Of Counsel, Z Famiy Law, LLC Rockville, Maryland Family Law Attorney Serving MontgomeryCount and FrederickCounty
Modification of Child Custody (or Visitation)
Courts may modify agreements between parents concerning custody and visitation in a child's best interests. After a court enters an order of custody or visitation (including an order approving and incorporating the parents' agreement into its order), the order may be modified only upon a showing of changed circumstances affecting the child's welfare. Parental relocation is one type of circumstance that may cause the court to evaluate anew the child's best interests. The discussion below addresses "material changed circumstances" and also addresses some practical aspects of modification of custody from the perspective of the relocating parent, parent left behind, the child, and the court.
Pursuant to FL § 8-103(a), a trial court has discretion to modify any provision of an agreement between parents concerning the "care, custody, education, or support of any minor child" of theirs if the modification would be in the children's best interests. See also Kovacs v. Kovacs, 98 Md. App. 289, 633 A.2d 425 (1993). The court is not bound by the parents' agreement if it would not be in the children's best interests, but the court would consider the parents' agreement as one of the many custody factors it considers in making its custody determination. The court does not have to accept the visitation schedule that has been agreed to by the parents. "Visitation is a matter affecting the best interest of the children and a matter over which the chancellor must exercise his or her own discretion." Odunukwe v. Odunukwe, 98 Md. App. 273, 633 A.2d 418 (1993).
Once a court enters an order concerning custody the court may modify a custody order upon a showing of a material change in circumstances affecting the child's welfare since the last court order. As will be discussed below, a parent's relocation may, in a given case, be sufficient to justify a change in custody. The result depends upon the circumstances of each case.
Changed Circumstances Affecting the Children's Welfare
The party seeking a modification of a child custody order has the burden of demonstrating why the court should modify custody.McAndrew v. McAndrew, 39 Md. App. 1, 382 A.2d 1081 (1978). The principle that an existing custody order ordinarily should not be modified in the absence of a showing of changes affecting the welfare of the children has two bases: Preventing relitigation of the same issues and the preservation of stability in custody cases.The question of changed circumstances may infrequently be a threshold question, but is more often involved in the "best interest" determination, where the question of stability is but a factor, albeit an important factor, to be considered.
Where a party is offering nothing new and is attempting to relitigate the earlier custody determination, the absence of a showing of a change in circumstances will be dispositive. There should be sufficient evidence of changes relating to the welfare of the children to justify a full consideration of whether modification of custody is required, and the parties should not simply be attempting to relitigate issues earlier resolved.
However, to determine that a modification is appropriate, the trial court is not required to wait until the changes have already caused identifiable harm to the children. It is sufficient if the trial court finds that changes have occurred which, when considered with all other relevant circumstances, require that a change in custody be made to accommodate the future best interest of the children. The benefit to a child of a stable custody situation is substantial, and must be carefully weighed against other perceived needs for change. See McCready v. McCready, 323 Md. 476, 593 A.2d 1128 (1991); and Domingues v. Johnson, 323 Md. 486, 593 A.2d 1133 (1991).
Visitation Modification - Same Standard.
Additionally, the "purpose underlying the material change requirement is the same, whether the requested change is in custody or in a visitation schedule . . . ."McMahon v. Piazze, 162 Md. App. 588, 875 A.2d 807 (2005).
Automatic Future Change in Custody: In Schaefer v. Cusack, 124 Md. App. 288, 722 A.2d 73 (1998), the Court of Special Appeals reversed the trial court's provision for an automatic change of custody at a future date. Custody of the parties' preschool child had been awarded to the mother with a change of custody to the father to occur 30 days following the child's completion of fifth grade.The Appellate Court found that ordering a change seven to eight years in the future was incomprehensible and contrary to existing law concerning modification of custody.
Final Merits Trial Decision Following Pendente Lite Situation. Following an order awarding custody pendente lite or where de facto custody exists with one parent prior to the court's ultimate decision, a final award of custody is not a "modification" so there is no requirement of a change in circumstances, and the standard is and continues to be what is in the best interest of the child. Kerns v. Kerns, 59 Md. App. 87, 97 (1984); McCready v. McCready, 323 Md. 476, 593 A.2d 1128 (1991); Kovacs v. Kovacs, 98 Md. App. 289, 633 A.2d 425 (1993).
Changes brought about by the relocation of a parent may, in a given case, be sufficient to justify a change in child custody. The result depends upon the circumstances of each case. The issue of stability may cut both ways in such a determination. For example, continued custody in the parent who is the primary caretaker would offer an important form of stability in the children's lives. However, permitting the children to remain in an area where they have always lived, where they may continue their association with their friends, and where they may maintain frequent contact with their extended family also provides a form of stability.
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John S. Weaver, Of Counsel
Z Family Law, LLC 51 Monroe Street, Suite 1501, Rockville, MD 20850