Articles Posted in Child Custody

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This article discusses the application of constructive civil contempt in a recent child custody case. It is Part 3 of a three-part series. Part 1 provides an overview of the law of contempt in Maryland. Part 2 includes a summary and analysis of Breona C. v. Rodney D., 253 Md. App. 67 (2021), which clarified the law of civil contempt in child custody cases.

 

Lessons from the Breona C. Case

As discussed in Part 2, the opinion issued by the Appellate Court of Maryland in Breona C. v. Rodney D., 253 Md. App. 67 (2021) set forth important lessons regarding the application of constructive civil contempt in child custody cases:

  1. An order finding a person in constructive civil contempt must include a valid sanction that is distinct from the purge provision and the requirement the Court seeks to enforce.
  2. An order finding a person in constructive civil contempt must include a valid purge provision that allows the alleged contemnor to avoid the sanction by taking some defined, specific action.
  3. An order finding a person in constructive civil contempt must be designed to compel present or future compliance with a court order, not to punish past noncompliance.

 

Constructive Civil Contempt in a Recent Child Custody Case

When parents share custody of their children, the parents must cooperate and communicate with each other to follow their custody order and co-parent effectively. Terms in a court order related to minor children (e.g., custody and child support) are modifiable by a court after applying a two-prong analysis. First, a court must find a material/substantial change in circumstance has occurred and then make a determination of the best interests of the children. When parents do not cooperate and communicate with each other to co-parent effectively, this frequently results in attempts to modify custody and petitions for contempt.

 

Our team was contacted by a prior client who had been served with a Petition for Contempt filed against him by his child’s mother. In our previous representation of the client, we reached a Consent Order, which established a custody schedule for each parent with their child. During the specific week at issue in the Petition for Contempt, the mother was scheduled to have the parties’ child in her care for a specific period of time pursuant to the terms of the Consent Order. During this particular week, the parties’ child had agreed upon organized extracurricular activities near our client’s home, which would also take the child out of the state for his participation.

 

My client and the child’s other parent agreed that my client would take their child to the activity on the first evening of the other parent’s scheduled access, then the other parent would pick their child from the activity and take the child from the remainder of their scheduled access and take the child to the activities, which would be out of state. The other parent did not pick the child up from the scheduled activity as arranged, so my client kept their child that night and asked the other parent to pick up their child to start their weekend the following morning. The other parent did not pick up their child the following day or the morning of the out-of-state travel. When faced with \the child missing the activity or taking the child himself, my client took their child to the out-of-state activity so the child would not miss it.

 

When my client returned home the following evening after the conclusion of the out-of-state activity, the child’s other parent picked up the child from my client. Two days later, the other parent filed a Petition for Contempt against my client, which alleged that my client violated the Consent Order by failing to make their child available to her during her scheduled parenting time.

 

Applying the Lessons from the Breona C. Case to Serve Our Client

Our approach to defend our client against the allegation that he violated the Consent Order was two-fold: (1) our client did not prevent the other parent from spending her scheduled weekend with their child, it was the other parent who failed to exercise parenting time; and (2) even if our client violated the Consent Order, that violation was cured when the other parent finally retrieved their child, and therefore our client could not be found in constructive civil contempt because there was no ongoing noncompliance to correct through the contempt process.

 

Relying on the lessons from Breona C., we argued that the purpose of constructive civil contempt is to compel present or future compliance with a court order, not to punish past noncompliance; and in this case, our client remained in compliance with the Consent Order (or at a very minimum, was in compliance with the Consent Order by Sunday evening). The judge agreed with our position and denied the parent’s Petition for Contempt.

 

In many ways, the facts of this case were very similar to the facts of the Breona C. case. However, there was one critical difference. In Breona C., Breona was actively violating the operative custody order when the Petition for Contempt was filed against her, but Breona began complying with the custody order before the Contempt Hearing. In our case, there was no allegation that our client was actively violating the Consent Order at the time the Petition for Contempt was filed against him. This may seem like an insignificant distinction, but this fact turned out to have a major impact for our client.

 

You may recall that the Breona C. case instructs that the purpose of constructive civil contempt is to coerce or compel compliance with a court order, not to punish completed noncompliance. Because the other parent filed the Petition for Contempt against our client at a time when our client was undisputably complying with the Consent Order, we argued that the other parent’s Petition for Contempt was filed without substantial justification and filed a motion requesting that the other parent be ordered to pay our client’s attorneys’ fees pursuant to Maryland Rule 1-341. In most cases, the general rule is that each party must pay their own attorneys’ fees. There are some exceptions to this general rule, including Maryland Rule 1-341, which is “an extraordinary remedy” and allows a court to order one party to pay the other party’s attorneys’ fees if an action is maintained without substantial justification. We argued that, even accepting all of the other parent’s allegations as true, our client could not possibly have been found in constructive civil contempt because our client was undisputably complying with the Consent Order when the Petition for Contempt was filed, and therefore the other parent lacked substantial justification for filing the Petition for Contempt. The judge agreed with our position and ordered other parent to pay a portion of our client’s attorneys’ fees.

