HB 505
Department of Legislative Services
Maryland General Assembly
2021 Session
FISCAL AND POLICY NOTE
Third Reader - Revised
House Bill 505 (Delegate Dumais)
Judiciary Judicial Proceedings
Child Custody - Legal Decision Making and Parenting Time
This bill alters provisions of law relating to child custody and visitation proceedings and
establishes numerous factors for courts to consider in cases involving “legal decision
making” and “parenting time.”
Fiscal Summary
State Effect: The bill does not materially affect the operations or finances of the Judiciary.
Local Effect: The bill does not materially affect the operations or finances of the circuit
courts.
Small Business Effect: None.
Analysis
Bill Summary:
Legal Decision Making and Parenting Time
“Legal decision making” means the right and obligation to make major long-term decisions
involving medical care, mental health, education, religious training, extracurricular
activities, and other matters of major significance concerning the child’s life and welfare.
Legal decision making is also known as legal custody.
“Parenting time” means the time the child is in a parent’s care according to an agreement
or court-ordered schedule and the right and obligation of a parent to provide a home for the
child, address the child’s needs, and make the day-to-day decisions required during the
time the child is with that parent. Parenting time is also known as physical custody,
visitation, or access.
The bill alters numerous references to the terms “child custody” and “visitation” to
“legal decision making” and “parenting time.” The bill establishes that if the parents live
apart, a court may award legal decision making or parenting time to either parent or jointly
to both parents. Neither parent is presumed to have any right to legal decision making or
parenting time that is superior to the right of the other parent.
Legal Decision Making and Parental Responsibility – Judicial Determinations
The bill establishes a new subtitle that specifies numerous factors for judicial consideration
in cases involving legal decision making and parental responsibility. The purpose of the
provisions include (1) promoting stability and long-term health and welfare for children by
specified methods; (2) providing children with physical and emotional security and
protection from exposure to conflict and violence; and (3) providing for an expeditious,
thoughtful, and consistent process for decision making by courts to protect the best interests
of children.
Subject to specified statutory provisions regarding evidence of abuse and neglect and
individuals with specified convictions, in determining what legal decision making
authority and parenting time is in the best interest of the child, the court may consider
specified factors, including:
whether and how parties who do not live together will share the rights and
responsibilities of raising the child;
the child’s relationship with each party, any siblings, other relatives, and individuals
who are or may become important in the child’s life;
the child’s physical and emotional security and protection from conflict and
violence;
the child’s developmental needs, including physical safety, emotional security,
positive self-image, interpersonal skills, and intellectual and cognitive growth;
the day-to-day needs of the child, including specified items;
how to place the child’s needs above the parties’ needs; protect the child from the
negative effects of any conflict between the parties; and maintain the child’s
relationship with other individuals, as specified;
each party’s role and tasks related to the child and how, if at all, those roles and
tasks have changed; and
any other factor that the court considers appropriate in determining how to best serve
the physical, developmental, and emotional needs of the child.
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The court must articulate its findings of fact on the record or in a written opinion, as
specified.
Legal Decision Making
If the court determines that the parties are able to communicate and reach joint decisions
concerning some or all of the child’s needs as described above, the court may award
(1) joint legal decision making to both parties; (2) joint legal decision making to both
parties, designating one party to make final decisions if the parties are unable to agree after
a thorough discussion of the issues; or (3) joint legal decision making to both parties,
allocating responsibility for specific issues to each party, if the parties are unable to agree
after a thorough discussion of the issues.
If the court awards joint legal decision making authority to both parties, neither party,
without agreement of the other party or order of the court, may unilaterally make decisions
involving the child’s health, education, religion, culture, or medical care or any other matter
of major significance concerning the child’s life or welfare.
Modifications
The court may modify a child custody or visitation order or a legal decision making or
parenting time order if the court determines that there has been a material change in
circumstances since the issuance of the order that relates to the needs of the child or the
ability of the parties to meet those needs. A party’s proposal to relocate the residence of
the party or the child in a way that would cause parenting time to be impracticable
constitutes a material change in circumstances.
Disability
The bill repeals provisions relating to disabilities and how the disability of a party may be
considered in making decisions regarding custody or visitation.
Current Law:
Child Custody Determinations
Maryland courts resolve child custody disputes based on a determination of “what is in the
child’s best interests.” However, the factors to be considered by a court in making such a
determination are not specified in statute but have instead been developed through case
law. The criteria for judicial determination include, but are not limited to (1) the fitness of
the parents; (2) the character and reputation of the parents; (3) the desire of the natural
parents and any agreements between them; (4) the potential for maintaining natural family
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relations; (5) the preference of the child, when the child is of sufficient age and capacity to
form a rational judgment; (6) material opportunities affecting the future life of the child;
(7) the age, health, and sex of the child; (8) the residences of the parents and the opportunity
for visitation; (9) the length of the separation of the parents; and (10) whether there was a
prior voluntary abandonment or surrender of custody of the child. Montgomery County v.
Sanders, 38 Md. App. 406 (1977).
