Securing Primary Physical Custody of Your Children in Maryland, Even if Your Ex-Spouse Was a Stay-at-Home Parent

When your marriage comes to an end, there are many things that must be resolved, one of which is custody of the children. In the past, you may have worked full-time outside the home to provide for the family financially while your spouse was a stay-at-home caregiver. Just because your spouse was the primary caregiver prior to the marriage’s end, that does not automatically mean that she is legally entitled to be the primary physical custodian after the divorce. The court must decide custody based on the best interest of the children and there is large list of legal factors the judge must look at, with past arrangements being only one factor among many.

In other words, if you desire to be your children’s primary physical custodian, do not despair just because your ex was a stay-at-home parent prior to the divorce. Instead, consult with an experienced Maryland family law attorney and learn more about how to pursue your goals in your case.

As an example of a case where the “stay-at-home” parent didn’t receive primary physical custody after the divorce, there’s the case of A.P. and J.P., who began divorce proceedings in 2017. The husband had been an active member of the U.S. Navy for more than a decade. The wife was very briefly employed during that time, but mostly stayed home to care for the children.

At the couple’s divorce trial, much of the evidence was of the “he-said-she-said” variety. The husband alleged that the wife was having an affair. (Both the wife and the lover testified but did not deny the affair.) The wife alleged that the husband was preoccupied with Internet porn and online gaming and was indifferent about the children. The judge ultimately awarded the father primary physical custody of the children, along with tie-breaking authority on all decisions regarding the children.

The mother appealed that ruling. The main thrust of her argument was that, because she had been the only primary caretaker the children had ever known in their lives, it could not possibly be in the best interest of the children for their father to have primary physical custody. The mother asserted that the trial judge improperly penalized her for her adultery.

The court again sided with the father. There are many, many factors that judges can look at to decide what it is in the children’s best interest. One thing is your ex-spouse’s adultery. Maryland does permit trial judges to include a parent’s extramarital affairs as a factor in deciding custody.

Using your ex’s time as primary caretaker as proof in your favor

Another thing that you can do, and which this father did, is to present proof that, although your ex was the primary caretaker, she didn’t actually do a very good job. J.P. gave the court evidence that the children were frequently tardy for school, had problems with excessive numbers of unexcused absences from school and one child had problems with numerous unsubmitted homework assignments. The mother also allegedly made unilateral decisions to take the kids on vacation and cause them to miss even more school as a result.

The father also had additional evidence of the mother’s lack of credibility. He had proof that, after the breakdown of each of the wife’s three marriages, she accused her husband of rape or sexual assault and that, each time, the claims were found to be unsubstantiated. In other words, the trial judge had far more upon which to find the wife not credible than just her adultery.

If you have done nothing to make you an “unfit” parent in the eyes of law in Maryland, then you have an opportunity to obtain primary physical custody of your children, regardless of who was the primary caretaker during the marriage. To learn more about your options for reaching your family’s goals, talk to knowledgeable Maryland family law attorney Anthony A. Fatemi, who has been diligently representing mothers, fathers and others in Maryland custody cases for many years. To learn more, contact us at 301-519-2801 or via our online form.

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