 

 

This case illustrates the importance of understanding and properly applying lessons from caselaw and the Maryland Rules to the real-life situations our clients face. Obtaining an order for attorneys’ fees pursuant to Maryland Rule 1-341 is very rare. Our client would not have achieved such a favorable result without our thorough research, clear writing, and persuasive arguments.

 

If you believe that you may need to file a petition for contempt to enforce a court order, or if a petition for contempt has been filed against you contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

 

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This article includes a summary and analysis of Breona C. v. Rodney D., 253 Md. App. 67 (2021), which clarified the law of civil contempt in child custody cases. It is Part 2 of a three-part series. Part 1 provides an overview of the law of contempt in Maryland. Part 3 addresses the application of Breona C. and constructive civil contempt in a recent case.

Constructive civil contempt in child custody cases

In 2021, the Appellate Court of Maryland (formerly known as the Court of Special Appeals), issued a landmark opinion clarifying the application of constructive civil contempt in child custody and access matters. See Breona C. v. Rodney D., 253 Md. App. 67 (2021). In the wake of the Breona C. opinion, many family law attorneys remarked that the decision may result in contempt ceasing to be a useful mechanism to enforce child custody orders. Although the Breona C. opinion limits the application of constructive civil contempt, contempt remains a viable means to compel compliance with custody orders in the right circumstances.

 

What happened in the Breona C. v. Rodney D. case?

In Breona C., the operative custody order granted Rodney D. primary physical custody of the parties’ six-year-old child and granted Breona C. parenting time with the child every weekend. Id. at 71. At the end of one of Breona’s weekends with the child, Breona refused to return the child to Rodney as required by the custody order due to concerns about the child’s health and safety. Id. Rodney filed an emergency petition to hold Breona in contempt for violating the custody order. Id. at 72. The next day, Breona sought and was granted a Temporary Protective Order, which awarded her temporary custody of the child. Id. A few weeks later at the Final Protective Order hearing, Breona’s request for a Final Protective Order was denied. Id. Therefore, the custody order which awarded Rodney primary physical custody was restored.

 

However, Breona refused to return the child to Rodney as required by the operative custody order. Id. In response, Rodney filed an emergency motion for custody, and the court ordered Breona to return the child to Rodney. Id. Breona then returned the child the Rodney as ordered by the court, and Mother remained in compliance with the court order from that point forward. Id.

 

A few months later, the court held a hearing on Rodney’s petition for contempt. The court held Breona in contempt for violating the custody order by not returning the child to Rodney immediately after the Final Protective Order requested by Breona was denied. Id. The contempt order did not include a sanction, but stated that Breona may purge her contempt with strict compliance to the operative custody order. Id.

 

Breona appealed the order finding her in contempt, arguing that the contempt order was improper because it punished past conduct and included a “forever purge” provisions that did not allow Breona any opportunity to purge her contempt. Id. at 72–73.  The Appellate Court agreed with Breona and reversed the order of contempt. Id. at 73.

 

Why is the Breona C. case important?

The Appellate Court held that “an order holding a person in constructive civil contempt is not valid unless it: (1) imposes a sanction; (2) includes a purge provision that gives the contemnor the opportunity to avoid the sanction by taking a definite, specific action of which the contemnor is reasonably capable; and (3) is designed to coerce the contemnor’s future compliance with a valid legal requirement rather than to punish the contemnor for past, completed conduct.” Id. at 74.

 

The Appellate Court identified three primary reasons why the order finding Breona in constructive civil contempt was improper. First, the contempt order lacked a valid sanction. Id. at 75. Second, the contempt order lacked a valid purge provision. Id. Third, the contempt order punished “past noncompliance rather than compelling future compliance.” Id. at 76.

 

 

What is a valid sanction?

A valid sanction “must be distinct from the purge provision and the valid legal requirement the court seeks to enforce.” Id. at 74. A critical consideration is that the sanction must serve the coercive purpose of civil contempt. A valid sanction must impose a penalty such as a fine, period of incarceration, or other penalty. To be coercive, the penalty must provide for purging to allow the person in contempt to avoid the penalty by engaging in some defined, specific conduct. The Appellate Court noted that if the sanction is not distinct from the purge provision, then fulfilling the purge provision would complete, rather than avoid, the sanction. Id. In other words, it is impossible to purge a contempt if the purge provision is the sanction. The Appellate Court further noted that if the sanction is to abide by the existing court order, then “there is no coercive mechanism at all. Instead, there is just a second order directing compliance with an existing order.” Id. at 74–75.

