Best Interest of the Child
Q: My husband currently has custody of our three children, but he is suffering from a mental disease which I think is negatively affecting them. Can I obtain physical custody of my three children?
A: In deciding whether you can obtain physical custody, the court will look at a series of factors, none of which are controlling. While your husband’s mental condition is a factor, the court will also look at your children’s best interests. For example, in a case with similar facts, a four year old was separated from his siblings because the court felt that the parent’s mental disease would be more detrimental to him than to the siblings who were older and could understand what was wrong with their parent who had the mental disease.
Q: My wife and I made an agreement over two years ago that each of our two sons would live with one of us. Will a court require them to both live in one household?
A: It depends on which “best interest” factors the courts will place emphasis. Courts have upheld the separation where it did not cause any physical, mental, or emotional adverse effects.
Q: My husband and I have been at each other’s throats for the past two years. We do not get along like a married couple should. The only thing we have in common now is our children whom we both dearly love. When we divorce, who is going to get custody of our children?
A: In determining whether you and your husband can obtain joint physical or legal custody, the court will look at what is in the best interests of your children based on a series of factors such as your ability to get along, the geographic distance between you and your spouse, and your financial status, among others. As to the lack of communication between you and your husband, if the tension between you seems more permanent in nature, the court may award sole physical custody to only one of you, although visitation rights will be granted to the other. If you and your husband want to share physical and legal custody, then it is better for you both to begin to communicate with each other.
Q: What will happen to my custody rights if I prevent my ex-spouse from seeing our children or move to Canada with them without telling my ex-spouse?
A: The court will look at the best interests of the child in its totality in determining the fair outcome. For example, if you decide to move to Canada with your children without informing your spouse, the court may see you as denying a “natural and legal right” to visitation and therefore not acting in the “best interests of the child.” As a result, you may lose custody of your children. Similarly, it could likely be the same outcome if you purposefully exclude your spouse from seeing your children.
Modification of Child Custody Orders
Q: When would a lifestyle change generally threaten or harm a child?
A: Every case is different and what a judge would consider a change in circumstance depends on his or her viewpoint. Generally though, where a custodial parent begins to work late at night, leaving his or her minor child at home alone, the non-custodial parent may have a right to request a custody modification. Alternatively, where a non-custodial parent begins to drink heavily, the custodial parent may request a modification of the visitation order allowing the child to visit only when the non-custodial parent is sober.
Q: My husband received custody of our children after we divorced because I cheated on him. Will my cheating have any effect on my visitation rights?
A: The court will look at the best interests of the child in determining your visitation rights. Nevertheless, your visitation rights should not be denied solely on the ground of your marital misconduct. The only way it may be denied is if there are exceptional circumstances that may be injurious to your children’s welfare.
Q: What are the child support consequences to me if my 15 year old daughter just had a baby but has no money to take care of him?
A: As a grandparent, you can be held responsible for the support of the child if neither parent has any income and are minors. Therefore, your support of your daughter will be expanded to the extent that your daughter, and the baby’s father, have insufficient money to fulfill their child support obligations.
Q: What is not considered actual income?
A: It does not include benefits received from public assistance programs, including temporary cash assistance, Supplemental Security Income, food stamps, and transitional emergency, medical, and housing assitance.
Q: What expenses are generally included in determining child support payments?
A: Your children’s expenses can be broken down into two categories: discretionary and basic obligations. Discretionary expenses are recreational activities such as karate classes while basic obligations, which are split between the parents, include day care and braces. Discretionary expenses are not included in calculating each parent’s support obligations.
Q: For the past year, I have been paying $400 in child support per month, when I was only required to pay $300. Can I get the $1200 of overpayment back?
A: No. The court will not order the money to be returned for something that was your fault.
Q: My son’s father is very wealthy, but I am not at all. I want to obtain child support payments for my son who has always lived with me. How much support am I entitled to receive?
A: You are likely entitled to an amount equal to the standard of living your son would have enjoyed if you and your son’s father would have remained together. In terms of finances, the law does not distinguish between children whose parents were married and those whose were not. Therefore, if your son would have enjoyed a better standard of living if you had remained with his father, then your son is entitled to that same amount of support.
Q: I recently moved to a rural area with my second wife where the level of income is significantly lower than where I previously lived. I cannot afford to make the regular child support payments which I am required to make. Will I be considered to have voluntarily impoverished myself?
A: Whether your move will be problematic depends on various factors including whether you continued in the same occupation after your move and how long after your divorce you moved. Most likely, your move will not be a problem since a court cannot control where you will live (i.e., living in the highest wage earning area) and would not want to use the child support payments as a restriction on your mobility.
Q: My ex-husband has been, and wants to be, a student his entire life. He was a student before we married and before we had any children. He has never worked and has been supported by family and friends his whole life. Will the court consider him to have voluntarily impoverished himself, eventhough he has no income to reduce?
A: The answer depends on whether your ex-husband chose to remain a student and unemployed his entire life. If so, it is likely that he will be found to have voluntarily impoverished himself. On the other hand, if your ex-husband made efforts to alter his life after the birth of your children by finding steady income while studying, then it is possible he will not be considered to have voluntarily impoverished himself. Generally, however, a parent who decides to live in poverty cannot preclude his or her child from enjoying the necessities of life and, instead, must try and change their lifestyle to meet their support obligation.
Q: I want to quit my high-salaried job and pursue the job that has been my dream since I was a child. The new job pays about minimum wage. How will this affect my child support obligations?
A: It would depend on the significance of the change in salary, which in this case seems quite dramatic, and/or your history of making child support payments on time. By changing jobs, if you cause your income to drop, for example, from $80,000 per year to $20,000 per year and/or if you have a history of avoiding support payments in the past, a court may be forced to order you to pay child support based on a potential income, i.e., the court will impute income to you as though you were continuing in the high salaried job.
Modification of Child Support
Q: I and my wife agreed in our divorce that I would pay $100 per month of child support until each child of ours reached the age of 21. The eldest child just turned 18 and, at the same time, we agreed to increase support payments to $350. What is the effect of his turning 18?
A: The primary effect will be that the modification will be void as applied to your eldest. Since the age of majority in Maryland is 18, the modification of child support of $350 will only apply to your other children. As to your eldest, the payments will continue to be $100 per month.