Articles Posted in Child Custody

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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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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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With the holidays approaching many clients may be facing uncertainty or conflicts as to where their child(ren) will be spending the holiday. We always advise clients to plan holidays far in advance so a schedule can be arranged that is best for the child(ren). It is important to develop a schedule that is not too overwhelming for children, so they can enjoy the holiday without exchanges at inopportune times, such as midnight on Christmas Eve, or too many exchanges in one day. It is also important to remember not to make plans for your child(ren) on the holiday until you know what the schedule will be. Lastly, for your child’s sake, explain to them how the holiday schedule will go, do not seek their input or place a guilt trip on your child(ren) for not being with you for the holiday or a portion of the holiday, and be flexible and accommodating to making the holiday work for everyone. Everyone does include the other parent and his or her family.

If you are unable to reach a holiday arrangement with your child’s parent you may turn to what many practitioners refer to as “holiday court”. Most Circuit Courts throughout the State of Maryland implement a specific protocol for what is known as “holiday court,” or the process that takes place in order to resolve these holiday access disputes. We have collected information from the nearby Circuit Courts to find out how they will be handling this year’s holiday disputes.
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I recently tried a custody matter in the Circuit Court for Baltimore County, in which I represented the father of the minor child. The father came to our office in January 2010, after he had arranged for his minor child to reside with him upon learning that the child’s mother was not properly caring for him. The minor child had resided with his mother for nine years, but she had recently changed residences, which our client had great concerns about. Prior to January 2010, our client, who resides in a neighboring state, was visiting with the child every other weekend, when the parties were on good terms. After our client made arrangements for his son to live with him, the mother filed a Complaint for an Emergency Hearing, which was scheduled for March 2010 at the Circuit Court for Baltimore County. Due to a heavy docket we were sent to mediation and a hearing was not held. We were able to negotiate a temporary schedule which granted our client temporary sole physical and legal custody and allowed the mother visitation with the minor child.

The case was then set in for a final custody hearing, which was held in November 2010. At the final hearing, both parties were seeking sole legal and physical custody of the minor child. However, after evidence was presented regarding the parties respective living situations, stability, fitness, ability to maintain relationships for the minor child, and economic status, among other factors, the Judge awarded our client sole legal and physical custody of the minor child with visitation to the mother of the child. The factors that were considered are in line with those named in our October 23, 2009 blog, which details factors considered in custody disputes.
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There are two parts to custody in the State of Maryland, legal custody and physical custody. Legal custody is the ability to make decisions regarding the child’s health, education, religion and other matters of significant importance. Legal custody can be awarded solely to one parent or jointly to both parents (there are also variations on joint legal custody, such as having on parent as a tie breaker or a requirement to mediate when parents cannot reach a joint decision or assigning each parent sole legal decision making with respect to different issues, ie Mom makes the decisions on education and Dad makes the decisions on religion and the parents have joint legal custody on religious issues). Maryland courts have held that the strongest factor in determining whether to award joint legal custody is the ability of the parents to communicate with each other regarding the children.

Physical custody pertains to with whom the child resides. Physical custody can be awarded primarily to one parent or it can be shared between the parents. The Maryland case Taylor v. Taylor, 306 Md. 290, 508 A.2d 964 (1986), sets forth a list of several of the factors a Court will consider for the award of shared physical custody. These considerations include:

i. capacity of the parents to communicate and reach shared decisions affecting the child’s welfare;
ii. willingness of the parents to share custody;
iii. fitness of the parents;
iv. relationship established between the child and each parent;
v. preference of the child;
vi. potential disruption of the child’s social and school lives;
vii. geographic proximity of the parental homes;
viii. demands of parental employment;
ix. age and number of the children;
x. sincerity of both parents’ requests;
xi. financial status of the parties; and xii. benefit to the parents.
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Third party visitation cases have become increasing difficult cases to establish ordered child access. The standard has been and remains that in order for grandparents or other third parties to be awarded visitation with a grandchild/child they must show either parental unfitness or exceptional circumstances. For more information regarding third party visitation see our August 11, 2009 blog post. Maryland’s second highest court recently filed an opinion in the case of Brandenburg v. LaBarre on June 2, 2010, which held that in order to prove exceptional circumstances in a third party visitation case, third parties must show that without visitation there will be significant harm to the children. I am of the opinion that prior to this decision, exceptional circumstances could be proven without proving actual/significant harm to the children.

