The legislation pending to allow same-sex couples to marry is scheduled for a final vote this Friday, March 11, 2011 in the Maryland House of Delegates as reported by the Baltimore Sun. The legislation has already passed the Maryland Senate and the House Judiciary Committee. The passage of the bill, if signed by the Governor, would allow same-sex couples to marry in the State of Maryland. The passage of this bill would not afford same-sex couples who chose to marry more rights than those of their heterosexual counterparts. The bill would solely extend the civil protections already afforded to married couples to same-sex couples who chose to marry.
The same sex marriage bill passed at the House Judiciary Committee on Friday, March 4, 2011 by a 12-10 vote as the Baltimore Sun reports. This means that the bill will move to the full House of Delegates for debate, which is scheduled to start as early as this Tuesday, March 8, 2011. As we previously blogged, on February 25, 2011 the bill if passed into law would allow same sex couples to wed. Delegates who had previously opposed the bill have expressed that they will vote to pass the bill as they believe it should ultimately be up to the voters to decide. As the Sun reports, if the bill passes in the House of Delegates, “Gov. Martin O'Malley has said he will sign the legislation if it reaches his desk. Opponents could then gather the roughly 55,000 signatures needed to petition the new law to referendum, where voters in the 2012 presidential election will decide whether to repeal it or leave it on the books.
We discussed the pending same-sex marriage legislation in our February 25, 2011 blog. In our blog we touched briefly on the rights of same sex unwed couples with children and thought the topic could use a little further explanation because there are consequences to not having a legal tie to your child(ren).
Typically, when a same sex couple adopts a child, only one of them actually adopts the child from the agency, country, service, because two people without a legal tie to one another are generally not permitted to adopt a child together. Therefore, only one parent in a same sex unwed relationship is deemed to be the legally recognized parent of the child. This means only that “legal parent” can authorize medical treatments, make medical decisions, consult with therapists, obtain emergency care for the child, obtain school records for the child, make decisions regarding the child's 504 or IEP plan, meet with teachers, etc. For example, the parent who is not legally recognized as the child’s parent cannot authorize the pediatrician to administer inoculations, tests, draw blood, or prescribe medication. This is obviously a challenge for same sex unwed parents who otherwise share in the day to day parenting responsibilities of the child and are working together as a family unit to raise the child. Some of the difficulties can be cured by subsequent adoption proceedings, powers of attorney, and adding names to birth certificates. However, the costs, time and emotion involved are substantial.
As the Baltimore Sun reports, the Maryland Senate approved the Civil Marriage Protection Act on Thursday, February 25, 2011, which would allow same-sex couples to wed. Although the House of Delegates still needs to pass the Act, the Senate’s passage is still “historic.” We have previously blogged about the issues that surround the recognition of same-sex marriages in Maryland, specifically the Attorney General’s support of recognizing same sex marriages created validly in other states maryland and Maryland lawmakers attempt to block gay marriages. With this Act being passed by the Senate, it is time for us to prepare for changes we may see in our divorce and family law practice with the allowance of same-sex marriage.
The potential changes are vast but include the changes that we will see in custody and visitation law. Often same-sex couples adopt a child, however when couples are not married, only one partner is usually the legally recognized adopted parent. When these relationships end, the child is left with one legal parent and one who is presently recognized as a third party (not a parent) in the State of Maryland. For more information on the third party status that same sex parents currently face see our November 27, 2009 blog. With the passage of this legislation, same-sex couples who marry and adopt a child will both be the legal parents of the child and will be recognized as same should the marital relationship end in separation and/or divorce.
When meeting with clients initially and discussing the general course of litigation, I will advise them that discovery is part of that process, which usually prompts many questions. First and foremost is what is discovery? Discovery is a litigation tool used to gather and exchange relevant information and potential evidence from and with the opposing side prior to a trial. In a divorce matter it most frequently consists of Interrogatories, Request for Production of Documents, and Depositions of parties and witnesses. However, discovery may also involve Request for Admission of Facts, Notice of Records Depositions, and/oror Mental or physical Examinations of parties. Interrogatories are a list of a maximum of thirty questions usually involving employment history, lifestyle, assets, marital and non-marital property, child rearing responsibilities, and reasons for the dissolution of the marriage. Request for Production of Documents are a list of requests asking for documents from a party. These usually consist of financial documents, employment records, documents regarding the children, documentation of communications with the other party, documentation of expenses/debt and documents regarding the parties’ assets.