 

What is a valid purge provision?

While the sanction and purge provision must be distinct from each other, the two concepts are deeply intertwined. Like a valid sanction, a valid purge provision must serve the coercive purpose of civil contempt.

 

A valid purge provision must allow the person in contempt to avoid the sanction by taking some defined, specific action. This is how the coercive purpose of civil contempt is served.

 

In the Breona C. case, the perpetual obligation to comply with the existing custody order was not a valid purge provision because it did not allow Breona to avoid a defined sanction by engaging in specific conduct.

 

What if a person regularly violates the operative order, but technically starts complying with the order before a Petition for Contempt is filed?

 

This question was not specifically at issue in the Breona C. case. Breona began complying with the custody order after Rodney filed a Petition for Contempt, but before the contempt hearing occurred. Breona’s compliance with the custody order was delayed, but she was complying with the custody order for months prior to the contempt finding. The contempt order was improper because it did not compel or coerce Breona to comply with the custody order in the present or future; instead, it punished Breona for past, completed noncompliance.

 

In the Breona C. opinion, the Appellate Court included a significant footnote contemplating a possible situation in which a person regularly violates a court order, and then begins complying with the operative court order by the time of the contempt hearing. “We are not confronted here with a situation in which a party is engaged in a continuing or repetitive pattern of conduct in violation of a court order that, due to its continuing or repetitive nature, could reasonably be found to be ongoing at the time of a contempt hearing even if the putative contemnor is not technically out of compliance with the order at the moment of the hearing. We do not foreclose the possibility that an order of constructive civil contempt could be issued in such a circumstance.” Id. at 76 n.6. In other words, it is possible that a party could be found in constructive civil contempt even if that party is technically complying with the operative order at the time of the contempt hearing. For this to occur, the party’s noncompliance with the court order must be so continuing or repetitive that the noncompliance can be considered ongoing despite that party’s present compliance.

 

If you believe that you may need to file a petition for contempt to enforce a court order, or if a petition for contempt has been filed against you contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

 

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This article includes a brief overview of contempt in Maryland. It is Part 1 of a three-part series. Part 2 addresses the landmark case of Breona C. v. Rodney D., which clarified the law of civil contempt in child custody cases. Part 3 addresses the application of Breona C. and constructive civil contempt in a recent case.

 

What is contempt?

Put simply, contempt, also referred to as contempt of court, is a violation of a court order or conduct that disrupts the orderly functioning of the court. There are multiple different forms of contempt under Maryland law. Contempt can be either civil or criminal, and each variation can be either constructive or direct. Maryland law recognizes four main forms of contempt: (1) constructive civil contempt, (2) constructive criminal contempt, (3) direct civil contempt, and (4) direct criminal contempt. These different forms of contempt are not always distinct. In some situations, the same occurrence could be categorized as multiple types of contempt or entail features of multiple types.

 

What is civil contempt?

Civil contempt can take many forms, but most commonly involves a failure to abide by the terms of a court order. Civil contempt is intended to compel present or future compliance with a court order. Civil contempt is not intended to punish past or completed misconduct.

 

What is criminal contempt?

Criminal contempt involves “behavior directed against the dignity and authority of the court that tends to bring the court into disrepute or disrespect.” Cameron v. State, 102 Md. App. 600, 607 (1994). In contrast to civil contempt, criminal contempt is punitive in nature, meaning that criminal contempt can impose a penalty for past misconduct.

 

What is direct contempt?

Md. Rule 15-202(b) defines direct contempt as “a contempt committed in the presence of the judge presiding in court or so near to the judge as to interrupt the court’s proceedings.” In other words, a direct contempt occurs inside the courtroom or close enough to the courtroom that the court’s proceedings are disrupted.

 

What is constructive contempt?

Md. Rule 15-202(a) defines constructive contempt as “any contempt other than a direct contempt.” In other words, constructive contempt occurs outside of the courtroom and does not disrupt the normal operation of the court’s proceedings.

 

Can I enforce a custody order with contempt?

Generally speaking, yes. If a court has issued an order involving custody of or access with a minor child, and the other parent is actively violating the terms of the court order, you can file a petition for contempt to compel compliance with the terms of the court order.

For example, if a parent unjustifiably refuses to return your child to you for your parenting time ordered by the court, you may be able to compel compliance with the custody order via constructive civil contempt. However, there are some limits to constructive civil contempt.

