Can Being a Stay-at-home Parent Affect My Custody Case?

“What judge would ever give you custody of the kids? You don’t have a job!” I’ve heard this too many times. And let me just start this blog post by saying: This is gaslighting and simply is not true. The fact that you have stayed home to raise your children while your spouse brings in the money, does not affect child custody proceedings — period. Under Maryland and Virginia laws, there is no preference in favor of bread-winning spouses.

In the majority of courts, child custody decisions are based on the “best interests of the child.” What does this mean? Well, it depends on where you live — actually, it depends on where you file. But, in general, here are some examples of questions courts may ask during a child custody case.

I know I say this in every post, but the same goes for child custody cases: hire an experienced family law attorney to help you navigate the process and fight for your interests in court. In the meantime, here’s a run down of the primary custody factors in Virginia and Maryland, what can help or harm your case, and bonus: how to pay for attorneys when you don’t have a job.

What the Courts Consider in Child Custody Cases

There are two types of custody: physical custody and legal custody. Physical custody refers to where the child lives, while legal custody refers to the right to make decisions for the child concerning health, education, religion, etc. These can be determined as either sole custody or joint/shared custody.

As mentioned above, the exact factors considered in child custody cases vary slightly by state. If you live in the DMV, where you file might seem confusing. What if your ex lives in Bethesda but you live in Arlington? The courts only care about the child’s home state, and this is defined as where the child has lived for at least the last six months. That is the state you should file your custody case in.

While many of the custody factors courts consider are similar between Virginia and Maryland (see below), there are some details I’ll dig into a bit more on each.

Maryland Child Custody Factors

Maryland child custody factors include the following:

1. Who the primary caregiver is
2. The physical and psychological health of each parent
3. Character and reputation of each parent
4. Existing agreements in place
5. Ability of each parent to maintain family relationships for the child
6. The child’s preference
7. Financial resources of each parent
8. Age, health and gender of the child
9. Proximity of the parents to the child’s life as well as each other
10. How long the child has been separated from the parent
11. History of abandonment

Number one and seven are probably jumping off the page at you. First, a win for you, as the judge will look at who currently serves as the primary caregiver. If the other parent is somewhat absent from caregiving, this can impact the arrangement. However, your ex will likely be prepared to prove that he or she is “fit” to be the caregiver, even if they haven’t done so in the past. Yes, I know I told you being the breadwinner card holds no weight. I promise I wasn’t lying. However, financial resources are considered when weighing the future life of the child. What can hinder your case here is if you are unable to support yourself. The court is looking for a parent who can provide food, a home and basic needs. Remember that child support and/or alimony may also come into play here.

Virginia Child Custody Factors

Below is a list of the factors Virginia courts consider when determining the best interest of the child, which are similar to Maryland's custody factors:

1. Age, mental, and physical condition of the child
2. Ages, mental, and physical conditions and abilities of each parent
3. The relationship that exists between each parent and the child
4. The needs of the child
5. How each parent has cared for the child up until separation
6. Each parent’s willingness to promote a relationship between the child and other parent
7. Willingness of each parent to maintain a relationship with the child
8. The child’s preference
9. History of abuse
10. Any other factors deemed necessary

This list is fairly straightforward, but as a stay-at-home parent, there are a couple points you’ll want to flag here. The biggest one probably being the child’s preference. Yes, a child’s preference may also be considered. However, this does not mean you should encourage (or coerce — please don’t) your child into choosing you over your ex. What it means is that if they are of reasonable age and sound mind, they have the right to express their own preference to the court to be taken into consideration.

What’s important here is to get on the same page as your child. Understand his or her wishes and feelings, and find ways to support these wishes while maintaining your own relationship and character.

Number five, how each parent has cared for the child up until separation, is a place where stay-at-home parents can shine. The court will look at things like:

• Who takes the child to doctors’ appointments and extracurriculars?
• Who helps with school work?
• Who does the day-to-day caring of the child

In the court’s eyes, what role each parent plans to play in the future is likely reflective of the role they’ve been playing in the past.

Helping or Harming Your Child Custody Case

You’ll notice that both states mention the character and reputation of each parent. This is an area you will want to stay in control of. If there is animosity between you and your ex, you could encounter character assassination as they attempt to call into question your parental abilities.

Sure, you can have character witnesses, but what many forget is the value of actually displaying your character — with your actions and wishes — during the child custody proceedings. Anger can cloud our judgment, but when it comes to child custody cases, refusing to compromise with the other parent or openly bashing them — whether to your child or on social media (don’t!) — can hurt your case. Why? It shows you aren’t willing to support their relationship with your child. And in the eyes of the court, this is bad.

Remember that ultimately the court wants both parents to have contact with the child and share child rearing responsibilities, so long as this is what’s in the best interest of the child. It is your job to be professional and cooperative in order to display not only your ability to co-parent but also your character. My advice: take the high road.

(Disclaimer: This does not include cases in which the other parent has a history of violence, abandonment, sexual or child abuse, or any other patterns that would cause harm to you or the child.)

How Do I Pay My Attorneys?

Finally, payment. Let me first say that this is a common concern, and because it’s common, there are solutions. First, many attorneys will offer you a payment plan. Some clients will take out loans or get help from family members to assist with this. But, ultimately, an experienced attorney will ask the court for a contribution to or payment of attorneys fees for you. This is usually awarded and can help alleviate the financial burden.

If you are a stay-at-home parent and need representation during your child custody case, reach out to me, and we’ll work on a plan for payment. Call me at (301) 637-6070 or email dwhitten@dwhittenlaw.com.