Many clients question why these documents need to be exchanged as they feel it is an invasion of their privacy. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets or have withheld discoverable information from the other. Further, client's must know that if you or the opposing party makes a request or raises a particular issue in a matter, then the issue must be explored. The old adage "what is good for the goose is good for the gander", often applies in these situations. If a document is requested that is particularly confidential in nature or for some reason should not be turned over to opposing counsel, clients can seek protection of that document by filing a motion with the court. If the opposing side is not turning over their documents and answers in a timely fashion then one may file a motion with the court asking them to compel these documents or to prohibit that party from entering any evidence regarding same at trial. If a party tries to introduce a document at trial that was not turned over to the other side prior to the hearing then the Judge may prohibit it from being entered into evidence. The discovery process is governed by the Maryland Rules commencing with Rule 2-401. Clients should also understand that while all pleadings in a matter are filed with the court, the discovery requests and responses are not. The court will not see the Answers to Interrogatories or Responses to Request for Production of Documents unless they are admitted in evidence at a trial.
While your spouse’s substance abuse issues may not affect you nearly as much since you have separated, they certainly will continue to affect your children. Unfortunately, many clients are faced with these issues. It is important to address all substance abuse concerns at the beginning of a matter, by bringing it to your attorney or the court’s attention. In many Maryland counties the Court, when requested, will order a substance abuse evaluation of the parties. Be aware that if you request an evaluation of your spouse, the Court will often order that the evaluation be performed on both parties. The evaluation will most likely consist of an interview including substance abuse history, and treatment and also in some cases urinalysis or other form of drug/alcohol screen. If a party asks, and the Court feels is it necessary, continuing drug screens of a party may be ordered. This allows for the party to gain visitation or custody with their child or children after maintaining positive results. If a custody evaluation is performed in a matter the evaluator will also utilize the information gained from drug screens or a substance abuse evaluation to assist them in making their recommendation.
As a follow up to our June 30, 2010 and July 8, 2010 blogs on Facebook evidence in Maryland family law proceedings, we have compiled a top five do’s and don’ts for Facebook for parents in the midst of custody litigation.
1. Do disable your Facebook account. If you can’t bring yourself to do it, make your presence on Facebook as minimal as possible, and we mean minimal.
2. Do set your Facebook page to private so only those who are your friends can view your page, and while you are at it do a “spring cleaning” of your friend list, eliminating those who are unnecessary. Friends should only be those who have no connection with your ex or your ex's family and/or friends. You never know who is viewing/printing information from your account and passing it along.
3. Do eliminate all photographs, wall posts, information that could be damaging to your matter, such as posts or photographs related to illegal substances, partying, unsuitable living conditions, boasting, and/or unemployment. In other words, eliminate all posts or photographs that you would not want a Judge to see.
4. Do NOT post pictures of your child doing anything that could be considered inappropriate. Do not let others post anything inapporpriate of your child either.
We recently had a case where the grandmother had a photograph posted of her grandchild (the child who was the subject of the custody dispute) sipping an alcoholic beverage. Needless to say the Judge was not amused.
5. DO NOT post status updates or wall posts regarding your ex or your kids, whether it has to do with your ongoing custody battle, or your most recent exchange of a child. During a protective order hearing I recently tried, the Judge found a parent’s posting of “I’m going to take you down” was enough of a threat to grant a final protective order. In other words, keep your custody battle off of Facebook! In addition, urge your mother, brother, friends, and next door neighbors to keep any and all posts regarding your ex off of Facebook.
1. Well in advance of each holiday, refer to your existing Court Order, Separation Agreement, and/or Judgment of Absolute Divorce to determine what your Order and/or Agreement sets forth for each holiday.
2. Communicate to the other parent, (preferably in writing via e-mail or text), your interpretation of the existing Order and/or written Agreement. Specifically spell out who has the child(ren) on which day or part of the day, the times and where exchanges are to take place. Ask the parent to confirm that is their understanding.
3. If there is not an existing Order and/or written Agreement, again, well in advance of the holiday, contact the other parent (preferably in writing) and set forth your specific proposal and ask them for there thoughts and comments.
4. Put your child(ren) first, not yourself. Understand that the child(ren) should have the opportunity to spend part of the holiday which each parent and their respective families, regardless of your feelings for the other parent. Do not be selfish, it will come back to haunt you.
