January 2010 Archives

January 31, 2010

Is Genetic Testing In The Child's Best Interest ?

Maryland Child Custody and Divorce Lawyers know that the duty to pay child support is a bedrock principle of Family Law. In a previous posting, I have discussed efforts underway in the 2010 legislative session to update the current statute. The goal has been to make the calculation of child support as automatic as possible by establishing guidelines that are simple and accessible. Attempts to avoid paying child support are highly disfavored by the courts. On appeal in Duckworth vs. Kamp, Mr. Duckworth discovered how strong that policy is.

Mr. Duckworth played a trump card to defend against a claim for arrearages brought by his former wife. He asserted a claim that had long been a matter of suspicion. He wasn't the biological father of his 14 year old daughter! He actually convinced the trial court to order a paternity test. When the test supported his defense, the court dismissed the claim for unpaid child support and granted his motion to terminate child support.

On appeal by mother, the Maryland Court of Appeals refused to accept Mr. Duckworth's belated efforts to shuck off fatherhood because of financial convenience. The court held that the Circuit Court had erred because it failed to consider the best interest of the child. It went further in enumerating a host of legal principle that precluded his long delayed renunciation of fatherhood. However, setting aside issues that may be unique to Mr. Duckworth, this opinion confirms the principle that before entering any order for paternity testing of a child born during a marriage, the court must first determine that testing is in the best interest of the child.

January 24, 2010

Howard County Circuit Court Roadmap for Contested Family Law Cases

As a Maryland Divorce and Child Custody Lawyer in Howard County, I thought it would be helpful to discuss some important information about how contested domestic relations cases are handled in our county. In compliance with Maryland Rule 16-202, Howard County has adopted a Family Law Differentiated Case Management Plan. This plan sets forth a specific course of action for divorce and other family law matters so that they can be resolved in timely manner. The goal is to resolve most cases within twelve months and the remainder within 18 months of filing.

In most contested domestic relations cases, the court will hold a scheduling conference which will be set 30-45 days after a complaint and answer are filed. These scheduling conferences are held in the court house on Fridays. The Howard County family law coordinator presides. A scheduling order will be generated that may include referral to professional service providers such as parenting classes or mediation; appointment of an attorney for a child or children, custody evaluation, Master's Hearing date and setting discovery deadlines.

The family law coordinator must also determine the complexity to the case. More complex cases may require a longer discovery schedule. Cases that meet the criteria for complexity may be eligible for extension of discovery deadlines.

The differentiated case management plan for Howard County also provides for settlement conferences that will usually be conducted by a retired judge. These are set after discovery has been completed. If a case does not settle, the parties will go directly to case the management office to schedule a trial date on the merits.

January 17, 2010

Government Pension and Right of Survivorship In Divorce

In previous a Maryland Divorce Lawyer post, I have offered a menu of issues that need to be resolved in order to successfully negotiate a Separation Agreement. This is the key to minimizing legal expenses in your divorce. In situations involving a pension plan that is part of the Marital Property, the right of survivorship and who bears the cost of electing the right of survivorship needs to be considered.

Many defined benefit pension plans allow the participant to take a reduced monthly benefit in exchange for providing continued benefits to a spouse following the death of the participant. Known as the right of survivorship, this is typical of many pension plans including federal, state and local government plans. Because so many residents in the Howard County, Anne Arundel County, and Baltimore County area are government employees, this is an important issue frequently encountered by central Maryland Divorce Lawyers. The parties can share the reduction in the benefits pro rata or have the spouse who will benefit bear the full reduction in monthly benefits. It is usually advisable to resolve the issue in a clear and unambiguous fashion.

In the absence of a Separation Agreement by the parties, this is one of many issues that are left to the discretion of the judge based on all the facts and circumstances of the case. Ordinarily if you enter into a Separation Agreement you are compromising important issues in order to avoid litigation. It is not usually a preferred result to enter into a Separation Agreement that is unclear on this or any other point and end up in litigation over what the parties intended.

January 9, 2010

Winning Custody For Grandparents and Other "De Facto" Parents

There is a recent Maryland appellate opinion that should be of interest to Maryland custody lawyers and their clients. It provides guidance to grandparents and others who are not biological or adoptive parents involved in custody or visitation disputes.

Recent decisions have clearly established that parents have a fundamental constitution right to raise their children. Unless it can be established that a parent is unfit or there are "exceptional" or "extraordinary" circumstances, the parent will be awarded custody rather than a third party. Grandparents, relatives and persons who might be regarded as de facto parents have no rights in this legal calculation. There is a heavy presumption in favor of the parent as opposed to all others. These decisions also have undercut grandparent visitation rights established in Section 9-102 of the Family Law Article by Maryland General Assembly. You will find a discussion of this issue in a prior posting on this site.

In Green vs. Green, the child's aunt and uncle won the right to continued physical custody against the mother who had sought to modify an existing custody order. They had originally obtained physical custody in a consent order entered into by mother and father. Mother filed a motion to modify, requesting that she be awarded physical custody following her completion of a substance abuse rehabilitation program. The trial court found that mother was a fit and proper parent. However, the court expressed concern about her continued use of alcohol even in moderation. The court perceived a danger of relapse and concluded that this might be legally sufficient to constitute exceptional circumstances sufficient to deny her constitutional right to custody. However on appeal, aunt and uncle prevailed not based on the finding of "exceptional circumstances but because of father's participation in both the original consent decree and his opposition to any modification.

The takeaway is that Grandparents and other non parents seeking visitation and/or custody should establish an alliance with and active participation of a parent whenever possible

January 2, 2010

Domestic Violence: "We both were fighting" defense

A question on the website, Avvo caught my attention as a Maryland Domestic Violence Attorney. "How can my wife be filing a Domestic Violence petition against me, when we were both fighting?" This is not an uncommon situation and can be confusing. If two people in marriage or other relationship covered by the Domestic Violence Laws are "fighting", one, both or none of them may be committing Domestic Violence. One or both parties can file a petition for relief under the act. Relief can only be granted to a party who has filed a petition alleging that the he or she has been a victim of Domestic Violence.

Sometime when both parties have been fighting, a careful comparison is required of what has occurred with the definition of Domestic Violence under Section 4-501 Family Law Article. In the context of the question posed on AVVO, any act that causes serious bodily harm, places a person in fear of imminent serious bodily harm or that constitutes assault under the criminal code can constitute Domestic Violence.

Let me offer two simple rules of thumb. As your grandmother told you, "two wrongs don't make a right." In other words, the fact that one person is a victim of Domestic Violence does not mean that that same person did not also commit Domestic Violence. The second is that "size [sometimes] matters." If the parties in a fight consist of a healthy 200 pound male and a 97 pound female, this may (but not necessarily) be significant on the issue of who was and who was not "in fear of imminent serious bodily harm". For an overview of Domestic Violence proceedings you may review my prior post on the subject.