Under Maryland law, the safety and well-being of the child are the primary considerations in any custody determination. This includes protecting the child from exposure to domestic violence. Domestic violence is defined under Maryland law as any act of abuse committed against a current or former spouse, a cohabitant, or a person with whom the abuser has had a child.

Domestic Violence & Denial or Restrictions on Visitation

In cases where domestic violence has occurred, the court will generally favor the non-abusive parent when determining child custody. The relevant statute is Md. Code, Fam. Law § 9-101, which is titled, “Rejection of custody or visitation if abuse likely.” The statute provides:

Determine if abuse or neglect is likely
(a) 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 shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.

Deny custody or visitation if abuse likely
(b) Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child.

In other words, the statute provides for a rebuttable presumption that it is not in the best interests of the child to award custody to a parent who has engaged in domestic violence. However, the court may still award joint custody if it finds that it is in the best interests of the child and that appropriate safeguards can be put in place to protect the child and the non-abusive parent.

It is important to note that even in cases where there is no history of domestic violence, the court may still consider the potential for future violence when determining custody. If the court has concerns about the safety of the child or the non-abusive parent, it may impose conditions on the abusive parent’s custody or visitation rights, such as requiring supervision or ordering the abusive parent to attend treatment or counseling.

Factors Considered in Child Custody Cases Involving Domestic Violence

When a court is considering custody in a case where there is a history of domestic violence, the court may consider any factor related to the surrounding circumstances, including:

• The nature, extent, and severity of the domestic violence, including any history of abuse against the child or other family member;

• The impact of the domestic violence on the child, including any emotional or psychological harm;

• The abuser’s willingness and ability to participate in a custody evaluation and comply with any recommendations made as a result of the evaluation;

• The abuser’s willingness and ability to cooperate with the other parent in co-parenting the child; and

• The abuser’s willingness and ability to attend and complete any treatment programs or counseling recommended by the court.

In Maryland, there is a rebuttable presumption that it is not in the best interests of the child to award custody to a parent who has engaged in domestic violence. This means that the abusive parent has the burden of proving that awarding them custody is in the child’s best interests, despite the history of abuse.

An example of when a parent with a history of domestic abuse may regain their parental rights was seen in the case of Gizzo v. Gerstman, 245 Md. App. 168 (2020). There, the mother had previously been convicted of assaulting the father and had also served time in connection with child abuse charges. Two years after the incarceration, a court determined that it was safe for her to have primary custody of the child. The decision was mainly based on the facts that (a) in the two-year period, the mother had proven able to raise her new husband’s child without any incidents of abuse, and (b) the father did not even live with the child because he had the child live with the grandparents.

Summary

In a custody case involving domestic violence, the trial court must protect the welfare of the child by considering all of the surrounding circumstances, including the nature, extent, and severity of the domestic violence, the impact of the domestic violence on the child, and the abuser’s willingness and ability to participate in a custody evaluation and comply with any recommendations made as a result of the evaluation. A rebuttable presumption exists that it is not in the best interests of the child to award custody to a parent who has engaged in domestic violence. The burden is on the abusive parent to prove otherwise.

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