5. If there is not an existing Order and/or written Agreement, keep the child(ren) out of the decision making process. This in an adult issue, keep it that way.
6. Keep the holiday schedules simple and fair.
7. Keep your emotions in check. Do not get emotional with your child(ren) or the other parent about the schedule.
8. Do not place your child(ren) in the middle, do not make them choose who they want to be with, and do not make them feel guilty because they will not be with you the entire holiday. Remember, your children did not ask to be in this position.
9. Use common sense. Do not call the police because the other parent said they would have the child(ren) back at 4:00 p.m. and it is 4:10 p.m. Call the other parent and ask for their estimated time of arrival.
10. As a last resort, you can seek the assistance of the Circuit Court in your Maryland county/city and have a Judge decide how your family will spend the holidays. Each County and the City have different protocols for addressing these holiday access issues. See our November 17, 2010 blog for local Circuit Court "Holiday Court" protocols.
With the holidays approaching many clients may be facing uncertainty or conflicts as to where their child(ren) will be spending the holiday. We always advise clients to plan holidays far in advance so a schedule can be arranged that is best for the child(ren). It is important to develop a schedule that is not too overwhelming for children, so they can enjoy the holiday without exchanges at inopportune times, such as midnight on Christmas Eve, or too many exchanges in one day. It is also important to remember not to make plans for your child(ren) on the holiday until you know what the schedule will be. Lastly, for your child’s sake, explain to them how the holiday schedule will go, do not seek their input or place a guilt trip on your child(ren) for not being with you for the holiday or a portion of the holiday, and be flexible and accommodating to making the holiday work for everyone. Everyone does include the other parent and his or her family.
If you are unable to reach a holiday arrangement with your child’s parent you may turn to what many practitioners refer to as “holiday court”. Most Circuit Courts throughout the State of Maryland implement a specific protocol for what is known as “holiday court,” or the process that takes place in order to resolve these holiday access disputes. We have collected information from the nearby Circuit Courts to find out how they will be handling this year’s holiday disputes.
Monica Scherer Wins Contested Custody Case for out-of-state Father in the Circuit Court for Baltimore County, Maryland
I recently tried a custody matter in the Circuit Court for Baltimore County, in which I represented the father of the minor child. The father came to our office in January 2010, after he had arranged for his minor child to reside with him upon learning that the child's mother was not properly caring for him. The minor child had resided with his mother for nine years, but she had recently changed residences, which our client had great concerns about. Prior to January 2010, our client, who resides in a neighboring state, was visiting with the child every other weekend, when the parties were on good terms. After our client made arrangements for his son to live with him, the mother filed a Complaint for an Emergency Hearing, which was scheduled for March 2010 at the Circuit Court for Baltimore County. Due to a heavy docket we were sent to mediation and a hearing was not held. We were able to negotiate a temporary schedule which granted our client temporary sole physical and legal custody and allowed the mother visitation with the minor child.
The case was then set in for a final custody hearing, which was held in November 2010. At the final hearing, both parties were seeking sole legal and physical custody of the minor child. However, after evidence was presented regarding the parties respective living situations, stability, fitness, ability to maintain relationships for the minor child, and economic status, among other factors, the Judge awarded our client sole legal and physical custody of the minor child with visitation to the mother of the child. The factors that were considered are in line with those named in our October 23, 2009 blog, which details factors considered in custody disputes.
There are two parts to custody in the State of Maryland, legal custody and physical custody. Legal custody is the ability to make decisions regarding the child's health, education, religion and other matters of significant importance. Legal custody can be awarded solely to one parent or jointly to both parents (there are also variations on joint legal custody, such as having on parent as a tie breaker or a requirement to mediate when parents cannot reach a joint decision or assigning each parent sole legal decision making with respect to different issues, ie Mom makes the decisions on education and Dad makes the decisions on religion and the parents have joint legal custody on religious issues). Maryland courts have held that the strongest factor in determining whether to award joint legal custody is the ability of the parents to communicate with each other regarding the children.
Physical custody pertains to with whom the child resides. Physical custody can be awarded primarily to one parent or it can be shared between the parents. The Maryland case Taylor v. Taylor, 306 Md. 290, 508 A.2d 964 (1986), sets forth a list of several of the factors a Court will consider for the award of shared physical custody. These considerations include:
i. capacity of the parents to communicate and reach shared decisions affecting the child's welfare;
ii. willingness of the parents to share custody;
iii. fitness of the parents;
iv. relationship established between the child and each parent;
v. preference of the child;
vi. potential disruption of the child's social and school lives;
vii. geographic proximity of the parental homes;
viii. demands of parental employment;
ix. age and number of the children;
x. sincerity of both parents' requests;
xi. financial status of the parties; and
xii. benefit to the parents.
