Child Custody: Sole Custody, Joint Custody, Shared custody, and Primary custody in Annapolis, Maryland is one of the areas of family law that is rife with mischief. Part of the problem is that there are different kinds of custody (i.e. physical and legal), which is not intuitive to laypersons. In addition, our common sense understanding of the terms “sole custody” “joint custody” “primary custody” “shared custody” do not comport with the legal meaning of such terms. And to make matters worse, lawyers and courts will use some of these terms interchangeably without explaining in plain language what is meant to the parties. It is no wonder that parents can find themselves entering into custody agreements and orders that do not reflect their wishes or intentions. I tackle just one of the questions or misunderstandings related to child custody and access in this week’s Wednesday posting.
If a parent is awarded sole physical custody of a child, does this mean that the other parent has no access rights to the child?
No. Unless a parent’s rights have been terminated by a court order, a parent retains a fundamental right to access to his/her child. And just so that there is no misunderstanding, a consent order or court order after a merits hearing, in which one parent is given primary or sole physical custody of a child does not terminate the access rights or any other legal rights of the noncustodial parent.
The most typical situations in which parental rights are terminated occur where either a parent is voluntarily surrendering his/her parental rights to allow the child to be adopted or the parental rights are being terminated involuntarily where a child has been abused or severely neglected. Because of the seriousness and irrevocability of a termination of parental rights, this is not usually something that a parent would choose without considerable thought.
Furthermore, a parent does not eliminate his/her child support obligation by “signing over (physical) custody” of a child to the other parent. As I explained in a prior posting, Maryland Family law imposes a duty on both parents to financially support the child whether the parent is having regular access to the child or not.
In the circumstance in which a parent is voluntarily agreeing to allow primary physical custody to abide with the other parent, it is still important for the non-custodial parent to obtain an access schedule to identify specific dates and times in which the noncustodial parent is to have access with his/her child. Too often, parties who are representing themselves in family law matters agree to custodial agreements with very ambiguous language matters agree to custodial agreements with very ambiguous language promising “liberal access” to the noncustodial parent without a specific access schedule.
This is a recipe for disaster for a host of reasons! One, the noncustodial parent is placed in the position of a supplicant begging for access to his/her own child, completely subject to the whims of the custodial parent with regards to the granting of such access. Two, it is very difficult to bring a contempt action against a custodial parent who is arbitrarily denying the noncustodial parent access when the parties’ agreement or court order does not specify exact dates and times for access to the non-custodial parent. In short, get an access schedule — the more detailed the better. If a parent wants access to his/her child on the child’s birthday put it in writing. It may not happen otherwise. And you cannot count on the custodial parent being charitable or generous towards you when it comes to allowing access that is not court-ordered. As Benjamin Franklin said, “An ounce of prevention is worth a pound of cure”.