In 2021, the Appellate Court of Maryland (formerly known as the Court of Special Appeals), issued a landmark opinion clarifying the application of constructive civil contempt in child custody and access matters. See Breona C. v. Rodney D., 253 Md. App. 67 (2021). In the wake of the Breona C. opinion, many family law attorneys remarked that the decision may result in contempt ceasing to be a useful mechanism to enforce child custody orders. Although the Breona C. opinion limits the application of constructive civil contempt, contempt remains a viable means to compel compliance with custody orders in the right circumstances.

 

What is a contempt hearing for child support in Maryland? 

When the person who owes child support falls behind, the party who receives the support can file a Petition for Contempt or the Child Support Enforcement Agency can file on behalf of the person who receives the payment of child support. A contempt hearing for child support is to determine if the party paying support is behind in payments. If it is determined the party is behind in payments and child support arrearages are owed, a court can order a sum of money to be paid as a purge within a period of time before imposing a potential period of incarceration.

 

How to file contempt of court in Maryland

To file a Petition for Contempt in Maryland, you must file a Petition and proposed Show Cause Order in the Circuit Court which issued the Order you allege has been violated.

 

If you believe that you may need to file a petition for contempt to enforce a court order, or if a petition for contempt has been filed against you contact Monica Scherer, Esq. at 410-625-4740 to speak with an experienced family law attorney at Silverman Thompson.

 

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The Child Support Administration is required by law to review the Child Support Guidelines every 4 years to ensure that application of the Child Support Guidelines results in appropriate child support awards. The Child Support Administration must report its findings and recommendations to the General Assembly. During the 2020 Legislative Session, the General Assembly passed changes to Maryland’s child support laws, some of which took effect on July 1, 2022. One year later, this post discusses the changes to Maryland’s child support laws and the impact of these developments.

Changes to the Child Support Guidelines

Effective July 1, 2022, the schedule of basic child support obligations increased for parents with a combined adjusted actual income greater than $19,200 per year. This change recognizes that the costs of raising children have increased.

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Use and possession applies to the family home and family use personal property.

What is considered the “family home”?

In Maryland, the “family home” is statutorily defined as real property in the State that was (1) used as the principal residence of the parties when they lived together, (2) is owned or leased by one or both of the parties at the time of the divorce proceeding, and (3) is being used or will be used as a principal residence by one or both of the parties and a child.

A “family home” does not include real property that was (1) acquired before marriage, (2) acquired by inheritance or gift from a third party, or (3) excluded by a valid agreement.

What is considered “family use personal property”?

The term “family use personal property” is also statutorily defined in Maryland and refers to anything tangible that is used primarily for family purposes.  It is limited to only property that was acquired during the marriage of the parties.  Examples of family use personal property include cars, furniture and furnishings, household appliances, and electronics.

When is use and possession granted?

The custodial parent of a minor child often requests use and possession of the family home in order to maintain a stable environment for the child.  Maryland courts can exercise its powers to award use and possession to enable any child of the family to continue to live in the environment and community that are familiar to the child, and to provide for the continued occupancy of the family home and possession and use of family use personal property by a party with custody of a child who has a need to live in that home.  Use and possession under this statute will not be awarded in Maryland if the parties do not have any minor children.

The use and possession statute’s main purpose is to benefit the minor child or children of the family.  A parent’s or spouse’s needs are of no consideration except as those needs contribute to, or reflect upon, the obligation she or he owes to the minor child or children.  The statute is meant to protect the interests of any minor child caught in the cross-fire of a divorce case, with the goal of making certain a child need not suffer the unsettling loss of his or her home during the course of the litigation.

What factors are considered in awarding use and possession?

A Maryland court can consider several factors when determining an award of use and possession.  Generally, the interest of the minor child or children is given the greatest weight.  Other factors include (1) the need of either party to possess and use the family home as a dwelling place, (2) how possession and use would affect either party’s ability to produce income, and (3) whether any party would suffer undue hardship by awarding use and possession.

 How long is the use and possession granted for?

In Maryland, courts can award exclusive use and possession of the family home and family use personal property to a custodial parent for up to three years from the date of divorce.  An award for use and possession may terminate prior to the three years if the party who was granted use and possession remarries.

 When can a Court award use and possession?

The latest point at which a Maryland court has authority to award use and possession of a family home is when the court grants an annulment or divorce.  When a court grants an annulment or an absolute divorce, regardless of how the family home or family use personal property is titled, owned, or leased, the court may (1) decide that one of the parties shall have the sole use and possession of that property, (2) divide the possession and use of the property between the parties, or (3) decline to award use and possession.  A Maryland court can also award use and possession of a family home on an interim basis during the pendency of a divorce action.