Traditionally, when one parent was granted “custody” of a minor child, the other parent
would generally be awarded visitation rights. In 1984, the Court of Appeals first recognized
and applied the concept of “joint custody.” See Taylor v. Taylor, 306 Md. 290 (1986). The
Taylor Court explained that, within the meaning of “custody” are the concepts of “legal”
and “physical” custody. Legal custody means the right and obligation to make long-range
decisions involving the education, religious training, discipline, medical care, and other
matters of major significance concerning the child’s life and welfare. With joint legal
custody, both parents have an equal voice in making those decisions and neither parent’s
rights are superior to the other. Physical custody means the right and obligation to provide
a home for the child and to make the day-to-day decisions required during the time the
child is actually with the parent having such custody. Joint physical custody is in reality,
“shared” or “divided” custody with the child in the physical custody of each parent for
periods of time that may or may not be on a 50/50 basis. Taylor at 296-297.
In addition to the factors set forth in the Sanders decision, a court considering an award of
joint custody must also examine a range of factors particularly relevant to a determination
of joint custody, including (1) the capacity of the parents to communicate and reach shared
decisions affecting the child’s welfare; (2) the willingness of the parents to share custody;
(3) the fitness of the parents; (4) the relationship established between the child and each
parent; (5) the preference of the child; (6) the potential disruption of the child’s social and
school life; (7) the geographic proximity of parental homes; (8) the demands of parental
employment; (9) the age and number of children; (10) the sincerity of the parents’ request;
(11) the financial status of the parents; (12) any impact on State or federal assistance;
(13) the benefit to the parents; and (14) any other factors the court considers appropriate.
Taylor at 304-311. The Taylor Court emphasized that the single most important factor in
the determination of whether an award of joint legal custody is appropriate is the capacity
of the parents to communicate and to reach shared decisions affecting the child’s welfare.
Taylor at 305.
Custody – Evidence of Abuse or Neglect
In any custody or visitation proceeding, if the court has reasonable grounds to believe that
a child has been abused or neglected by a party to the proceeding, the court must determine
whether abuse or neglect is likely to occur if custody or visitation rights are granted to the
party. Unless the court specifically finds that there is no likelihood of further child abuse
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or neglect by the party, the court must deny custody or visitation rights to that party.
However, the court is authorized to approve a supervised visitation arrangement that
assures the safety and physiological, psychological, and emotional well-being of the child.
The court must consider evidence of abuse by a party against the other parent of the party’s
child, the party’s spouse, or any child residing within the party’s household, including a
child other than the child who is the subject of the custody or visitation proceeding. If the
court finds that the party has committed abuse against any of these individuals, it must
make arrangements for custody or visitation that best protect the child who is the subject
of the proceeding and the victim of the abuse.
Custody – Parents with Specified Convictions
Unless good cause for the award of custody or visitation with a child is shown by clear and
convincing evidence, a court may not award custody or visitation to a parent who has been
found guilty of first- or second-degree murder (or similar acts in another jurisdiction) of
specified individuals. If it is in the best interest of the child, however, a court may approve
a supervised visitation arrangement that assures the safety and the psychological,
physiological, and emotional well-being of the child.
Disability
“Disability” is defined as (1) a physical or mental impairment that substantially limits
one or more of an individual’s major life activities; (2) a record of having a physical or
mental impairment that substantially limits one or more of an individual’s major life
activities; or (3) being regarded as having a physical or mental impairment that
substantially limits one or more of an individual’s major life activities. In addition,
“disability” must be construed in accordance with the Americans with Disabilities
Amendments Act of 2008. In any custody or visitation proceeding, a disability of a party
is relevant only to the extent that the court finds, based on evidence in the record, that the
disability affects the best interest of the child. The party alleging that the disability of the
other party affects the best interest of the child bears the burden of proof. If the burden of
proof is met, the party who has a disability must have an opportunity to prove that
“supportive parenting services” would prevent a finding that the disability affects the best
interest of the child. If the court finds that a party’s disability affects the child’s best interest
and denies or limits custody or visitation, the court must specifically state in writing the
basis for the finding and its reasoning regarding supportive parenting services, as specified.
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Additional Information
Prior Introductions: HB 1328 of 2020, a similar bill, received a hearing in the House
Judiciary Committee, but no further action was taken. HB 1032 of 2018, a similar bill,
received a hearing in the House Judiciary Committee but was subsequently withdrawn. Its
cross file, SB 684, received an unfavorable report from the Senate Judicial Proceedings
Committee. SB 368 of 2017, a similar bill, received a hearing in the Senate Judicial
Proceedings Committee, but no further action was taken. HB 508 of 2017, a similar bill,
received a hearing in the House Judiciary Committee, but no further action was taken.
Similar bills were also introduced in 2016 and 2015.
Designated Cross File: None.
Information Source(s): Judiciary (Administrative Office of the Courts); Department of
Human Services; Department of Legislative Services
Fiscal Note History: First Reader - February 16, 2021
an/lgc Third Reader - March 18, 2021
Revised - Amendment(s) - March 18, 2021
Analysis by: Jennifer K. Botts Direct Inquiries to:
(410) 946-5510
(301) 970-5510
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Statutes affected: Text - First - Child Custody - Legal Decision Making and Parenting Time: 5-203 Family Law, 9-101 Family Law, 9-103 Family Law, 9-201 Family Law, 9-202 Family Law, 9-203 Family Law, 9-204 Family Law
Text - Third - Child Custody - Legal Decision Making and Parenting Time: 5-203 Family Law, 9-101 Family Law, 9-103 Family Law, 9-201 Family Law, 9-202 Family Law, 9-203 Family Law, 9-204 Family Law