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.
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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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.
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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.
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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.
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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.
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As reported in our September 30, 2010 blog , 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 one 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 health matters 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.
Many clients have questions as to exactly how a joint legal custody situation should operate. Questions such as, “if a doctor makes a recommendation for my child, I do not have to check with the other parent first, right?”, or “do I need to relay all information regarding my child to the other parent?” We tell clients that they can not take a doctors recommendation as the final decision without first discussing it with the other parent, unless it is an emergency situation. Ideally, the parents should attend the medical appointment together so decisions can be reached while with the doctor and the parents are hearing the same information from the doctor. In a joint legal custody situation, ALL decisions regarding the child’s health, education, and religion, whether it be the choice to administer a certain prescription medication, decisions regarding a child’s I.E.P., where the child will attend school, etc. must be discussed with the other parent and a joint decision must be reached.
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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.
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.