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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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Effective October 1, 2010, in the State of Maryland a victim of domestic violence who has obtained a final protective order may terminate a residential lease without penalty. For more information on protective orders, see our August 16, 2009 blog. The tenant is given thirty days to leave the property, and will be responsible for the rent during the thirty day period. This legislation was introduced in an effort to aid victims of domestic violence if a change of housing is necessary. Further, this law creates a rebuttable presumption that the victim has not breached the lease agreement if the landlord attempts to evict the domestic violence victim as a result of the abuser’s behavior. If a tenant does not choose to leave the leased property, they may request that the landlord change the locks. In that event, the tenant will be responsible for the fee.

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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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As stated in our June 30, 2010 blog on Facebook pages used as evidence in family law proceedings, Facebook pages and various other social networking sites such as MySpace are being used as evidence in many legal proceedings. As mentioned, the rules regarding the entry of these pages as evidence are still unclear. In a recent case published by the Court of Special Appeals, Antoine Levar Griffin v. State of Maryland, the Court offers attorneys some guidance on this exact evidentiary issue. The opinion, reported on May 27, 2010 states:

The anonymity features of social networking sites may present an obstacle to litigants seeking to authenticate messages posted on them. See, e.g., Paul W. Grimm et al., Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information, 42 AKRON L. REV. 357, 370-71 (2009). That is the issue we encounter here: whether the State adequately established the author of the cyber message in question. Despite the pervasive popularity of social networking sites and their potential as treasure troves of valuable evidence, Maryland appellate courts have not yet addressed the issue of authenticating anonymous or pseudonymous documents printed from social media Web sites. Notably, neither the Maryland Rules of Evidence nor the Maryland Rules of Procedure specifically address the authentication of such evidence. Perhaps this is because courts that have generally considered the issue of authentication of electronic communications have concluded that they may be authenticated under existing evidentiary rules governing authentication by circumstantial evidence. We see no reason why social media profiles may not be circumstantially authenticated in the same manner as other forms of electronic communication – by their content and context. The inherent nature of social networking Web sites encourages members who choose to use pseudonyms to identify themselves by posting profile pictures or descriptions of their physical appearances, personal background information, and lifestyles. This type of individualization may lend itself to authentication of a particular profile page as having been created by the person depicted in it.

In this particular criminal case, the Defendant was disputing that a MySpace page should be used as evidence because one could not prove that it was the person’s page it purported to be.
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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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As stated in our October 2, 2009 blog on alimony the Court may consider, among others, twelve different factors in deciding how much and for how long to award alimony. However, these factors provide very little guidance on how much alimony is appropriate based on income and financial figures. In Boemio v. Boemio, No. 57, September Term, 2009, the Court held that the courts are not limited to the twelve enumerated factors in the statue and that given the difficulty of translating those factors into a numerical award, courts may consult guidelines developed by a reasonable and neutral source. Such guidelines are fashioned similar to the Maryland Child Support guidelines and provide a numeric formula. The Circuit Court in this case consulted the American Academy of Matrimonial Lawyer’s guidelines but the Court of Appeals held that courts may also consult other guidelines such as the Women’s Law Center Kaufman Alimony Guidelines.

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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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The pending bill to update the Maryland Child Support Guidelines passed in the Maryland House of Representatives this past Saturday, March 27, 2010 with a vote of 114 in favor and 25 votes against. However, the House did make a few changes to the bill, which will have to be reviewed. The House changed the date the Guidelines would go into effect from October 1, 2010 to October 1, 2011. Also, the House revised the Guidelines to cap at a combined monthly income of $15,000.00 rather than $30,000.00. Currently, the Guidelines are capped at a combined monthly income of $10,000.00. Last, the House amended the bill to state that the new legislation would not qualify as a material change in circumstances for the purpose of requesting modification of child support.
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It is common for one to be unaware that there are two types of divorce in Maryland. An absolute divorce is typically what one thinks of when thinking of a “divorce.” See February 28, 2010 Blog. On the other hand, a limited divorce merely legalizes a separation. A limited divorce is generally sought when the parties do not have grounds for an absolute divorce yet and are unable to come up with a settlement agreement, but a party is in need of financial relief or child custody and access needs to be established.

