In Maryland child-custody falls into two categories: legal custody and physical custody.
Legal custody pertains to a parent’s decision-making authority regarding a child's health, education, and religious upbringing. Legal custody can be sole or joint. Physical custody, also called residential custody, is about where the child lives and a schedule of access for spending overnights with each parent. Residential custody can be shared or sole.
Sole residential custody means a child resides primarily with one parent. Every state is a little different, but in Maryland this means 127 or fewer overnights per year with the other (non-primary) parent. Conversely, shared residential custody means that a child resides with both parents, but with a schedule of access ranging from 128 to 237 overnights per year with each parent.
Regardless of the residential access schedule in place, in the context of legal custody, sole legal custody means that one parent has the right to make major decisions regarding a child’s health, education, and religious upbringing. This may or may not involve an exchange of information, or discussion with, the other parent or involve any rights of the other parent to participate in a child’s medical or school appointments or conferences.
However, joint legal custody means that both parents shall participate in such discussions, have access to regular information about the child, and are entitled to participate in medical appointments and school conferences.
While many parents say, or insist, that they want to share legal custody, please be aware that joint legal custody requires that the parents make these important welfare decisions together. Obviously, this is ideal when two parents have the same views toward child rearing; however, if the parents’ views are divergent, then serious problems can ensue.
To deal with this issue, Maryland law provides a further carve-out option for joint legal custody known as “joint legal custody with tie-breaking authority.” This means that if the parents disagree about a major issue pertaining to the welfare of the child, then one parent can be granted the right and authority to break the tie by making a final decision on the subject. In this situation, generally both parents are still extremely involved in the decision-making process, but if an impasse occurs, then the parent vested with “tie-breaking authority” can move forward so the child doesn’t suffer from the delay of inaction.
It is important to note that child custody is always modifiable and if a “tie-breaker” abuses authority, a court can be asked by the other parent to change legal custody if such a change would be in the child’s best interest. The ongoing modifiability of child custody provides incentive to a “tie-breaking” parent not to abuse his or her discretion.