August 2009 Archives

August 29, 2009

Same Sex Couples Face New Law Relating to Child Custody and Visitation

There has been a dramatic shift in law concerning custody and visitation involving same sex couples. The same line of cases that has reshaped grandparent's visitation issues also needs to be considered by same sex couples with children. Janice M. vs. Margaret K., involved opposing parties whose break up followed a committed relationship of 18 years.

Maryland's highest court reversed decisions by the Circuit Court of Baltimore County and the Maryland Court of Special Appeals granting visitation. The child in question was adopted by one of the women who objected to visitation by the spouse with whom she had become estranged. The lower courts had granted visitation on the grounds that the spouse seeking visitation had become a de facto parent. However, the Court of Appeals has ruled that Maryland does not recognize that concept. Instead, adoptive mother had a constitutional right to direct and govern the care, custody and control of her child and her former spouse was treated as a "third party". The case was sent back to the Baltimore County Court to determine whether "exceptional circumstances" existed to warrant visitation privileges.

This opinion reflects a dramatic change in the law based on the due process clause of the U.S. Constitution. It gives both biological and adoptive parents, rights to prevent visitation of third parties absent exceptional circumstances. For purposes of family planning by same sex couples, they are well advised to carefully consider whether both should become parents by going through the adoption process. In situations in which visitation or custody are disputed or potentially disputed, the focus has shifted. Courts will be making their decisions based on the exceptional circumstances test. This is an evolving area of the law. The Maryland Courts have not yet developed guidelines on what must be shown to meet this standard. The overarching issue will be harm that the child would suffer in the absence of contact with the non parent.

August 23, 2009

Child Support Calculations Guidance in Fluctuating Income Cases

Divorce cases in high income counties such as Howard, Montgomery, Anne Arundel, Carroll and Baltimore frequently involve setting support based on parental incomes that fluctuates substantially. This is occurring more frequently in the current roller coaster economy. A recent opinion provides guidance on how the courts should deal with the ups and downs of parental income in calculating child support.

_sweet_girl.jpgThe decision in Lorincz vs. Lorincz involved a mother who left a graduate program at Hopkins School of Medicine to attend law school. One of the issues in that opinion arose because she earned $36,424 during the summer as an associate in a New York Law Firm but had no income during the 9 months of law school. The trial court had calculated child support by chopping up the year into two parts, one during mother's high income summer months and second during her nine months in school. On appeal, that approach was rejected. Instead, the Court of Special Appeals ruled that child support payments should have been computed based on mother's annualized income. According to the opinion, when calculation child support, "per annum analysis remains a safe harbor."

While the facts of Lorincz are unusual, the opinion addresses an issue that occurs frequently in diverse cases involving once a year bonuses, profit sharing, capital gains, and income from commissions or profits from closely held businesses. It may also have some applicability to executives who experience temporary unemployment. It is more apt to be applied in cases involving higher income parents who are not living "hand to mouth". While a "per annum analysis" does not appear to be the only possible approach, the opinion clearly demonstrates that in many cases, periods of high and low income cannot be "hermetically sealed off" from each other in calculating child support.


August 18, 2009

Steps to Consider for Avoiding International Parental Kidnapping

As a Maryland Custody lawyer, nothing is more gut wrenching than parental kidnapping. After blogging on the million dollar verdict awarded to Mr. Shannon against his ex wife and her mother for kidnapping his sons to Egypt, I hasten to discuss various tools for preventing international parental kidnapping. This is of particular concern in locations such as Howard, Anne Arundel, Baltimore and Montgomery Counties that have many residents with strong roots to other nations. Having experience in both recovering children from kidnappings and preventing them, the best legal advice was offered by Ben Franklin when he said "an ounce of prevention is worth a pound of cure."

Frequently, the parent who is the potential victim of international parental kidnapping knows intuitively that there is a risk but often is looking for affirmation that their fears are reasonable. Anyone in that position should review the warning signs that your child is at risk for international parental kidnapping and personality profiles of parents who pose an abduction risk. These can be found in the Family Guide to Parental Kidnapping published by the U.S. Department of Justice at pages 11-12.
An important question is whether the foreign country to which a child might be abducted is a signatory to the Hague Conventions. This can be found at http://www.hcch.net.

