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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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A Custody Evaluator is appointed by a Court pursuant to Maryland Rule 9-205.3.  Pursuant to the Maryland Rule there are mandatory elements of a Custody Evaluation as set forth in 9-205.3(f)(1) and optional elements as set forth in 9-205.3(f)(2).  Mandatory elements, subject to any protective order of the court, a custody evaluation shall include: (A) a review of the relevant court records pertaining to the litigation; (B) an interview with each party; (C) an interview of the child, unless the custody evaluator determines and explains that by reason of age, disability, or lack of maturity, the child lacks capacity to be interviewed; (D) a review of any relevant educational, medical, and legal records pertaining to the child; (E) if feasible, observations of the child with each party, whenever possible in that party’s household; (F) factual findings about the needs of the child and the capacity of each party to meet the child’s needs; and (G) a custody and visitation recommendation based upon an analysis of the facts found or, if such a recommendation cannot be made, an explanation of why. Optional elements include, subject to subsection (f)(3) of this Rule, at the discretion of the custody evaluator, a custody evaluation also may include: (A) contact with collateral sources of information; (B) a review of additional records; (C) employment verification; (D) an interview with any other individual residing in the household; (E) a mental health evaluation; (F) consultation with other experts to develop information that is beyond the scope of the evaluator’s practice or area of expertise; and (G) an investigation into any other relevant information about the child’s needs. Maryland Rule 9-205.3(f)(1)(G) specifically provides the custody evaluator is to provide “a custody and visitation recommendation based upon an analysis of the facts found or, if such a recommendations cannot be made, an explanation of why”.

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The U.S. Code of Federal Regulations, Part 838.103 provides “Self-only annuity means the recurring unreduced payments under CSRS or FERS to a retiree with no survivor annuity payable to anyone. Self-only annuity also includes the recurring unreduced phased retirement annuity payments under CSRS or FERS to a phased retiree before any other deduction. Unless the court order expressly provides otherwise, self-only annuity also includes any lump-sum payments made to the retiree under 5 U.S.C. 8343a or 8420a.” While the Gross annuity “means the amount of monthly annuity payable to a retiree or phased retiree after reducing the self-only annuity to provide survivor annuity benefits, if any, but before any other deduction. Unless the court order expressly provides otherwise, gross annuity also includes any lump-sum payments made to the retiree under 5 U.S.C. 8343a or 8420a”.  The Office of Personnel Management (OPM) will apply the martial share formula to the gross annuity UNLESS the Order states otherwise, see U.S. Code of Federal Regulations, Part 838.306 (b) which states “the standard types of annuity to which OPM can apply the formula, percentage, or fraction are phased retirement annuity of a phased retiree, or net annuity, gross annuity, or self-only annuity of a retiree. Unless the court order otherwise directs, OPM will apply to gross annuity the formula, percentage, or fraction directed at annuity payable to either a retiree or a phased retiree.”  Gross Annuity is the default.

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A bill was approved by the Maryland House repealing the language of a Maryland Family Law Statute which prohibits decisions in domestic violence proceedings from being admitted into evidence during divorce trials. Current law states that courts cannot consider decisions or orders made in Protective Order proceedings during the divorce trial. Final Protective Orders may be granted after a domestic violence incident and can provide for temporary custody, visitation and use and possession of the marital home. The bill will have to be approved by the Senate and Governor before becoming law.

 

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Sen. Wayne Norman (R-Harford) has introduced SB 499, a bill that would allow a circuit court to grant an absolute divorce on the basis of mutual consent, with only one of the parties appearing in court. The bill deletes Fam. Law Sec. 7-103(a)(8)(iv), which currently requires both parties to appear before a chancellor when they are seeking an absolute divorce. The bill hearing is set for February 14, 2017 in the Senate Judicial Proceedings Committee.