This visitation case was originally heard in 2008 in the Circuit Court for Anne Arundel County. The LaBarres, the children’s grandparents, filed a Complaint for Visitation after they had a falling out with their son and daughter-in-law, the Brandeburg’s. The Brandenburgs have four young children and until February 2008 the LaBarres cared for the children often and spent a great amount of time with the children. After hearing testimony from both sides, including the LaBarre’s testimony that exceptional circumstances existed because the children had previously spent so much time with them, the Judge granted the LaBarres one overnight visit a month and one week in the summer with the children. The Judge noted that the LaBarres had shown no evidence that the children had been harmed by lack of contact with them, but that it was unreasonable for them to have to do so given they had no contact with the children for some time. The Court of Special Appeals reversed the Judge’s decision stating that the test for exceptional circumstances is whether or not the children are suffering significant harm because they are not allowed contact with the third party seeking visitation. In this case, because the parents were fit, they have the right to decide who can visit their children unless these exceptional circumstances are proven.
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The Maryland Daily Record reported on June 28, 2010 that 81% of divorce attorneys have used Facebook as a form of evidence. It is a growing phenomenon in the family law practice and it has occurred in our practice in divorce hearings, custody hearings, and protective order hearings. The statements on a spouse or parent’s Facebook page may be just enough, and appears to have been just enough, to push the Judge in one direction or another in a case. Most Judges may not be aware of the context of a picture or statement on Facebook and with blurry evidentiary rules regarding their admission a picture that is funny to you may appear disturbing to a Judge.

Many may question why a Facebook page would be relevant in a divorce, custody or protective order matter. As explained in our February 28, 2010 blog, a fault based divorce such as adultery requires proof of both the opportunity and disposition for the adulterous relationship to be proven. A Facebook page displaying pictures or words of affection may be the key to proving the disposition element needed for adultery. As explained in our October 23, 2009 blog, in custody proceedings a significant factor that is considered is parental fitness. A Facebook page displaying irresponsible habits of a parent may question the fitness of that parent in caring for their child. As explained in our August 16, 2009 blog, the alleged abuse that is needed to enter a protective order can consist of a threat of serious imminent bodily harm. Such a threat on a Facebook page may be enough for a Judge to enter a protective order.
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Maryland lawmakers passed the legislation that will update the Maryland child support guidelines for the first time in over twenty years on Monday. The new adjusted guidelines will go into effect October 1, 2010 and will only apply to new child support cases (i.e. establishments) or motions to modify child support after that date. The guidelines cap has been raised to $15,000 combined earnings per month, rather than the current $10,000. Most significantly, the new guidelines will adjust to the current increased cost of raising a child.
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I recently received the written report and recommendation of the Master in the case detailed in the February 14, 2010 blog, Relocation Custody Cases in Maryland – Part Two. The findings, report and recommendation were favorable to my client. Among many other things, the Master specifically found that the mother was not willing to foster a relationship between the minor child and the father and that an award of sole custody to the mother would not be in the minor child’s best interest. Accordingly, the Master recommended that the parties have joint legal and physical custody of the minor child (with a one week on, one week off access schedule for each parent) until he commences Kindergarten, at which time the father would have primary physical custody of the child here in Maryland with specified visitation to the Mother.

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As I have said before and I will say again, child custody relocation cases are extremely difficult, especially from the perspective of the bench when the ‘primary caregiver’ is the parent relocating. In this case, the Mother moved to another State for a new job earning approximately, what will net to be about, $20,000.00 more a year. She does not have family there (actually moved further from all of her family), she has not attempted to facilitate any access for the Father, and she disobeyed an existing order of court. On the other hand, all of Father’s family lives in Maryland, he owns a home in Maryland, Mother has a sister in Maryland, and Mother did not even attempt to find another position in the state of Maryland (and did I mention she voluntarily left her employment in Maryland, she was not unemployed).

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I recently tried what started off as a fairly typical Maryland custody case that turned into a relocation case four months before the scheduled trial date. The decision still has not been rendered by the Court, but nevertheless thought the situation is one in which many folks find themselves and could relate. The basic sets of facts are as follows: parties meet, relationship of some sort ensued (depends on which party you ask) and a child was born. Parties lived together off and on (again, depending on which party you ask) and ultimately began living in their own residences separate from one another. Eventually, the child would generally spend most weekends and extended blocks of time with one parent and weekdays with the other. Although the weekday parent typically controlled when and how frequently the other parent would see the child. Eventually, the weekday parent filed for custody and child support and other parent filed a Counter-Complaint for Custody. The case moved through the litigation process as most cases do, but four months prior to the trial, the weekday parent gives notice through counsel that she will be relocating to another state, approximately 8.5 hours away. As a side note there was a Consent Protective Order in place (I did not represent my client at the time), whereby a child access schedule was put into place where the parties had joint custody and the Father had access three overnights the first week of the month, two overnights the second weekend of the month, and two overnights the third weekend of the month. The Mother had the remainder of the time.

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