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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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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 

 

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Many parents have lost their jobs as a result of the COVID-19 pandemic. With the closure of non-essential businesses and the government recommendation to stay at home, some parents are not able to find work. A court-ordered obligation to pay child support does not automatically stop because of a job loss, even if that job loss if through no fault of your own.

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Oftentimes, parents with the best intentions disagree on how to manage the health, safety, and medical issues of their children. Throw in a pandemic and navigating custody and access becomes even more of a challenge with COVID-19 CDC recommendations and government-imposed restrictions. As a practitioner, this is a first, and we are all seeking some guidance from the judiciary to help us support and advise our clients on these issues. The Maryland Judiciary has put out the following statement on matters concerning children and families.

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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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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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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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The Baltimore Sun reported on July 7, 2010 that retired Prince George’s Circuit Judge Graydon S. McKee III ordered Gayle and Craig Meyers to split custody of their dog at their limited divorce proceeding . For more information on limited divorce see our March 19, 2010 blog. In accordance with Maryland law, pets are considered marital property and are to be divided as such. For more information on marital property in Maryland, see Maryland Code, Family Law 8-203 and see August 19, 2009 blog. Instead of ordering the couple to sell the dog and split the proceeds, the Judge ordered that the dog will alternate spending six months with each party. As reported, “it was very clear that both of them love this dog equally,” McKee said. “The only fair thing to do was to give each one an equal chance to share in the love of the dog.”
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Contact Information
Maryland Offices:
Downtown Baltimore Office
400 E Pratt St Suite 900
Baltimore, MD 21202
Office: (410) 385-2225 Toll Free: (800) 385-2243 Fax: (410) 547-2432 Email: firm@silvermanthompson.com
Baltimore County Office
1 W Pennsylvania Ave #905
Towson, MD 21204
Phone: (410) 494-7100 Email: firm@silvermanthompson.com
Washington, D.C. Office
By Appointment Only
1775 I St NW #1150
Washington, DC 20006
Phone: (202) 921-2225 Phone: (202) 539-2444
New York Office
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40 Exchange Pl #1800
New York, NY 10005
Toll Free: (800) 385-2243
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