The Baltimore Sun reported on July 7, 2010 that retired Prince George's Circuit Judge Graydon S. McKee III ordered Gayle and Craig Meyers to split custody of their dog at their limited divorce proceeding . For more information on limited divorce see our March 19, 2010 blog. In accordance with Maryland law, pets are considered marital property and are to be divided as such. For more information on marital property in Maryland, see Maryland Code, Family Law 8-203 and see August 19, 2009 blog. Instead of ordering the couple to sell the dog and split the proceeds, the Judge ordered that the dog will alternate spending six months with each party. As reported, "it was very clear that both of them love this dog equally," McKee said. "The only fair thing to do was to give each one an equal chance to share in the love of the dog."
Third party visitation cases have become increasing difficult cases to establish ordered child access. The standard has been and remains that in order for grandparents or other third parties to be awarded visitation with a grandchild/child they must show either parental unfitness or exceptional circumstances. For more information regarding third party visitation see our August 11, 2009 blog post. Maryland’s second highest court recently filed an opinion in the case of Brandenburg v. LaBarre on June 2, 2010, which held that in order to prove exceptional circumstances in a third party visitation case, third parties must show that without visitation there will be significant harm to the children. I am of the opinion that prior to this decision, exceptional circumstances could be proven without proving actual/significant harm to the children.
This visitation case was originally heard in 2008 in the Circuit Court for Anne Arundel County. The LaBarres, the children’s grandparents, filed a Complaint for Visitation after they had a falling out with their son and daughter-in-law, the Brandeburg’s. The Brandenburgs have four young children and until February 2008 the LaBarres cared for the children often and spent a great amount of time with the children. After hearing testimony from both sides, including the LaBarre’s testimony that exceptional circumstances existed because the children had previously spent so much time with them, the Judge granted the LaBarres one overnight visit a month and one week in the summer with the children. The Judge noted that the LaBarres had shown no evidence that the children had been harmed by lack of contact with them, but that it was unreasonable for them to have to do so given they had no contact with the children for some time. The Court of Special Appeals reversed the Judge’s decision stating that the test for exceptional circumstances is whether or not the children are suffering significant harm because they are not allowed contact with the third party seeking visitation. In this case, because the parents were fit, they have the right to decide who can visit their children unless these exceptional circumstances are proven.
The Maryland Daily Record reported on June 28, 2010 that 81% of divorce attorneys have used Facebook as a form of evidence. It is a growing phenomenon in the family law practice and it has occurred in our practice in divorce hearings, custody hearings, and protective order hearings. The statements on a spouse or parent’s Facebook page may be just enough, and appears to have been just enough, to push the Judge in one direction or another in a case. Most Judges may not be aware of the context of a picture or statement on Facebook and with blurry evidentiary rules regarding their admission a picture that is funny to you may appear disturbing to a Judge.
Many may question why a Facebook page would be relevant in a divorce, custody or protective order matter. As explained in our February 28, 2010 blog, a fault based divorce such as adultery requires proof of both the opportunity and disposition for the adulterous relationship to be proven. A Facebook page displaying pictures or words of affection may be the key to proving the disposition element needed for adultery. As explained in our October 23, 2009 blog, in custody proceedings a significant factor that is considered is parental fitness. A Facebook page displaying irresponsible habits of a parent may question the fitness of that parent in caring for their child. As explained in our August 16, 2009 blog, the alleged abuse that is needed to enter a protective order can consist of a threat of serious imminent bodily harm. Such a threat on a Facebook page may be enough for a Judge to enter a protective order.
With the holidays approaching many parents in divided households may be facing uncertainty or conflicts as to where their child(ren) will be spending the holiday. The Maryland Court system in years past has implemented specific instructions for what is known as “holiday court,” or the process that takes place in order to resolve these holiday access disputes. We have collected information from a few of the surrounding venues to find out how they will be handling this year’s (2009) holiday disputes.
