divorce in Maryland even after the
case is done and the judgment of divorce is final the Court
still retains the jurisdiction and power to modify custody,
child support and visitations. As to custody and visitation,
these can be modified by the court on a petition for
modification of custody and visitation filed in the jurisdiction
where the child presently lives. This is true even if that is
not the same location where the divorce decree was entered.
However, in order to prevail on the petition for modification
you must prove two things. First you must prove there has been a
material change of circumstances. Second you must prove it is in
the child's best interest to change custody. It is important to
prove not just that things have changed like the child is older.
Rather you have to prove things have changed in a material way.
The court will not allow the non custodial parent to relitigate
the same issues over and over. In
Robinson v. Robinson, 328 Md. 507, 615 A.2d 1190 (1992), the
court stated the primary concern to a judge in awarding custody
to one parent over the other is the best interests of the child.
The courts in a divorce in Maryland have repeatedly stated the
list of factors:
“For the purpose of ascertaining what is likely
to be in the best interests and welfare of a child a
court may properly consider, among other things, the
fitness of the persons seeking custody, the
adaptability of the prospective custodian to the
task, the age, sex and health of the child, the
physical, spiritual and moral well-being of the
child, the environment and surroundings in which the
child will be reared, the influences likely to be
exerted on the child, and, if he or she is old
enough to make a rational choice, the preference of
the child. It stands to reason that the fitness of a
person to have custody is of vital importance. The
paramount consideration, however,
is the general overall well-being of the child.”
A change in circumstances has been required for a change of
custody. In McCready v. McCready, 323 Md. 476, 593 A.2d
1128 (1991), Judge McAuliffe said for the Court the question of
whether there has been a material change in circumstances which
relates to the welfare of the child is, however, often of
importance in a custody case. The desirability of maintaining
stability in the life of a child is well recognized, and a
change in custody may disturb that stability.
Stability is not, however, the sole reason for ordinarily
requiring proof of a change in circumstances to justify a
modification of an existing custody order. A litigious or
disappointed parent must not be permitted to relitigate
questions of custody endlessly upon the same facts, hoping to
find a chancellor sympathetic to his or her claim.
An order determining custody must be afforded some finality,
even though it may subsequently be modified when changes so
warrant to protect the best interest of the child. As we said in
Hardisty v. Salerno, 255 Md. 436, 439, 258 A.2d 209
(1969), ‘while custody decrees are never final in Maryland, any
reconsideration of a decree should emphasize changes in
circumstances which have occurred subsequent to the last court
hearing.’ See Sharp, Modification of
Agreement-Based Custody Decrees: Unitary or Dual Standard?,
68 Va.L.Rev. 1263, 1266-71 (1982).
I customarily advise my clients, if you are seeking a change in
custody things have to have changed. The court generally will
not fix it if it is not broken. You have to prove the child is
not doing well under the present living arraignments. For
example, but not by way of limitation, the grades are slipping,
the child is not socializing, not eating, not sleeping,
digressing in behavior, the custodial parent is not caring for
the child and all this is different then it was when the court
originally entered their order. As such it is now in the child's
best interest to change the custody.
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