David Bulitt: [00:00:00] Welcome to JGL Law for You. JGL Law for You is a podcast by
lawyers, but not for lawyers. Only on JGL Law for You do we discuss a wide array of
topics to help you navigate the many legal processes, developments in the law, other
current events, and how they may affect you, your family, or your business.
Today, we’re talking family law. Why are we talking family law? Because, as of October
1, some very, very important changes were made to the laws here in the state of
Maryland. Helping us talk through them and explain what they mean to you if you’re
potentially looking at divorce or a custody dispute with your spouse or significant other
is my partner and good friend, Chris Castellano.
Welcome back, Chris.
Chris Castellano: Good morning, David. Good as always to be back.
David Bulitt: Yeah, good to have you. So, let’s dive right into this. We’re talking about
Maryland’s new House Bill 1191, which I know has now come into effect under the
Family Law Article, Section 9-201. That’s effective as of [00:01:00] October 1, 2025.
Let’s start from the top and work our way down.
Why is this important to people who are either thinking of or on the precipice of looking
at a potential custody dispute?
Chris Castellano: So, 9-201 is now the unquestionable backbone of custody cases in
Maryland. It dictates — there are 16 factors laid out, and we can go into them in more
depth in a few — and they dictate exactly how the court’s going to look at a custody
case and how the court’s going to rule on that custody case because it dictates that the
court must articulate its findings based on these factors.
So not only is it a way that we as attorneys have to approach the case from its very
inception, but all the way to its conclusion by way of a court ruling. This is pretty seminal
as far as a new law for custody cases is concerned.
David Bulitt: [00:02:00] Okay. So, for custody cases, before this law was passed, how
were they decided, and how is it any different now?
Chris Castellano: They still utilize factors, right? We’re all too aware of the Taylor v.
Taylor factors and the Sanders and Montgomery County v. Sanders factors. There was
a litany of factors that we would all rely upon in order to establish and argue our custody
cases.
What’s different now is that the legislature in Annapolis took all those different
collections of factors and distilled them down to what I’d call the greatest hits of factors.
There are factors 1 through 15, and I say that very specifically. Factors 1 through 15 are
basically your primary factors to look at when arguing a custody case. Number 16 is your kind of kitchen sink. It’s the any-other-factor that the court wants to consider. But
[00:03:00] factors 1 through 15 are your definitive factors that we are now going to go
through when arguing a custody case.
David Bulitt: Alright, so you’re getting ready. You’re thinking about a potential divorce,
whether it’s just a custody dispute, whatever it may be. As a litigant — or maybe better
put, as a parent — what should I be thinking about in terms of what I’ll need to help
prepare my case and what my lawyer’s going to need to help me with so that I can
maintain custody of my children?
Chris Castellano: Yeah, so you know you and I have had quite a few recordings, and
one of the themes of my way of thinking is risk management, right? I think this is a
perfect example of that. When a litigant — or a potential litigant — is looking at an
upcoming custody case that they know is coming down the pipeline, what they want to
do, if they’re feeling ambitious, is look at these factors, even write them out, and say,
“Where are my [00:04:00] vulnerabilities? Where is it that I’ve got some type of
exposure?”
Now, of course, that could be down to the Hollywoodized version of, “Do you have
skeletons in your closet?” We can talk about that. But it’s really analyzing, hey, is this
factor going to go for me or is this factor going to go against me? Now, there’s nothing in
the new statute that says that because there are 15 factors, if you have eight and the
other side has seven, then you automatically win. There’s nothing that says that.
But it is a good way for you to look at these factors and say, “This one is for me,” or
“This one helps,” or “This one helps my argument, and these ones don’t.” Maybe that’s
where you focus. That’s where you focus your efforts.
David Bulitt: It’s almost like chemistry class. There are 15 factors, and there’s a 16th,
which we’ll talk about. You throw them into a beaker, and then something comes out. I
mean, it’s not that scientific, is it?
At the end of the day, we’re not measuring what goes into a beaker in chemistry class.
[00:05:00] Whatever these factors are — and I want you to talk about them — they’re
still subjective to a great extent, are they not?
Chris Castellano: I like that you brought it up in terms of something empirical —
something that’s right or wrong. I’m a very black-and-white guy, and I love it when there
is a structure. I’ve always had that reputation of being a rules guy. I love the rules. I love
the structure of things.