Under Maryland law, the Judge may grant a limited divorce on grounds of: “(1) cruelty of treatment of the filing party or of a minor child of the filing party, (2) excessively vicious conduct to the filing party or to a minor child of the filing party; (3) desertion (actual or constructive); or (4) voluntary separation, if the parties are living separate and apart without cohabitation and there is no reasonable expectation of reconciliation.” Maryland Code, Family Law § 7-102. In contrast to an absolute divorce, there is no time period that the parties need to be living separate and apart in order for the judge to grant a limited divorce on the grounds of voluntary separation.

Unlike an absolute divorce, a limited divorce does not sever the marital bonds. Therefore, the parties are not entitled to remarry. Judges will often grant a limited divorce to a couple seeking an absolute divorce if they find that there is insufficient evidence to amount to an absolute divorce, but sufficient grounds for a limited divorce. There are few advantages to filing for a limited divorce. It can be a way to get a spouse out of the house without a waiting period, or for a spouse to leave the house without risking a claim of desertion. Additionally, a couple may want to keep their marital status for religious or economic reasons, such as health benefits or tax purposes. It also serves as a method of documenting the start date of the parties’ separation period, if needed for an absolute divorce.
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The Maryland Legislature is currently considering legislation that would update the Maryland Child Support Guidelines. The legislation has passed in the Senate, but has not yet passed in the House. Many proponents of the legislation feel it is long overdue as the Maryland Child Support Guidelines have not been updated in over 20 years, since 1988 when Maryland first implemented the guidelines to comply with the federal government’s recommendation. At that time, the government also recommended that the guidelines be revisited very four years which has not been done in Maryland. The Maryland guidelines calculate the payment by using a pre-established figure to represent the expenses in the household that covers the child or children and then dividing this figure based upon the parties’ respective income percentages, see Maryland Annotated Code, Family Law 12-204 . Currently the guidelines are calculated based on the proportion of expenses for children based on expenses and the cost of living in 1988. These expenses have not increased in perfect proportion to parents incomes over the years, which is one of many reasons why proponents seek to have these guidelines re-evaluated. Additionally, the guidelines do not calculate for those with combined household incomes over $10,000 a month, which encompasses many more households than it did in 1988. The new legislation would change the guidelines to include higher income situations up to $30,000 a month.
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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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On Wednesday, February 24, 2010, Maryland Attorney General Doug Gansler issued an opinion stating that Maryland courts and officials should recognize as valid same-sex marriages performed in other states. The Attorney General believes that the Maryland Courts will follow his lead, as they have recognized marriages performed legally in other states as legal here in Maryland. For example, while common law marriage is not recognized in Maryland, if a couple was married due to a common law relationship in another state Maryland has recognized that as a valid marriage. Also, the Attorney General points out that Maryland has recognized increasing rights for same-sex couples in the recent past, including the right to adopt. This Opinion puts state officials on notice that the Attorney General believes that Maryland is bound by the constitution to recognize these marriages as valid in Maryland, and state agencies should begin extending married rights to the couples. For more information on same-sex marriages view our February 5, 2010 blog.

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As stated in the August 15, 2009 blog, Maryland is a hybrid state in that a party filing for an absolute divorce may elect to proceed on fault (contested) or no-fault (uncontested) based grounds. The Maryland Code, Family Law § 7-103 states that there are six fault based grounds for an absolute divorce: adultery, desertion, cruelty of treatment, insanity, incarceration and excessively vicious conduct.

Adultery, or voluntary intercourse between a spouse and an individual other than their spouse who is of the opposite sex, is a fault based ground for divorce that requires no waiting period to file. However, while you do not have to show evidence of the actual intercourse between your spouse and his or her paramour you must be able to prove both the opportunity and disposition for the adulterous intercourse to be proven.

In order to file for an absolute divorce based on desertion the desertion must continue for one year uninterrupted before filing, must have been a final and deliberate act, and there must be no reasonable hope of reconciliation. Desertion can be either actual or constructive. Actual desertion occurs when the spouse leaves the home without cause, and constructive desertion occurs when a spouse’s conduct justifies a leaving spouse to do so.

Cruelty of treatment and excessively vicious conduct are both fault based grounds that do not require any waiting period. Both grounds involve acts or a single act of violent conduct. Cruelty of treatment involves conduct that threatens or inflicts bodily harm upon a person or minor child of the parties. Excessively vicious conduct is usually acts of extreme domestic violence and may require a pattern of this violence.
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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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