Judicial discretion in custody determinations and the need for strong advocacy, P.1

Judicial discretion is an important concept to understand for parents entering into the divorce process with children. The concept is particularly important in the context of child custody decision-making, because there are very few hard and fast rules when it comes to child custody, especially when both parents are fit and do not have a history of abuse or neglect.

When two capable parents cannot agree on a child custody arrangement, it falls to the courts to resolve the matter. Judges in family court have broad discretion in making child custody decisions, but the central issue in any case is the best interests of the child. The term is to be understood in a broad sense, and involves a consideration of various factors.

In Maryland, the courts have taken into consideration a variety of factors relating to the best interests of children involved in custody decisions. These include factors relating to each parent, factors relating to the child, and factors pertaining to the relationship between each parent and the child.

With respect to the parents, courts look at things like: fitness; character and reputation; where each parent lives; the material resources each parent is able to offer the child; and whether there was any abandonment, abuse, or adultery. With respect to the child, courts will consider the child’s age, sex, health, and needs, as well as the child’s desires. Court will certainly also take into account things like the relationship between the parents and the child, including the length of separation from a parent.

In our next post, we’ll continue looking at this topic and parents’ need for effective advocacy in child custody cases.