Every single person that approaches things is going to have a bias, is going to have a
subjective view on things. But I think the intention here of this new law, 9-201, is to try to minimize as much as possible the subjectivity and make it into a clear set of factors that
we analyze.
Hopefully, when you have enough of these cases being decided under 9-201, you
establish a pattern. While it’s not as empirical as [00:06:00] the scientific world, it
nevertheless makes it so that there is less variation. Perhaps this is part of Annapolis’s
thinking: there’s, as a result, less ground for appeal in custody cases.
David Bulitt: So, when a judge listens to a custody case now, at the conclusion of the
testimony, at the conclusion of the trial, is that judge required to tick through these
factors and say, “This is what the evidence showed as to factor one. This is what the
evidence showed as to factor two,” and so forth?
Chris Castellano: Yes. In short, the answer is yes. Section 9-201(b) says that the court
shall articulate its findings on the record or in a written opinion, including the
consideration of each factor listed in the subsection above, right?
And by the way, relative to factor 16, which is our kitchen [00:07:00] sink, that includes
any other factor that the court considers. So, the short answer is yes. The court must go
through and identify them.
In my opinion, the effective rulings that we’ve had prior to this were the ones that
articulated each of the Taylor and Sanders factors, right? I’m sure you agree with that.
Again, that’s this idea, right? We had rulings back in the past that didn’t necessarily
articulate all these findings, or the arguments themselves were a little bit haphazard —
or scattershot, is a better way to say it.
We’re trying to make it a little more definitive, focused, and clean. Maybe make the
approaches more universal.
David Bulitt: So now what we’re doing, right, Chris, is we’ve taken those factors — the
language that was in both of those cases for the most part — and turned them into a
statute that’s really on two pages of the code, as opposed to having to read through 30,
40, or 50 pages of a court opinion.
Chris Castellano: Yeah. I love going through my cases and what I tell my clients, making
them anticlimactic. I say that because, for instance, in a financial case, once you do the
math, once you do the hard work, you can make the issues very anticlimactic. It’s hard
to argue with that black and white.
Now that we have these factors under 9-201, the hope — and I’m sure that Annapolis
shares this hope — is that you’re making these cases somewhat anticlimactic. We know
these factors. We’re not going to argue variations of the Sanders factors. We have
definitive factors that you are not [00:09:00] to deviate from. Argue these 15 factors. If
you want to spend part of the afternoon arguing within factor 16 and add about 10 other factors, that’s on you. But it’s these 15 factors that should enable any judge in Maryland
to decide a case.
David Bulitt: Okay, so are there some of these factors that may be weighed more
heavily than others? I don’t want to say more important, but maybe that is the right word
— that might be more important to lean on depending upon what your case looks like,
what your client looks like, and what their family looks like.
Chris Castellano: Yeah, it’s always interesting. We could, I’m sure, point out five factors
that we would consider generally the most important or the most critical. Then we get a
case that walks through the door, where it turns out that three other factors are actually
much more important given those specific factual circumstances.
But let’s go ahead and do it. In my opinion, of the factors — and I don’t know if you want
to go through all 16 or at least the 15 — [00:10:00] I would say these are some of the
biggest ones: a child’s stability and emotional security is one; the relationships with each
parent and significant people is another; the parents’ ability to communicate and co-
parent — put a pin in that one — the location of the homes and how that affects the
child’s routine, that’s another big one; and the child’s age and preference, if appropriate.
Of those five, I would consider the location of the homes and how it affects the child’s
routine as your baseline critical factor. I mean, that’s going to be virtually critical in every
case because it affects the day-to-day.
David Bulitt: Okay, so let’s morph back for a second to the old days when I first got
started out — and the laws have certainly changed since then — but in those days,
when we were talking about getting ready for a custody case and we look at this
[00:11:00] factor in terms of the location of the homes and how that affects the child’s
routine, we told people not to leave, right?
If you have two young kids at home and you are there with your spouse, don’t leave the
house. Because if you leave, especially if you’ve got kids in school, you put your case in
a difficult position. You’re the one that’s trying to get those children — that child or those
kids — to come and live at a new place someplace that they haven’t lived before,
whereas a parent who stays there is more able to show, “I can maintain the status quo.”
Would you agree with that so far?
Okay, so now layer on top of that that folks don’t need to be separated to get divorced
here in Maryland anymore. Doesn’t this potentially cause significant harm to families
who look to be heading down the custody route? In other words, you’ve got two parents,
both of whom have lawyered up. Now they’re getting ready for [00:12:00] this custody
case in which these factors have been articulated into law, and one of them, as you’ve
properly identified, is the location of the homes and how that affects a child’s routine.