There are a wide variety of preventative tools that you and your attorney will want to consider. They include prohibiting issuance of a passport for your child or if one has already been issued, limiting its accessibility. Some other steps are to obtain a court order prohibiting removal of the child from the state or the country, requiring posting of a bond, or requiring supervised visitation. If your child is going to be visiting a foreign country you may insist that a "mirror" court order be entered by the courts of that country.


August 16, 2009

Income Tax Issues for Divorcing Spouses

As a Maryland Divorce Attorney, I often counsel my clients on the risks involved in filing joint tax returns with their soon to be ex spouses. It is not uncommon for individuals with businesses or other complicated returns to obtain an automatic six month extension. For such individuals, October 15th becomes the filing date. Since that date is approaching, I thought it would be a good idea to discuss some related issues a spouse facing divorce might want to consider.

Spouses who are married as of the last day of the year are entitled to file a joint tax return. The advantage is that the federal tax is almost always less as applied to the combined income of the couple. Frequently, one spouse benefits more than the other from filing jointly. For example, a spouse with a lesser income might be entitled to a refund on a return filed as married filing separately. On the other hand, the spouse with the higher income would incur a higher income tax obligation by filing separately.

By filing jointly, both spouses become jointly and severally liable on the tax return. For example, if your spouse has failed to report business income or improperly claims deductions, you are equally responsible if you file a joint return. There are exceptions to the general rule of joint and several liability. However, the burden is on the taxpayer to convince the IRS that an exception applies.

While there is time before the October deadline for you to carefully review IRS rules and seek advice from your divorce attorney or tax adviser. Taxpayers who file separately can file an amended joint return for up to three years. However, if you file jointly, you cannot change that decision.

August 15, 2009

Monetary Damage Awarded for Serious Interference with Parental Rights

As a Maryland custody lawyer, a recent jury verdict has led me to evaluate what the future might bring in cases involving serious visitation disputes. On July 1, 2009, a Montgomery County jury awarded non custodial father a judgment in the amount of $27,000 against custodial mother for interference with his visitation rights. At issue was mother's sending son to the couple's native Bulgaria two summers in row, interfering with the Indianapolis residing father's visitation rights. This case appears be headed to the Appeals Courts. Among other issues is the trial judge's decision not to allow the jury to hear evidence that father owed $17,000 in child support arrearages. That struck me as a ruling that definitely deserves a second look.

This lawsuit follows on the heels of a 2008 opinion, Khalifa vs. Shannon, in which the Court of Appeals ruled that a cause of action existed for serious interference with a parent's right to both custody and visitation. In that case, a wealthy Egyptian family had conspired to abduct the couple's two sons. The father who had custody of the older son and visitation rights with the infant had not seen them in six years. A jury award of $3 Million in compensatory and punitive damages against wife and mother-in-law was upheld.

In Howard, Baltimore and Anne Arundel Counties there are growing number of residents with roots overseas. As a result, situations similar to the two cases cited above may occur. However, we have seen many issues of interference arise in the absence of a foreign connection. The threshold issue is whether the allegations and ultimately the evidence support the conclusion that interference was sufficiently serious to meet the legal standard. If that test is met, claims for damages may add a new dimension to already complex custody and visitation disputes.


August 11, 2009

20th Anniversary Of Maryland Child Support Guidelines Portends Update

Efforts to update Maryland's Child Support Guidelines will be redoubled in the 2010 legislative session. As a Maryland Child Support Attorney and former member of the Maryland House of Delegates who served on the Judiciary Committee when they were enacted, I can attest to the fact that the original guidelines bill was passed with no significant opposition. However, determined efforts to modernize the guidelines in the 2009 legislative session did not fair as well. Some opponents seem to be concerned about raising child support obligations in an economic downturn. Proponents of updating the guidelines contend that current law does not reflect more recent estimates of child rearing costs.The House Judiciary Committee is hoping to hear this Fall from an expert who has studied this issue.In part there may be an impact from over 20 years of inflation. For any given income level a greater share of the expenses are non discretionary. This might justify a greater share of income being apportioned to the children of the household.

