Maryland Custody Laws for Unmarried Parents

By Mary Jane Freeman
For unmarried parents, paternity must be established before a court can enter a custody order.

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In Maryland, as in all states, unmarried parents are entitled to the care, custody and control of their children, just as any other parent has this right. The only notable distinction between married and unmarried parents is that the court must establish the paternity of a father born to a single mother for the court to recognize a father’s custodial rights. Once that has been done, the parents can enter into a custody arrangement, either on their own or with the court’s help.

Establishing Paternity Is First Step

When a child’s parents are not married to one another, before the court can decide custody matters, the parents must establish paternity. In Maryland, paternity may be established by acknowledgment or by court order. Paternity is acknowledged when both parents sign an Affidavit of Parentage, which identifies the man who signs the document as the child's father. The parents can sign this affidavit at the hospital immediately after the child's birth, and the father's name can be added to the child's birth certificate at that time, as well. The parents can complete this affidavit after they leave the hospital, but in that case, they must return the signed and notarized document to the Division of Vital Records, instead of to the hospital. In the alternative, paternity can be established by genetic testing, which may be done voluntarily or ordered by the court.

Two Forms of Custody Available

Once the court has established paternity, either or both parents can seek custody of the child. Maryland recognizes both legal and physical custody. Legal custody is a parent's right to decide how a child will be raised; for example, where he will worship and attend school. Physical custody is a parent's right to provide a home for the child. One or both parents may have either form of custody. If parents share legal custody, they make child-rearing decisions together, and if they share physical custody, their child lives at both residences, and spends at least 35 percent of his time in each parent's home. If only one parent has physical custody, then typically, the other parent is granted visitation and pays child support.

Custody Based on Best Interests of the Child

In Maryland, unmarried parents are free to create their own custody and visitation agreements. Once they reach an agreement, they can submit a signed stipulation to the court, which sets forth the agreed-upon terms, along with a consent order. If the court approves the agreement, it will sign the consent order, which turns the parental agreement into a legally enforceable court order. If the parents cannot agree, however, they can ask the court to make this decision for them. In Maryland, the courts determine custody and visitation based on what is in the child's best interests. The court considers a variety of factors, which include the child's age, health and gender; the parents' fitness, character and reputation; the parents' ability to provide for the child and maintain family relationships; and in some cases, child's wishes.

Modification Available if Circumstances Change

Once custody is established, a parent can't change the order unless he can demonstrate a substantial change in circumstances and that the requested change is in the child's best interests. This is not a simple task, especially because Maryland courts consider the stability in a child's life to be of the utmost importance. The requesting parent must demonstrate that the current situation is putting the child's well-being at risk in some way. For example, if the parent with physical custody has become verbally abusive toward the child because that parent has become an alcoholic, then likely, the court will consider this to be a substantial change in circumstances, and will transfer custody to the other parent, who can better serve the child's interests.

About the Author

Based on the West Coast, Mary Jane Freeman has been writing professionally since 1994, specializing in the topics of business and law. Freeman's work has appeared in a variety of publications, including LegalZoom, Essence, Reuters and Chicago Sun-Times. Freeman holds a Master of Science in public policy and management and Juris Doctor. Freeman is self-employed and works as a policy analyst and legal consultant.

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