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Stating three words, Talaq, Talaq, Talaq, is all that is required for a husband to divorce his wife under Islamic law. This ancient tradition is being reviewed by the Supreme Court in India in order to determine the constitutionality of this divorce practice. Other primarily Muslim countries have outlawed this practice of divorce years ago as women are often treated unfairly. This practice continues to effect marriage and divorce in the United States and particularly in Maryland.  Spouses who were married under the Islamic faith do not always realize that if they reside in Maryland, they are still bound by Maryland law and have to initiate the divorce process in the Maryland Courts. Many husbands state the triple Talaq or have a proxy in their home country stand in for them to perform the divorce practice pursuant to the laws of their home country. While they may be divorced in the eyes of their faith, they are not divorced pursuant to the law of Maryland. Maryland case law, Aleem v. Aleem, 404 Md. 404 (2008) has concluded that the Talaq violates due process and public policy and therefore is not recognized as a valid divorce in Maryland.

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On November 30, 2012 we blogged about the Attorney General’s Opinion on the issuance of same sex marriage licenses and when the clerks could issue same. It appears that the clerks have followed the guidance of his Opinion as the first licenses were issued Thursday, December 6, 2012 as reported by the Baltimore Sun. Although the couples will not be able to wed until January 1, 2013, the Clerks of most Courts around the State have issued the licenses as of Thursday. As reported, Harford County and Prince Georges County are still working out some logistics, but will soon offer the licenses to same sex couples as well. While January 1, 2013, is a holiday and most courthouses would normally be closed, some are now considering opening to allow the couples to wed on their first available day to do so.
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As we explained in our “How to Get Married Guide for Same Sex Couples” blog on November 8, 2012, same sex couples will be permitted to marry in Maryland as of January 1, 2013. However, couples will need to obtain a marriage license from the court prior to doing so, and will have to wait 48 hours before they can act on the license. So the question becomes, when will same-sex couples be eligible to obtain the license, given that January 1 is a court holiday. The Attorney General, Doug Gansler released on 19 page opinion on Thursday, November 29, 2012 as reported by WJZ. Attorney Gansler states that the “court clerks may begin issuing marriage licenses after the law is formally proclaimed to have been approved by the voters” on December 6, 2012. However, Attorney Gansler cautions that the clerk could choose not to issue the licenses until January 2, 2013.
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Baltimore will soon be the home to a supervised visitation center according to CBS Baltimore’s report on November 27, 2012. The Safe Havens center will allow victims of domestic violence, sexual assault, stalking, dating violence or child abuse to have parent-child contact in the presence of a third-party supervisor. The opening of the Center is critical as many courts in the area have recently had to close their supervised visitation centers due to lack of funding. The center may be useful to Judges in awarding visitation with a minor child under a protective order to an alleged abuser. As we have previously explained when entering a protective order, a Judge has the authority to establish temporary visitation with a minor child of the alleged abuser and a person eligible for relief on a basis which gives primary consideration to the welfare of the minor child and the safety of any other person eligible for relief.
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As the Washington Post reports, The Maryland Court of Special Appeals upheld the divorce of Marie-Louise Tshiani and Noel Tshiani, stating that their marriage, where Noel was only present by phone, was valid. When Ms. Tshiani filed for divorce in the Circuit Court for Montgomery County, seeking alimony and child support, Mr. Tshiani claimed that he did not know about their marriage. Mr. Tshiani was present for the 1993 ceremony that took place in the Democratic Republic of Congo by way of speaker phone only. He participated by answering questions from another country, but his cousin did stand in his place for the actual ceremony. The Maryland Court of Special Appeals held that this was a valid marriage under state law as Maryland law does not bar the Court “from recognizing a ceremony where on participates by proxy and the ceremony that is valid in another jurisdiction.” The ruling by the Court is especially important as it again confirms that Maryland will recognize a marriage performed elsewhere that would have been otherwise illegal in Maryland.
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Contact Information
Maryland Offices:
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