So, both parents want primary physical custody, want to have the kids primarily reside
with them. Why would either parent move out under this new law?
Chris Castellano: You know, David, this has come up for me recently in a handful of
cases. Frankly, the short answer is that not much has changed in that general way of
thinking, right? The family’s castle remains just that. Any house thereafter is more of a
fort rather than a castle, right? That hasn’t changed.
In fact, I would go one step further and argue that the ability to establish and maintain a
divorce case while living in the same house has only complicated this. I’m thankful that
we codified these 15 to 16 factors into law, but that’s [00:13:00] a Band-Aid over the
greater problem, which is the separation within the home.
Because not only do you leave the custody questions open — frankly, the only way to
establish a custody arrangement still remains if there are different homes — we’re
juggling two different warring concepts here, and there’s no good clean answer to date. I
appreciate these factors, but I would also appreciate maybe this term coming up in
January if we can get some clarity as to how do we deal with this very real situation that
exposes people to real harm and the potential flashpoint of domestic issues.
David Bulitt: Yeah, I mean, the issue clearly is to lay out a map for how to determine this
sort of what’s in the best interest of this child or these children, right? That’s why this is
now law, right? This is now a statute. They’re looking to try to make a map for people to
follow so judges can more easily make these [00:14:00] determinations, or at least have
a map to make the determinations, right?
Chris Castellano: That’s right.
David Bulitt: Okay. So — and also to create a little bit more uniformity.
Chris Castellano: Yeah.
David Bulitt: But isn’t the irony in all of this that the statute may actually encourage more
dispute, more debate, and more fighting because neither one wants to leave the house
and lose that edge?
Chris Castellano: Absolutely. I think that a lot of the recent changes we’ve seen to the
law — whether it’s the six-month separation, whether it’s the separation within the
home, whether it’s the elimination of the grounds for divorce down to just no-fault
grounds, and now with this — I think the idea is to simplify the process and make it
more accessible. I think that we keep hearing this.
But I believe your intuition is correct, and this is what I’ve observed: the cases have
been far more contentious as a result.
David Bulitt: Okay. I don’t want to beat this like a dead horse, as they say. [00:15:00]
Folks, we are going to put the factors in our show notes here, so you’ll be able to look at
those as you listen to this episode.
I do want to ask you about this 16th factor, Chris, and tell us what that is and why it’s
there.
Chris Castellano: So, the 16th factor is any other factor that the court considers
appropriate in determining how best to serve the physical, developmental, and
emotional needs of the child. That’s verbatim. I just read that off of the statute itself.
Can you come up with a more open-ended factor than that, David? I can’t. It’s
essentially your kitchen sink, right? Forgive me for not recalling the exact number of
factors in Sanders and Taylor. I think the last number I had was upwards of 30 if you
totaled them all together.
I’m sure that you can go into both of those cases and find some factors that you think
help your case that aren’t listed in the statute. That’s what it really comes down to. While
these first [00:16:00] 15 factors are going to be generally applicable to the population at
large, every custody case has its unique entanglements and issues.
So that 16th factor is a way that, while acknowledging the desire for uniformity, the
legislature has still allowed the court to consider the particular needs of a child because
ultimately, if you don’t allow the court to consider the particularized needs of a child,
then how can you say that the legislature has allowed the court to consider the best
interest of the child? It would have failed at its job without that factor.
David Bulitt: I hear that, and it also — again, so that there’s no confusion — layers on
another piece of subjectivity, doesn’t it? I mean, I’m Judge Bull. I’m making a
determination in the Jones versus Jones case. I’ve looked at these factors, but let’s say
there’s something that irks me about this [00:17:00] mother. There’s something that
bothers me, so I’m going to come up with something to get me where I want to go.
I’m going to consider these factors, but there’s something in my gut that tells me X or Y
should happen. Doesn’t that allow a judge — again, I know we’re trying to reduce
subjectivity to a certain degree — but doesn’t the fact of the matter remain that we’re not
really doing that, are we?
Chris Castellano: If you had, let’s say, the Smith v. Smith case also come across, and
you look at this and say, okay, these are two parents that maybe couldn’t get along.
