By Jill H. Breslau

Historically, in Maryland, there was a time when the father was the preferred custodian for the children, since he had the duty to provide for their protection, education, and maintenance.

Later, there was a maternal preference, especially in the case of young children, called the Tender Years Doctrine. Now, the law requires that neither parent be given preference solely because of his or her sex.

The standard for determining custody is the Best Interest Standard; that is, what arrangement for access to both parents will be in the best interest of the child. There are many criteria for Best Interest, but the court has broad discretion to make decisions. Factors considered in custody disputes include the fitness of the parents, their character and reputation, what the parents want and what agreements they may have reached, the preference of a child who is old enough to form “a rational judgment,” the age, health, and sex of the child, and such other factors as whether there has been abandonment, abuse, or adultery (if detrimental to the child).

What does that mean, in practice? Statistics reflect that in the vast majority of divorces, mothers get primary custody—whether by agreement or by court order. Why? Because the law looks backward to determine the future. Whatever circumstances have existed before carry the most weight in a court’s determination about what ought to happen in the future. So if a mother has been the person who has taken the children to the doctor, if she knows their teachers and their clothing sizes and who their friends are, if she has made the babysitter arrangements and play dates and handled most of the day-to-day decision-making and discipline of the children, she will have a good chance of obtaining custody.