The courts will also determine how financial responsibilities related to the family home and family use personal property are allocated, if the parties have not been able to come to an agreement.  The final disposition of the family home and family use personal property will depend on certain factors, including how other marital property was divided in the divorce, if alimony was awarded, and whether a monetary award was granted or is necessary to achieve equitable division.

Navigating the court system in a divorce can be a difficult and stressful process.  If you are considering a divorce or are currently involved in a divorce proceeding, we encourage you to speak to an experienced family law attorney who can assist you in navigating the process from start to finish.

 

For more information, contact Monica Scherer, Esq. at 410-625-4740

 

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What is a Protective Order?

By Maryland statute, a Protective Order is a court order that says one person must refrain from doing certain acts against another person. While not legally accurate, many people commonly refer to a Protective Order as a Retaining Order or Ex-Parte.

Who can obtain a Protective Order in Maryland?

In order for the Court to grant you a Protective Order, you must testify before a Judge that you have a certain type of relationship with the person you want to be protected from.

The following relationships qualify for a Protective Order in the State of Maryland:

  • are married, divorced, or currently separated;
  • are related by marriage, blood or adoption (this includes stepparents and stepchildren if they have lived with you for at least 90 days in the past year);
  • have lived together in a sexual relationship for at least 90 days in the past year;
  • are the parents of a child together;
  • have had a sexual relationship with each other in the past year;
  • are a vulnerable adult;
  • were raped or sexually assaulted by the other person (including attempts) in the past six months.

Where do I file for a Protective Order in Maryland?

If you need to file for a Protective Order, visit the clerk’s office of your local District or Circuit Court, Monday through Friday from 8:30 a.m. until 4:30 p.m.  If the District or Circuit Court is closed you may file for a Protective Order with your local District Court Commissioner. They are generally available 24 hours per day, 7 days per week. You can locate your nearest District Court Commission on the Maryland Court’s website here: https://www.courts.state.md.us/district/directories/commissionermap  This site also has links to the Petition For Protective form that the Court will require you to fill out.

Why should I file for a Protective Order?

 If you have been abused by being placed in fear of serious imminent bodily harm (threats of bodily harm that you have taken seriously), been subject to an act that causes serious bodily harm (punching, hitting, kicking, choking, stabbed, shot, etc.), assaulted, attempted rape or sexual assault,  raped or sexually assaulted, falsely imprisoned, stalked (criminal standard), subjected to revenge porn or your child has been subjected to mental injury, the Maryland Courts have a process to help protect you from further abuse. If you are being victimized by someone you have an intimate or familial relationship with, you should file a Petition for Protection from Abuse (the document you will fill out to try to obtain a Protective Order).  It is important to note a Protective Order MAY NOT be obtained based on harassment. If you are being harassed you may qualify for a Peace Order, but not a Protective Order.

What do I need to prove to obtain a Final Protective Order in Maryland?

In order for the Court to grant you a Protective Order, you will need to prove two things to a Judge. First, you will need to prove that you and the person you want to be protected from have a qualifying relationship, meaning that you are eligible to receive assistance (also called “relief”) from the Court. Second, you will need to prove that the person committed harmful acts  and abuse against you.  You must prove these two things to the Judge by a “preponderance of the evidence,” meaning that it is more likely than not that you are a person eligible for assistance and that the person committed harmful acts/abuse against you.

What can the Court grant in a Maryland Protective Order?

When you file your Petition for Protection, if a Judge finds that you are a person eligible for relief, you will be granted a Temporary Protective Order. This Temporary Protective Order is meant to provide you immediate relief until the Final Protective Order hearing where both you and the other person will have the opportunity to testify and provide evidence to the Judge. The Temporary Protective Order generally lasts for one week and the Final Protective Order can last for up to one year.

 When a Temporary Protective Order is granted, the Court can order:

  • the other person to stop abusing, threatening, or harassing you;
  • the other person to have no contact with you;
  • the other person to stay away from your home, work, child care, or school;
  • the other person to leave your home (if you are married OR if your name is on the lease or deed);
  • if applicable, address temporary child custody, possession of a pet, safeguards at child-care providers, and possession of firearms.

When a Final Protective Order is granted, the Court can order:

  • the other person to stop abusing, threatening, or harassing you;
  • the other person to have no contact with you;
  • the other person to stay away from your home, work, or school;
  • the other person to leave your home and award use and possession of the home (if you are married OR if your name is on the lease or deed);
  • if applicable, surrender of possession of a pet and possession of firearms;
  • if applicable, use and possession of a jointly owned vehicle (your name must be on the title);
  • if applicable, counseling for domestic violence or substance abuse;
  • if applicable, custody of children in common and a temporary child access or visitation schedule;
  • if applicable, emergency family maintenance or financial support; and
  • any other relief that a judge determines may be necessary to protect you from abuse.