Here are the factors, and it’s pretty down the middle. It’s not terribly controversial. It’s a
fairly straightforward custody case. It’s unfortunate; maybe the lawyers didn’t get along
in all the ways that they should have, and so the case didn’t settle, and it’s in front of
Judge Bull.
In that case, you’re comfortable. You could be equally comfortable in just resolving that
case within the first 15 factors. Then you have another case, same thing. Maybe you
only needed 14 of the 15 factors. So, I would assume [00:18:00] that out of 10 cases,
seven of them will be able to be resolved within the first 15 factors.
It is those last three that are high conflict that require the 16th factor. That is your wild
card. I don’t know of anyone that’s won the game of UNO without using a wild card,
right? In this instance, I think it’s the release valve that’s necessary.
David Bulitt: Okay. And just briefly to touch on this, the factor that involves the child’s
age and preference — how much does that matter, depending upon the age or maturity
of the child?
Chris Castellano: This is such a great question. The answer is that I do wish here on
this factor, the age of the child were explained and expanded on a little bit more, right?
Because you could have a case where a 12-year-old acts like a [00:19:00] 16-year-old
and a 16-year-old acts like a 7-year-old, right?
You talk about subjectivity. I suppose that the court is empowered to analyze that, but
the factor just says simply the age of the child. It just says the age of the child. If the
court says, okay, the kid’s 15 years old, this is what I’m going to do. I’m not going to
mandate this very, very specific arrangement. I’m just going to have it be somewhat
more open because the kid has about 15 extracurricular activities each day of the week,
and the kid’s going to be driving in a year, so they’ll be able to drive back and forth.
I think that opens up some issues, and if I could be critical and so bold as to criticize the
statute, that’s kind of where I would start.
David Bulitt: I mean, logic tells you, common sense tells us, that a 15-year-old’s
preference — assuming that 15-year-old is an age-appropriate, mature 15-year-old —
that child’s [00:20:00] preference is going to mean more than a 3-year-old saying, “I
want to be with mama. I want to be with Daddy.”
So, let’s shift a little bit to modification. Here’s the scenario: the Joneses were divorced
in 2020. There was a custody arrangement, and now that’s not working for whatever
reason. You can discuss the possible reasons for that. So now Mr. Jones is looking to
modify that prior order or that prior agreement.
Is it the same analysis? You just go to these factors, and this is what a court has to do
— look at these 15 factors plus one to make a determination? Or is there another hoop
that the person who is trying to change that existing order has to jump through?
Chris Castellano: Yeah, so the legislature helped out a little bit here, too, right? Section
9-202 is a new statute effective as of October 1, 2025, that is slotted in right after 9-201,
which we just talked about — the factors, right?
It outlines that the court may [00:21:00] modify a child custody order or a visitation order
if there’s been a material change in circumstance since the last order and if modifying it
would meet the best interest of the child. I’m paraphrasing, but that’s essentially the
concept now embodied within this new statute, 9-202.
That concept is not a new one. It is still the threshold that we have all operated on. It’s
still the magical language that we’ve all operated on. It is the idea that there must be a
material change in circumstances from the last order, meaning since the last order was
put in place, something has changed in a material way — not a superficial way, but a
material way — that justifies changing that order.
How do we change that order? In a way that meets the best interest of the child. At that
point, once you start to answer that question, [00:22:00] you are going to turn the page
backwards and go to 9-201 and start going back through those factors.
David Bulitt: Okay. And what might be — I know there’s a litany of possibilities — what
might be some common examples of a change in circumstances that would result in the
court taking a look at the potential modification of an existing order?
Chris Castellano: So, I’ll use a couple. One is listed in 9-202 itself, almost as if to
provide us an example, right? Parent B says the parent’s proposal to relocate the
residence of the parent or the child in a way that would cause physical custody to be
impractical constitutes a material change in circumstance.
There was always a question in all of our cases in the past that had this issue of how far
away is too far away to move in a way that causes a material change in circumstance.
The statute doesn’t really answer that question, but it does add a [00:23:00] helpful
layer. It refers to a move that causes physical custody to be impractical. That outlines
how you now essentially need to go back to 9-201 and those factors to start doing the
analysis.
I would also say that you can look at the factors themselves to identify whether or not
there’s a material change, and this is all going to be new, so it’s going to be up to your
argument to the court. But items such as the ability to communicate and co-parent —
that was one of the factors we talked about — come to mind.
