Articles Posted in Child Custody

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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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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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