If you or someone you know is in need of a Protective Order, we encourage you to speak to an experienced family attorney at Silverman Thompson who can help you decide the right choice that is specific to your circumstance. For more information, contact Monica Scherer, Esq. at 410-625-4740. 

 

Monica L. Scherer, Esq. 

mscherer@silvermanthompson.com 

(410) 385-2225 

  

Joseph S. Stephan, Esq. 

jstephan@silvermanthompson.com 

(410) 385-2225 

  

Erin D. Brooks, Esq. 

ebrooks@silvermanthompson.com 

(410) 385-2225 

 

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It is important to be aware that Maryland Courts and Orders recognize two parts to custody in the State of Maryland, physical custody and legal custody.

What does Physical Custody mean in Maryland?

If you have physical custody of your child, it means that you have the right and obligation to provide a home for your child at given times, and to make the day-to-day decisions required during the time your child is actually with you. In Maryland, physical custody can be primarily with one parent and your child visits the other parent or shared between the parents.

What does Legal Custody mean in Maryland ?

If you have legal custody of your child, it means that you have the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the life and welfare of your child. It is important to understand that legal custody has nothing to do with where your child lives. In Maryland, legal custody can be sole, joint, or joint with tiebreaker.  Sole legal custody means one parent makes these decisions without the need to have the input of the other parent.  Joint legal custody means both parents work together to make agreed upon decisions for their child. Joint custody with tiebreaker requires both parents to work towards an agreed upon decision on the issue(s). However, if an agreement cannot be reached after trying to do so in good-faith, the parent with  tiebreaking authority makes the final decision on the issue.

How do Maryland Courts decide custody?

Courts in Maryland resolve custody and visitation disputes between parents based upon a determination of what is in the “best interests” of the child. You should understand that this determination may be different from what might be in your or the other parent’s best interests. A Judge will make this determination after considering the testimony and evidence you and the other parent present during your case. There are a host of standard factors a Judge will consider, but a Judge also takes into consideration the special circumstances of each case provided the evidence is presented. It is important to understand the importance and potential complexity of this determination as it is done on a case-by-case basis.

How can I modify a Custody Order in Maryland?

In order to modify a Custody Order, you must first prove to a Judge that something significant has happened since the initial Order was entered by the Judge. This ‘something significant’ is referred to as a “material change in circumstance.”  A material change is not that you were unhappy with the Court’s initial decision. You must also prove that the change you are asking for is in the best interest of your child. It is important to understand the importance and potential complexity of proving that you have met this standard.

Do I need a Court Order in Maryland?

When a child is born or adopted to two parents, Maryland Courts automatically and informally recognize these parents as having the same rights and obligations to their child. There is no inherent determination of physical or legal custody upon birth of a child. If you and your child’s other parent are dealing with issues such that you need assistance in determining where your child lives, who makes decisions for your child, when the child is with each parent for the holidays, how much time each parent has for vacations and the summer months, etc. a Court Order will be beneficial. A Court Order can help define the rights and responsibilities of each parent and, if applicable, determine the amount of child support that one parent may need to pay to the other in support of the child. It is important to understand the importance and potential complexity of asking the Court to enter a Custody Order.

What is a Parenting Plan?

A Parenting Plan is a document that defines the specific roles and responsibilities for each parent as they communicate with each other and care for their child or children. The Maryland Courts have created a Parenting Plan, with instructions, to help Maryland families. The Parenting Plan and instructions can be found on the Court’s website here. Currently, Maryland Courts require parents to complete a Parenting Plan during the court process. It is important to understand the importance and potential complexity of completing a Parenting Plan.

 

If you or someone you know needs an attorney for custody matters, we encourage you to speak to an experienced family attorney at Silverman, Thompson, Slutkin & White, LLC who can help you decide the right choice that is specific to your circumstance. For more information, contact Monica Scherer, Esq. at 410-625-4740. 

 

 

Monica L. Scherer, Esq. 

mscherer@silvermanthompson.com 

(410) 385-2225 

  

Joseph S. Stephan, Esq. 

jstephan@silvermanthompson.com 

(410) 385-2225 

  

Erin D. Brooks, Esq. 

ebrooks@silvermanthompson.com 

(410) 385-2225 

 

 

 

 

 

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What is an Absolute Divorce?

The effect of Maryland’s absolute divorce is parallel to a traditional divorce; it is the final termination of the marriage. In an absolute divorce, custody, visitation, and child support terms between both parties are set, both parties are granted the right to live separately and apart, a legal name change may be granted (the resumption of a former name), and even remarry if they choose. An absolute divorce also allows the court to decide on matters regarding alimony and marital property, including any division of assets, transfer of retirement interests, and any other equitable distribution of real property, personal property and pension/retirement assets acquired during the course of the marriage. Ultimately, both parties are granted the right to sever all legal and financial ties from one another.

