Articles Posted in Child Custody

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Baltimore will soon be the home to a supervised visitation center according to CBS Baltimore’s report on November 27, 2012. The Safe Havens center will allow victims of domestic violence, sexual assault, stalking, dating violence or child abuse to have parent-child contact in the presence of a third-party supervisor. The opening of the Center is critical as many courts in the area have recently had to close their supervised visitation centers due to lack of funding. The center may be useful to Judges in awarding visitation with a minor child under a protective order to an alleged abuser. As we have previously explained when entering a protective order, a Judge has the authority to establish temporary visitation with a minor child of the alleged abuser and a person eligible for relief on a basis which gives primary consideration to the welfare of the minor child and the safety of any other person eligible for relief.
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Now that the same-sex marriage legislation has been approved by the voters of the State of Maryland, we thought it would be a good idea to re-visit the issues surrounding the children of same-sex couples. If you are a frequent reader of our blogs, you may recall on February 28, 2011 we wrote about the current legal status of those children of same-sex couples. The passage of the same-sex marriage legislation in Maryland does not change the legal status of those children. The passage of the current legislation will, however change the legal status of children adopted or born during the course of the marriage of a same-sex couple.

In the State of Maryland, “a child born or conceived during a marriage is presumed to be the legitimate child of both spouses” in accordance with Section 1-206 of the Estates and Trusts Article of the Annotated Code of Maryland. The Code further states that “a child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes”. It is my belief that it would follow that that those children born or conceived during a same-sex marriage are the legitimate children of both parents, not only the spouse who gave birth to the child.
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As the Baltimore Sun reports, Thursday night, February 23, 2012, the Maryland Senate passed Govern Martin O’Malleys’ bill to legalize same-sex marriage in Maryland. We blogged on June 28, 2011 that New York had passed the law allowing same sex couples to wed, making it the 6th state to do so. Maryland is now the 8th state to approve same sex marriages. While it is a victory for supporters of the bill, many believe that the law will likely be up to the voters in November. If the law is passed by the voters, it will be effective in January 2013.

As expected the church has voiced their disapproval of the bill’s passing. The Maryland Daily Record reports that Baltimore’s Cardinal O’Brien states that the bill “threatens families.” He has pledged that the Baltimore Archdiocese will work to overturn the law and likely will be a key proponent in making sure the voters have a say in November.

We discussed the potential of this bill passing last February and discussed the changes we may see in the area of family law as a result of the law. . As stated in the blog, the law will affect custody and visitation law, as now same-sex couples who marry and adopt a child will both be the legal parents of the child; pre-nuptial agreements; and same sex divorces.
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In our August 25, 2011 blog we discussed custody evaluation as one of the services that can be available to parties subject to domestic litigation. The Circuit Court for Baltimore County is one of the County courts that currently offers custody evaluations to those litigants with highly contested custody matters. They also offer co-parent education classes, custody mediation, home studies and supervised visitation. These services are currently offered to parties who qualify at no cost. The litigant or the litigant’s attorney needs to either file a motion with the Court requesting these services or request the service at the scheduling conference.

Commencing October 3, 2011, the Circuit Court will begin charging for these services, due to a decrease in funding received from the State Judiciary. The fees will be as follows:

• Co-Parent Education Classes: $35 per person

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Many times in cases where I represent the Father in a Maryland custody case, child support is often an issue where perhaps some believe the man is treated somewhat inequitably. While I do not necessarily agree that is always the case, I have heard many Father’s say “If I were a woman, child support would not even be an issue, I would get what I am supposed to get.” Well for all those Dad’s out there, I am happy to report that I recently successfully argued a ‘voluntary impoverishment’ case. In this case, the non-custodial parent (who happens to be a Mother) is being forced to pay child support based upon what she has the ability to earn because the Court determined she was not doing so at the time of the hearing.

Voluntary Impoverishment cases are difficult cases to prove unless the non-custodial parent basically admits s/he not working to avoid paying child support. In Maryland, for the purposes of child support guidelines, a parent shall be considered “voluntarily impoverished” whenever the parent has made the free and conscious choice, not compelled by factors beyond his or her control, to render himself or herself without adequate resources. The factors a Court will consider in making such a determination as to whether a parent is a voluntary impoverished are: (1) his or her current physical condition; (2) his or her respective level of education; (3) the timing of any change in employment or other financial circumstances relative to the divorce proceedings; (4) the relationship between the parties prior to the initiation of divorce proceedings; (5) his or her efforts to find an retain employment; (6) his or her efforts to secure retraining if that is needed; (7) whether he or she has ever withheld support; (8) his or her past work history; (9) the area in which the parties live and the status of the job market there; and (10) any other considerations presented by either party.