Baltimore County Circuit Court
Baltimore County Circuit Court will consider holiday visitation disputes from November 23, 2009-December 19, 2009, and all disputes shall be submitted to Judge Dugan, who will assign each matter to a particular Judge on a rotating basis. When the case is assigned to the Judge who will hear the holiday dispute, the party should contact the Judge’s chambers with the name and contact information for all parties involved, the details of any efforts to reach an agreement between the parties, what relief each party is requesting, and what each party is proposing the holiday access schedule be.
Baltimore City Circuit Court
Baltimore City Circuit Court is hearing holiday visitation issues on December 8, 2009 and December 17, 2009 in front of Master Kelly. All requests for a holiday visitation hearing should be filed with the clerk’s office with a copy sent to the Family Law Coordinator as well.
Harford County Circuit Court
Harford County Circuit Court will forward all pleadings involving holiday disputes to the Family Law Coordinator, who will set the dispute in for a hearing either before a Judge or Master.
The Daily Record reports that the Maryland Court of Special Appeals has decided to vacate the Baltimore County Circuit Court’s decision to allow Larissa S. to visit with her ex-partner Melissa B.’s eight year old son. The couple dated for seven years, before deciding to have a child in 2001, through the help of a friend. After the couple broke up in 2002, Melissa gave birth to a second child. Larissa never adopted either child, but visited with both boys from 2002-2005 until she was denied access, which triggered her to file for visitation rights.
The Baltimore County Circuit Court, namely Judge Daniels, after much back and forth with Maryland’s higher court, found that the third party exceptional circumstances standard was met in this case, and therefore, ordered that there should be visitation between Larissa and the eldest child. For more information regarding third party custody and the exceptional circumstances standard see the August 11, 2009 blog. The Court of Special Appeals found that the lower court erred in finding exceptional circumstances because the Judge improperly refused to hear evidence from Melissa about the potential effects that this visitation with Larissa could have on her eldest son. Such new evidence could include the time that Larissa has been absent from the child’s life, due to this ongoing litigation. The case will return to Baltimore County Circuit Court where a judge will have to listen to all evidence to determine whether exceptional circumstances exist to order visitation between Larissa and the child.
Many non-custodial parents (parents without primary physical custody) are left wondering what to do after being denied scheduled visitation with their child. As of July 1, 2009, those parents may not only have two, but three avenues to pursue.
The first and most frequent method of enforcing a Maryland visitation order that has been violated is through the court’s contempt powers. In accordance with Section 9-105 of the Family Law Article, Annotated Code of Maryland, if “the court determines that a party to a custody or visitation order has unjustifiably denied or interfered with visitation granted by a custody or visitation order, the court may, in addition to any other remedy available to the court and in a manner consistent with the best interests of the child, take any or all of the following actions: (1) order that the [missed] visitation be rescheduled; (2) modify the custody or visitation order to require additional terms or conditions designed to ensure future compliance with the order; and (3) assess costs or counsel fees against the party who has unjustifiably or interfered with visitation rights.” In practice, the non-custodial parent is often frustrated with the initial contempt process because the custodial parent more often than not receives a “slap on the wrist” from the Court. It is, however, a necessary step in order to build a case and to send a clear message to the custodial parent that the denial of visitation will not be tolerated. Ultimately, if the denial of child access continues, and subsequent Petitions for Contempt are filed and the allegations proven, the Courts, generally, take a more no-nonsense approach with the custodial parents and put more boundaries and restrictions upon the custodial parent to ensure compliance with the Court Order.
The second method of enforcing a visitation order is through a breach of contract action. If the custody or visitation order is memorialized as part of a settlement agreement, the parent may also bring a breach of contract action against the violating party. An experienced family law attorney will ensure that this second remedy is available to their client by incorporating, but not merging, any settlement agreement into the divorce Judgment or other Order of Court. In practice this avenue is often not explored.
The third avenue a parent may pursue in Maryland has arisen as the result of a controversial ruling in the Montgomery County Circuit Court. Marius Aydanian, a non-custodial father, sued his child’s mother, Antonina Aydanian, with a tort claim for damages after she interfered with his rights to visit his son. The court found that Antonina had substantially interfered with Marius’s right to visit the child, and the jury awarded him $23,000 in damages and attorney’s fees. In 2008, the Maryland Court of Appeals ruled in Khalifa et al. v. Shannon that a non custodial parent had the right to sue in tort when his wife abducted his children to Egypt. The Montgomery County Circuit Court’s ruling in Aydanian broadened the highest Court’s holding, allowing for tort damages in cases where the parent’s interference with visitation or custody does not amount to abduction.