What are the grounds for divorce in Maryland?

In Maryland, the court may grant an absolute divorce on the grounds of:
(1) Adultery;
(2) Desertion, if it has continued for 12 months without interruption before filing for an Absolute Divorce; and the desertion was deliberate and final; and there is no reasonable expectation of reconciliation;
(3) Conviction of a felony or misdemeanor in any state or in any court of the United States if before the filing of the application for divorce the defendant was sentenced to serve at least three years or an intermediate sentence in a penal institution and served twelve months of that sentence;
(4) A twelve-month separation where the parties lived separate and apart without cohabitation for twelve uninterrupted months before the filing of the application for divorce;
(5) Insanity if the insane spouse has been confined in a mental institution, hospital, or other similar institution for at least three years before the filing of the application for divorce; the court must then determine from the testimony of at least two physicians who are competent in psychiatry that the insanity is incurable and that there is no hope of recovery; and one of the parties has remained a resident of this state for at least two years prior to the filing of the application for divorce;
(6) Cruelty of treatment toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation;
(7) Excessively vicious conduct toward the complaining party or a minor child of the complaining party, if there is no reasonable expectation of reconciliation;
(8) Mutual consent so long as the parties execute and submit to the court a written settlement agreement signed by both parties that resolves all issues arising from the marital relationship (child custody, visitation, support, alimony and distribution of real and personal property, and asset division), neither party has filed a pleading to set aside the settlement agreement prior to the divorce hearing required under the Maryland Rules, and both parties appear before the court at the absolute divorce hearing.

Can I file for divorce if I have not been separated for one year?

While a 12-month statutory “no fault” ground remains a common way to receive an absolute divorce in Maryland, a party may be eligible to be granted an absolute divorce on fault based grounds requiring no period of separation if one can prove adultery, cruelty of treatment, excessively vicious conduct or have grounds for mutual consent.

What can I do if I do not have grounds to file for an Absolute Divorce?

A party may file for a Limited Divorce on the following grounds:
(1) Cruelty of treatment of the complaining party or of a minor child of the complaining party;
(2) Excessively vicious conduct to the complaining party or to a minor child of the complaining party;
(3) Desertion; or
(4) Separation, if the parties are living separate and apart without cohabitation

What is a Limited Divorce?

In Maryland, a limited divorce is not a final divorce. It does not terminate a marriage in its entirety. A limited divorce does not allow a spouse to remarry or to move forward in another relationship. A limited divorce is typically recommended in cases where division of marital property, spousal support, child custody, or child support are disputed and relief is sought by either party. Essentially, a limited divorce allows a party who has not yet met the grounds for an absolute divorce to obtain necessary relief from the court for custody, visitation, child support, use and possession of family home, family use personal property and family vehicle (when minor children are involved) in advance of a twelve-month separation.

What if the difference between a Limited Divorce and an Absolute Divorce?

The State of Maryland recognizes two types of divorce, an absolute divorce and a limited divorce.
An absolute divorce is the final termination of the marriage where custody and visitation terms for minor children are set, both parties are granted the right to live separately and apart, legally change their names, divide marital property, seek spousal support, and even remarry if they choose. In some cases, a physical separation of more than 12 months in different homes is not necessarily required before the filing for an absolute divorce if a party can prove adultery, cruelty of treatment, excessively vicious conduct or have grounds for mutual consent.

However, there are a number of scenarios where spouses may not be eligible to obtain an absolute divorce. Where a fault based divorce cannot be proven, a 12-month separation has not yet accrued, and the parties cannot mutually consent to a settlement agreement and some relief from the court in the interim is necessary, a limited divorce is then an option.

A limited divorce differs from an absolute divorce in that it is not a final divorce. A limited divorce does not allow a spouse to remarry. Furthermore, marital property acquired by each party even after a limited divorce is awarded remains a part of divisible marital property. The court is required to value all marital property only at the time of absolute divorce. Filing for a limited divorce will allow the court to decide on matters regarding child custody, child support, and spousal support.

If the parties later satisfy the grounds for an absolute divorce while the action for limited divorce is still pending in the court, the complaint for limited divorce can be amended to include a request for absolute divorce. Simply put, when an absolute divorce issue is not yet ripe, a limited divorce proceeding can allow a party to obtain certain relief from the court.

What can a Court award in a Limited Divorce?

Generally, in a limited divorce proceeding, the court can determine child custody and visitation, when children are involved the use and possession of family home, vehicle, household furnishings, child support, temporary alimony, and can award attorney fees.

What can a Court award in an Absolute Divorce?