There can be no dispute about another limitation of the current guidelines. They are based on a schedule in the statute that applies only to combined parental income up to $10,000 per month. In cases involving higher combined incomes, the court typically extrapolates child care expenses and apportions them based on the "Income Shared" methodology. While this may lead to a satisfactory result, it means that child support awards are less predictable in higher income counties such as Howard, Baltimore, Montgomery and Anne Arundel.

My experience in the legislature tells me that pressure will continue to build on members of the House Judiciary and Senate Judicial Proceedings Committees during the 2010 legislative session, scheduled from January to April. Any true reform bill would pass overwhelmingly on the floor of both the House and Senate. Therefore legislative action to update Maryland's child support guidelines can be expected as they pass their 20th anniversary. If a new law is enacted, it is likely that the legislature will set an effective date and establish other provisions designed to protect the courts' dockets from a flood of requests to modify existing orders.

August 10, 2009

Marital Property Issues Grow More Complex in Declining Economy

As a Maryland Divorce Attorney, a recent news article on underwater mortgages has me thinking about how much the current economic downturn has created a new set of issues that is challenging divorcing couples. A Deutsche Bank Report last week predicts that 48% of homeowners will owe more than their homes are worth before the recession ends. The home may no longer be a major plus in the overall disposition of assets. Today, it is often a potential liability that requires nimble market savvy.

Many of us who live in the relatively prosperous of Howard, Anne Arundel, Baltimore and other affluent counties in the Baltimore-Washington Corridor are probably looking at a more promising picture. Even if you are one of the more fortunate homeowners that still have equity in your home the downturn can have important consequences. Taking out a second mortgage, a cash-out refinancing or equity line of credit can have important consequences under the Maryland Marital Property Act. If divorce might be in your future, consider consulting an attorney on how any of these transactions could affect you in the ultimate property disposition.

In general the Maryland Marital Property Act recognizes marriage as a partnership and is designed to give a court power to "balance the equities" between the parties as it relates to property acquired by either party during the course of the marriage. Once a divorce appears on the horizon, it is never too early to confer with an experienced divorce attorney to understand how your rights under this complex statute might be affected by actions that you or your spouse may be planning.

August 7, 2009

Maryland Courts Side With Custodial Parents on Grandparents' Visitation

As a Maryland Child Custody lawyer, I am often asked questions about grandparents' visitation. Custodial parents in Maryland who are subject to orders allowing grandparent visitation may have an open invitation to modify those orders. This follows a Maryland Court of Special Appeals decision in Barret vs. Ayres decided in June 2009. The decision reversed a Carrol County Circuit Court Judge who ruled against a mother with custody. The Circuit Court had ruled that there had not been a sufficient "change in circumstances" to modify a 2006 consent order for grandparents visitation. The child's father has been in a coma since 2004. Mother cited her deteriorating relationship with grandparents as grounds for terminating visitation. On appeal, it was decided that Mother's judgment concerning the best interest of her child was sufficient to constitute a "change of circumstances" and she should be allowed to obtain a modified order.

As both parent and grandparent, I can empathize with both sides of these disputes. Since 2007, we have watched the balance power swing decidedly in favor of parents who refuse to allow grandparent visitation with children. The Courts have relied on constitutional principles to take back rights granted to grandparents by state legislatures. Unless a parent is unfit or there are or "exceptional circumstances demonstrating current or future detriment to the child absent visitation", the courts will not interfere with a custodial parents judgment.

It is important to understand what this case did not decide. It did not decide when a parent is unfit or what constitutes "exceptional circumstances". If an order has already been entered based on one of these two circumstances, it did not decide when the order could be modified. Finally the decision does not justify "self help". In other words if there is an outstanding order, a parent cannot simply ignore the order without obtaining a modification.