I think that right there, sure, the court custody order in place says that they need to
communicate on all the issues and that they’re supposed to communicate through Our
Family Wizard, right? Then you’ve got a situation where Parent A, six months into the
order, stops communicating via Our Family Wizard, starts communicating via text only,
and is very combative.
That is a situation where the court says, “You know what? Section 9-202 is triggered. A
material change has occurred here because the parties are unable to communicate.” In that scenario, one of the factors is failing. That’s how I would consider that analysis
taking place.
David Bulitt: Very briefly, because I’m sure there are a few of us lawyers here who are
listening: what’s the impact of this statute on lawyers who try these types of cases, who
represent clients when it comes to either initial custody cases or potential modifications?
Chris Castellano: It identifies our ability to look at these cases and say, alright, we know
for sure that if a material change has occurred, then we’re making that change — or at
least analyzing whether we should — under the prior factors. So again, it’s moving past
the arguability under the case law and putting it into the [00:25:00] quote-unquote
uniform, or lack-of-variability, structure of a statute.
David Bulitt: Okay. And if you’re a parent who — let’s just deal with a specific example,
because this is something that happens with regularity — you’re a parent who says,
“You know, I got to move because of my job. I got moved to X, Y, or Z.” This is going to
upset the existing access schedule, right? It may result in a modification.
I come to you, and I say, “What do I do? I don’t want to not see my kids. I’m worried that
I have to move to Richmond,” — pick a place — “and that’s too far for me to be able to
get the kids seven nights out of 14 or six nights out of 14 during the school year.” How
do you work with that client in terms of trying to make sure that they don’t face what
could be a very restrictive access schedule?
Chris Castellano: Yeah. I mean, that’s always tough, right? Even non-preferential traffic
patterns can lead to what becomes an impractical physical custody arrangement,
especially in this area. It’s not [00:26:00] the best, and it’s tough on parents.
But at the end of the day, what you can do is start going through these factors, those 9-
201 factors. Again, it’s not one of those things where if you get eight and the other side
gets seven, you win. But you do need to start building up how strong of a case you
have, right?
Yes, maybe the relocation will inevitably lead to a change in the physical custody
schedule, thus requiring an analysis here. But you use those other factors to your
benefit and see if you can’t get a situation that still is in the best interest of your child in
a way that’s not so destructive to what was the original custody arrangement, or at least
as far as the number of overnights, for instance, is concerned.
David Bulitt: That calls for some creativity, right, on behalf of my lawyer in terms of trying
to figure out how I can now maximize my time with my kids despite the fact that I have
to move a hundred miles away or whatever it might be.
Chris Castellano: Yeah. I mean, at the end of the day, all these Taylor and Sanders
factors were bred out of an understanding of the statute itself, right? We now have a statute. So, in 5, 10, or 15 years’ time, we’re going to have new case law that is probably finding itself nestled within factor number 16, and there’s going to be case law that’s really going to help us truly define how we move forward on these custody cases.
David Bulitt: Okay, so let me ask you this. We’ve been talking for half an hour or so now,
but if there are a couple of real — I hate to say soundbite, but that’s the kind of society
we live in now — takeaways, soundbite-sort-of takeaways for folks that are listening, tell
me what those would be.
Chris Castellano: Yeah. In the last few years, the Maryland legislature has tried to
implement a campaign of bringing in more uniformity to family law in Maryland. I think
that this statute is the first real attempt to make custody cases [00:28:00] more uniform
in Maryland and have the bench employ less variability, less ambiguity, fewer vagaries,
and rest within at least 15 primary factors with one open-door factor, number 16.
It’s a way that perhaps the cases that we present to judges are simply just that — more
uniform and less variable.
David Bulitt: Okay. And if folks, Chris, want to get ahold of you and discuss their
potential case and what might be coming for them down the road, what’s the best way
for them to do that?
Chris Castellano: Yeah, they can give me a call right here at JGL — Joseph Greenwald
& Lake — at 240-399-7881, or send me an email. My profile and all my contact
information are on our website, and I would be happy to talk about either any new
custody issues or modification issues that [00:29:00] rest within this new statute.
David Bulitt: Chris, I want to thank you for your time. Folks out there who are listening,
custody cases are a minefield where parents regularly — and I say regularly — do
things that they ought not to do. So, if you’re on the precipice, if you’re looking at the
potential for custody litigation or just want some advice as to how to prepare for it, give
Chris a call. I’m quite certain he can answer your questions.
As always, folks, thank you for joining us, and we’ll talk to you next time on JGL Law for
You.