Generally, in an absolute divorce proceeding, the court can change a spouse’s name back to any former name, award custody, decide visitation, determine the amount of child support and alimony to be paid, grant a monetary award, when children are involved decide the use and possession of family home, vehicle, household furnishings, award attorney and expert fees and costs, order certain jointly titled assets to be sold, divide or order the sale of household furnishings, and order the division of pension and retirement accounts.

How long does it take to get an uncontested divorced in Maryland?

It varies in each county, however if you already have a complete Marital Settlement Agreement signed by both parties and the proceeding is uncontested, typically between 3 – 6 months.

How long does it take to get divorced in Maryland?

It varies by county, however if your matter is contested and all issues are not resolved by a signed Marital Settlement Agreement, you can expect your contested divorce to take anywhere from 1-2 years.

 

If you or someone you know is considering divorce, we encourage you to speak to an experienced family attorney at Silverman, Thompson, Slutkin & White, LLC who can help you decide the right choice that is specific to your circumstance.

For more information, contact Monica Scherer, Esq. at 410-625-4740. 

 

 

Monica L. Scherer, Esq. 

mscherer@silvermanthompson.com 

(410) 385-2225 

  

Joseph S. Stephan, Esq. 

jstephan@silvermanthompson.com 

(410) 385-2225 

  

Erin D. Brooks, Esq. 

ebrooks@silvermanthompson.com 

(410) 385-2225 

 

 

 

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Some parents are facing difficult decisions during this COVID-19 pandemic, including whether their children should be physically near a parent that is working with the public. For some families, it means that one parent temporarily lives in another part of the house. A related CNN article can be found here.  For other families, it means one parent temporarily lives in another place altogether. A related ABC article can be found here.

But, for co-parents that live in separate households, the thought of children being near a parent that is a first responder, a front-line worker, or an essential employee can lead to even more difficult decisions. The guidance from the Maryland Judiciary is clear:

All court orders for a child’s custody, parenting time, and child support are still in effect. In some situations, if permitted under the court order, custodians can jointly adjust their shared parenting responsibilities in ways that they agree are best for the children. If custodians are not able to agree, the court order controls.

When one parent refuses to allow the other parent to spend time with their children, often the refusing parent could be faced with a Petition for Contempt for not following a court order. The ramifications from a finding of contempt can be far-reaching and can include civil and/or criminal repercussions.

Pursuing or defending allegations of contempt should not be taken lightly and is a serious matter. If you dealing with this type of situation and need guidance, reach out to an experienced family attorney at Silverman, Thompson, Slutkin & White, LLC for assistance.

For more information, contact Monica Scherer, Esq. at 410-625-4740. 

 

 

Monica L. Scherer, Esq. 

mscherer@silvermanthompson.com 

(410) 385-2225 

  

Joseph S. Stephan, Esq. 

jstephan@silvermanthompson.com 

(410) 385-2225 

  

Erin D. Brooks, Esq. 

ebrooks@silvermanthompson.com 

(410) 385-2225 

 

  Continue reading →

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The spread of COVID-19 has stressed many family dynamics on a daily basis. Kitchen tables are now elementary school classrooms and backyards now host recess. With Maryland’s Stay-At-Home Order still in place, children and parents are finding themselves working through finding a new normal.

Parents that share time with their children between different households face an even larger set of challenges. Court orders that define parenting time, holiday schedules, and other child-focused decisions often do not help guide parents through questions like: “What happens in a global, viral pandemic?”.

With the seeming constant change to regulations and recommendations, the best recommendation is flexibility, while understanding your Order remains in place absent an agreement to deviate. Communicate with your children and your co-parent to make the best decision possible for your children and your collective family. Each day may bring new challenges and it is important that co-parents do their best to communicate about those challenges and remain open and flexible to the resolutions. Family flexibility is the new normal.

The Maryland Judiciary offers family services that can help co-parents work through decision making, including parenting plans and mediation services. Parenting Plan details are available here.

Another source of guidance may be working with a parenting coordinator.  If you do not have a current Order for a parent coordinator, and both parents agree to try this route, the Court is still processing Consent Orders.  During this period of social distancing and the Stay-At-Home Orders, mediation and parent coordination services are taking place via telephone and video conferencing and  is an effective way to gain assistance from a professional.

If you need help navigating the new normal, please reach out to an experienced family attorney. For more information, contact Monica Scherer, Esq. at 410-625-4740.

Monica L. Scherer, Esq. 

mscherer@silvermanthompson.com 

(410) 385-2225 

  

Joseph S. Stephan, Esq. 

jstephan@silvermanthompson.com 

(410) 385-2225 

  

Erin D. Brooks, Esq. 

ebrooks@silvermanthompson.com 

(410) 385-2225 

 

Continue reading →

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