By Samantha Stephan, CFCC Student Fellow, Fall 2020

Child custody determinations are based on what is in the best interests of the child. Courts and the Maryland legislature have left the term “best interests of the child” defined broadly. Instead of a statutory definition containing specificity, which many states have, courts in Maryland consider a set of factors from case law when determining the best interests of the child in custody disputes. Factors include:

the fitness of the parents; the character and reputation of the parties; the requests of each parent and the sincerity of the requests; any agreements between the parties; the willingness of the parents to share custody; each parent’s ability to maintain the child’s relationships with the other parent, siblings, relatives, and any other person who may psychologically affect the child’s best interest; the age and number of children each parent has in the household; the preference of the child, when the child is of sufficient age and capacity to form a rational judgment; the capacity of the parents to communicate and reach shared decisions affecting the child’s welfare; the geographic proximity of the parents’ residences and opportunities for time with each parent; the ability of each parent to maintain a stable and appropriate home for the child; the financial status of the parents; the demands of parental employment and opportunities for time with the child; the age, health, and sex of the child; the relationship established between the child and each parent; the length of the separation of the parents; whether there was a prior voluntary abandonment or surrender of custody of the child; the potential disruption of the child’s social and school life; any impact on state or federal assistance; the benefit a parent may receive from an award of joint physical custody and how that will enable the parent to bestow more benefit upon the child; and any other consideration the court determines is relevant to the best interest of the child.[1]                                                                                   

In an action where custody, visitation rights, or the amount of support of a minor child are contested, the court may appoint a lawyer who shall serve as a best interest attorney to represent the minor child. Md. Code, Family Law §1-202.

Appointment of a best interest attorney may be most appropriate in cases involving high levels of conflict between the parents; inappropriate adult influence or manipulation; past or current child abuse or neglect; past or current mental health problems of the child or party; special needs of the child, including physical, educational or mental, that require investigation or advocacy; family violence; or substance abuse. Md. Rule §9-205.1(b).

Courts do not appoint a best interests attorney in every visitation or child custody case. If the court finds there are other adequate methods of obtaining information, either through a social services investigation or an evaluation by mental health professionals, the court often utilizes those services before appointing an attorney for the child.

This begs the question: How are the best interests of the child accurately considered and determined if the appointment of a best interest attorney is not warranted?

The National Family Resiliency Center can help compensate in cases where courts have not appointed attorneys for children. Located in Howard County, the National Family Resiliency Center has created a child-focused approach to cases involving divorce, separation, or any other family transition problems that families face. The National Family Resiliency Center’s assistance begins with an orientation or intake assessment of the family as a unit and of the parents and children individually. Parents then participate in a six-hour parenting education program. Parents hear from former participants in the program and also from counselors.

After orientation and the parenting education program, parents work with a practitioner to develop a parenting plan. Every single element related to a child’s well-being is worked out in this plan, down to the minute details of which parent will drop off the child at extra-curricular activities on given days. The child’s needs are considered through post-secondary education years. The family and the practitioner develop the plan in congruence with the child’s teachers, pediatricians, and other health care providers. The child’s mental, emotional, and physical needs are considered at different developmental stages, and the parenting plan details how the family will adjust to best serve the child’s needs during each of those phases. Family and individual counseling is available to families, especially if mediation is unsuccessful. The National Family Resiliency Center continues working with the family as long as necessary.

If the family can agree to a parenting plan, the family can present this plan to the court.  The court can incorporate the terms of the plan into the order granting custody and/or visitation in accordance with Md. Code, Family Law § 9-204.1.

Are the courts the proper entity to determine what is in the best interests of the child? Are judicial officers capable and equipped with the training and understanding necessary to know what is in the best interests of the child? Are the best interests of the child properly and accurately represented in a custody dispute where a best interest attorney has not been appointed? Are the resources and training provided by the National Family Resiliency Center necessary for all cases involving families and children? Should the Maryland legislature enact authority that mandates the appointment of a best interests attorney in all cases involving children?

These questions are the same questions I pose for myself and strive to answer during the budding stages of my legal career. I hope to advocate for the best interests of children with legal colleagues and numerous others.

*See generally, Karen Blaisure & Margie Geasler, Educational Interventions for Separating and Divorcing Parents and Their Children, Handbook of Divorce and Relationship Dissolution 575 (M. A. Fine & J. H. Harvey (Eds.)) (2006).

**[1] See Taylor v. Taylor, 306 Md. 290 (1986). See also, Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1977).