Modification of Child Custody and Visitation in Maryland

Modification of Custody

Once the court makes a child custody and visitation determination, the arrangement is very difficult to modify. Under Maryland law, a parent who wishes to modify a court order regarding custody and visitation must meet the heavy burden of proving that there has been a material change in circumstances. The inquiry does not end there. If the court agrees there has been a material change in circumstances, the petitioning parent must further demonstrate that, because of the change, modification is in the best interests of the child. The determination is equitable in nature, and thus left largely to the judge’s discretion.

Even though the determination is largely left to the almost complete discretion of the judge, Maryland jurisprudence does offer some appellate case law to guide the judge’s discretion. The open-ended nature of these cases, coupled with the subtle nuances in the applicable case law, is exactly why a person should retain a child custody lawyer rather than trying to handle the matter on their own.

Not Sufficient To Constitute Material Change In Circumstances

In order to put the legal standard in context, before turning to facts that do permit modification, it may be helpful to recognize fact patterns the courts have rejected. In Green v. Green, 188 Md. App. 661 (2009), the court held that a parent is not necessarily entitled to a modification of custody simply because he or she completes a rehabilitation program for substance abuse. Importantly however, the court was careful to note that (a) a drug test showed continued use of the substance despite completing the program, (b) there was evidence that the parent harbored a “casual attitude” toward the program’s treatment, and (c) witnesses testified that the parent continued to consume the substance in casual settings.

In McMahon v. Piazze, 162 Md. App. 588 (2005), the court again made it clear that a real, significant change is required to meet the material change in circumstances standard. There, the court denied modification where the only changes included the child aging and interacting with some new people in his home life. The court noted that these were normal life changes that occur with almost any child. Similarly, in Schaefer v. Cusak, the court held that a mere change in the child’s age or education level is insufficient. A more significant change is needed to disturb the underlying custody order.

Along these lines, the appellate courts have ruled that the sex of a parent is an inappropriate consideration. In Griffin v. Crane, 351 Md. 133 (1998), the mother petitioned for custody, arguing that her daughter had reached an age where she began to experience adult feminine issues that required the assistance and guidance of a mother. The court rejected the argument, noting that we live in an age of equality, and it would be discriminatory for the government to base a custody award on sex. The court denied modification.

Absent more, a parent’s dating habits are also insufficient to warrant a modification of custody and visitation. In Raible v. Raible, 242 Md. 586 (1966), the court ruled that modification was not appropriate simply because the custodial parent engaged in adultery. Parents are human beings and not required to be perfect.

As will be seen in the next section, there are times when the acrimony among the parents may constitute a sufficient basis to modify custody. The courts have made it clear that the friction among the parents must have a real detrimental effect on the child before modification will be warranted. In Walsh v. Walsh, 95 Md. App. 710 (1993), the court held that modification was not warranted merely because the parents disagreed over financial matters. However, the court noted that disagreements over health or education may begin to approach the material change standard.

Material Change In Circumstances

Although everyday disagreements among the parents will not lead to a modification of custody, interfering with the other parent’s visitation rights will. In Wagner v. Wagner, 109 Md. App. 1 (1996), the custodial parent cut off communication with the non-custodial parent, and essentially went “underground”. This had the effect of preventing the non-custodial parent from exercising visitation rights. The court ordered a modification of custody. Similarly, in Bienenfield v. Bennett-White, 91 Md. App. 488 (1992), the custodial parent attempted to prevent visitation, and interfered with the non-custodial parent’s attempts to educate the child on agreed upon religious views. The court again modified custody. The moral of the story – put your ego and petty squabbles aside, and at least act mature and civil around your ex-spouse when a child is involved.

Along these lines, if you value your right to interact with your child, do not try to confuse the child out of feelings of resentment for the ex-spouse. In McCready v. McCready, 323 Md. 476 (1991), the custodial parent allowed the child to refer to the parent’s partner as “daddy”. The non-custodial parent took issue with this and petitioned for modification. He won. The court noted that the custodial parent exhibited worrisome “selfishness and immaturity” by allowing the child to refer to the non-biological parent as “daddy”. After further denouncing the custodial parent as “narcissistic”, the court modified custody in favor of the biological father.

The idea that it is better to take the high road applies to the next case as well. In Gillespie v. Gillespie, 206 Md. App. 146 (2012), the custodial parent assaulted the ex-spouse’s partner. Similar to domestic violence, the court found the lack of self-control worrisome, especially in light of other evidence suggesting a deterioration in the parent’s mental health. The court held that the circumstances warranted a modification of custody.

Sometimes a parent’s underlying problems and lack of concern warrant a modification of custody even without evidence of rude or violent behavior toward the ex-spouse. In Scott v. Prince George’s County Dep’t of Soc. Servs., 76 Md. App. 357 (1988), there was evidence that the custodial parent only wrote three letters to the child during the two-year period when the parent was incarcerated. Moreover, the evidence suggested that the parent neglected the child without proper food or care for extended periods of time when not incarcerated, and would at times leave the country without the child and without advising caregivers as to expected return dates. Lastly, there was evidence suggesting a continued decline in the parent’s mental health, and the parent refused treatment. The court held that modification was warranted.

A move to another state may justify a modification of custody. In Braun v. Headly, 131 Md. App. 588 (2000), the custodial parent moved from Maryland to Arizona. In Domingues v. Johnson, 323 Md. 486 (1991), the custodial parent moved from Maryland to Texas. In each case, the courts noted that it can be detrimental to the child to remove them from the area where they enjoy attachments to extended family and friends, and held that relocation to another state could justify modification of custody.


The above cases show that it pays to take the high road. Put your child first. No matter how nasty or immature your ex-spouse may be, if you value your custody or visitation rights, always act civil. You do not have to agree with your ex-spouse, but the court will expect you to handle disagreements in a mature manner. The material change in circumstances standard is a tough burden, and normal, everyday changes in life will not warrant a modification. However, it is not normal to show a disregard for the child or attempt to interfere with the ex-spouse’s visitation rights, and such conduct may well lead to a change in custody.

Along these lines, always remember that your happiness is irrelevant. Only the child matters. Before deciding whether to buy that dream home in another state, ask yourself if it is really in the best interest of the child. Moreover, while you may be in love with your new partner, they are not the child’s biological parent. While it may make you happy for the child to call your partner “mommy” or “daddy”, the court may view it as a sign of selfishness and disregard for the mental development of the child. The child is the star of the show.

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