In the particular case, after considering all of the above factors the key factor for the Court was (5) her efforts to find and retain employment. At the first hearing, the Court actually ordered the Mother to make a certain number of applications each week of which a certain number had to be in person interviews, not just on-line applications. When we returned for the second hearing, the Mother had a stack of unorganized computer print outs, which although requested to be provided prior to the second hearing date, were not provided until we were in Court that day. After a review of the documents and a cross examination that revealed the Mother was limiting her availability for potential employers; turned down a job because she didn’t want to start when they offered; and was not wearing appropriate interview attire, the Court found that the Mother was voluntarily impoverishing herself. As a result the Court imputed her an income equivalent to that which she had the ability to earn. The icing on the cake for my client was that the Court also imposed monetary sanctions for the Mother’s failure to timely provide the documents brought to Court on the date of the second and final hearing. At the end of the day, this particular Dad is finally receiving a decent amount of child support based on what the Mother has the ability to earn and is really a victory for all custodial parents, whether you happen to be Mom or Dad.
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As we have explained in previous blogs, in most counties in Maryland, the first scheduled court date once litigation has commenced is a scheduling conference. This is an opportunity for the litigants to tell the Court what hearings/trials they will need and court services they might need. Among those services to ask for may be a custody evaluation. In counties such as Anne Arundel County and Baltimore County custody evaluations are available at no cost in those custody cases where a Judge or Master can be convinced it is necessary. These would typically be cases where custody is highly contested or other exceptional circumstances exists (an unfit home, potential abuse, etc). A description of the custody evaluations performed in Anne Arundel County and Baltimore County can be found at their respective websites.

Depending on the county where the evaluation is ordered, an evaluation typically involves a meeting with both parents with the children, possibly a visit to each parent’s home, and interview with those who frequently interact with the parents and children (counselors, school staff, family members). Once the evaluation is completed, a report is typically drafted by the evaluator where he or she will recommend a custody arrangement and their reasons for recommending same. The Court may set in a conference date for the parties to review the evaluation, or the evaluation will be sent to the parties and/or their attorneys.
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As a family law practitioner I have represented a number of petitioners and respondents in protective order hearings throughout the state of Maryland. Unfortunately, the purpose and intent of a protective order is often misinterpreted and misused by the litigants. The purpose of the domestic violence statute as defined by Maryland case law is to protect and aid victims of domestic violence by providing a quick and effective remedy and to prevent further harm to the victim. It is not intended to produce pendente lite orders relating to custody, support, and marital property that are effective for the duration of the Protective Order. Oftentimes, Petitioners attempt to use this necessary and important statute to do just what it was not meant to do – obtain custody of a child in common with the respondent.

I recently represented a respondent in a Final Protective Order hearing , in which the petitioner used the staute to attept to gain custody of their chid. In that case the petitioner alleged an assault upon him by the respondent that resulted in their infant child being bounced off the bed, where she was laying at the time, and landing on the floor. The police were called to the residence three times over the course of less than 24 hours and no one was arrested or left the residence. Ironically, the respondent fled the state the next day with the assistance of a domestic violence program due to continuing abuse by the petitioner upon her. Nevertheless, the petitioner filed a Temporary Protective Order, which was granted and awarded him custody of the parties infant child. My client was already out of the state (with the child) and once she was served with the Order did appear for the Final Protective Order Hearing. Once the Petitioner put on his case, the evidence in my opinion, was abundantly clear that even in the light most favorable to the petitioner, that there had been at most a mutual scuffle which was instigated by the petitioner and that petitioner’s only motivation in filing the protective order was to obtain custody of the child. This is a complete misuse of the domestic violence statute, i.e. protective order statute. At the conclusion of the petitioner’s case I made a Motion to Dismiss the Petitioner’s Protective Order as he had not met his burden of proof establishing by clear and convincing evidence that abuse had occurred. The Court agreed that even in the light most favorable to the petitioner, he had not met his burden and dismissed the Protective Order without the need for my client to put on her case. In this particular situation, the Court was keenly aware of the purpose and intent of the domestic violence statute and did not grant the Final Order.
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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.

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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.

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There is currently legislation pending before the Maryland General Assembly that would create a rebuttable presumption that joint legal and physical custody to each parent for equal periods of time is in the best interest of the child in certain custody proceedings. You can find the pending legislation at the Maryland General Assembly’s website. This bill would require parties in custody proceedings to overcome the statutory presumption that joint custody is in the child’s best interest. This would mean parties would enter a custody hearing on equal footing with respect to having the child in their shared custody and the Judge would have to find that one of the parties met their burden of overcoming the presumption in order to award a party sole physical or legal custody. The presumption aligns with the rights of parents without a custody order, in that parents have equal rights to their children, without a custody order stating otherwise. However, there is currently a great debate among family law attorneys over this pending legislation. Those who propose the bill support fathers’ rights, believe that parents may fight less over custody if the presumption is in place, and believe this takes such an important decision out of the court’s hands. Those who oppose the bill believe that the parties who have to take their custody case to trial should not be the ones who have a presumption of joint custody because they can not get along. Further, they do not believe that this decision should be taken out of the court’s hands, that the other best interest factors will not be considered if the presumption is in place, that those who are awarded joint custody who can not communicate will be back in court again and again, and that the current system is working well.
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