Recently in Child custody and visitation Category

February 14, 2010

Enforcing Custody and Visitation Orders Using Contempt Powers

In a previous post, I have provided an overview of custody and visitation. As a Maryland Custody Lawyer I'd like to provide some information about how disputes over willful denial of visitation can be resolved. One approach is filing a motion for contempt of court. Civil contempt is a process by which private rights such as visitation can enforced. It utilizes the power of the court to incarcerate as a leverage to gain compliance with a court order. Howard County, Baltimore County and Anne Arundel County are a few of the Maryland counties that employ full time Masters for Domestic Relations. This posting will outline the contempt process in counties with full or part time Masters.

The civil contempt process can be used to gain compliance from either the custodial parent or the non-custodial parent. However for sake of this discussion I will assume that a custodial parent is allegedly violating a non custodial parents visitation rights.

The process is initiated by a petition by the non custodial parent asking that the custodial parent be held in contempt. Unless the petition is frivolous on its face, the judge will issue a show cause order. The contents of this order are prescribed by Rule 15-206 . A summons, order and petition are served on the custodial parent who is commanded to come to court and defend against the claim for contempt.

The custodial parent is given an opportunity to file a written response and to appear at an evidentiary hearing on the allegations. At the hearing both parties will be given an opportunity to present evidence and arguments. Following the hearing the Master will prepare in writing recommendations which shall include his findings. He will also include a proposed order. Either party may file exceptions to the Master's findings and recommendations. The dispute then goes to a judge who must make an independent decision giving substantial deference to the Master's findings of fact. If an order is entered, there must be an opportunity for the custodial parent to purge the contempt. In other words, the custodial parent will be given a direct order by the court. If the custodial parent complies the threat of incarceration is lifted.

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.

December 27, 2009

Negotiating Child Custody and Visitation

This post on custody and visitation is written from the point of view of a Maryland Custody Lawyer for divorcing parties who wish to negotiate a Separation Agreement. My prior posting offers a list of items that should be successfully negotiated and reduced to writing in an agreement in order to minimize legal expenses and stress in ending a marriage. You can also read my posting about protection that the Maryland General Assembly has provided against the custodial parent relocating the child without the non custodial parent being given adequate notice or opportunity to contest the decision.

In a traditional arrangement one parent gets custody and the other gets visitation. The custodial parent is responsible for the day to day care of the child and the obligation to provide food, shelter, clothing and other necessities. Custodial parent is charged with making long range decisions such as health care, education, religious training, place of residence and other decisions affecting the well being of the child. Visiting parent has the right to make decisions affecting the child during visitation, including emergency decision that must be made before the custodial parent can be contacted. The visiting parent will pay child support to the custodial parent usually based on the Maryland Child Support Guidelines

Frequently parents agree to share "legal custody" with sole physical custody going to one of them. This means that they must jointly make decisions of long term consequence to the child because neither parent has sole decision making authority.

Parents can also agree to joint "physical custody" which usually means that they will split the child's time between them and share in the day to day parental decision making. Joint physical custody is accepted by the Maryland Courts under certain circumstances. The most important factor that the courts will examine is whether the parties are able to effectively communicate and make shared decisions with respect day to day matters that impact the child's well being. Usually joint custody is an arrangement that is agreeable to both parties. Other factors that the court will examine, include but are not limited to, the fitness of each parent, the relationship of the child to each one, the child's preference, the potential disruption to the child's life, geographic proximity of the two residences, the parent's work schedule, age and number of children and financial status of parents.

December 9, 2009

Corporal Punishment Issues Arise in Custody and Domestic Violence Cases

Maryland Divorce and Custody Attorneys know that divorcing couples often disagree on parenting issues. This may include disagreement over corporal punishment. The issue of corporal punishment can also arise in situation where the parents are in agreement. The use of corporal punishment can become (i) a criminal charge of child abuse under Section 3-601 of Criminal Law Article, (ii) a child abuse investigation and finding by the Department of Social Services under Section 5-701 of Family Law Article (subject to appeal to the Office of Administrative Hearings), (iii) a domestic violence case under Section 4-501 of the Family Law Article and (iv) an issue in a custody or visitation dispute.

In each of these types of proceedings, a parent's conduct can have important consequences to his or her parental rights. It is important for parents who might be involved in any of these types of litigation to understand the basic concepts of child abuse and be able to discuss the issue with their Family Law Attorney.

Section 4-501 Family Law Article adopts the common law principle permitting "reasonable punishment including reasonable corporal punishment, in light of the age and condition of the child performed by a parent or step-parent of a child." However, when corporal punishment causes injury to the child, even if unintended, it is likely that the conduct of the parent will be closely scrutinized.

There are two Maryland appeals court opinions that offer guidance in such cases. The first is Charles County Department of Social Services vs. Vann in which the Department's finding of child abuse was upheld. In this case, a six year old was trying to evade punishment by his father who sought to strike him on the buttocks with a belt. Father had swung a rather large belt buckle at his son who attempted to evade the blows by twisting, turning and grabbing the belt. The boy's back was injured. The Court found that it was reckless to have swung the belt buckle at the child. His evasive response meant that the blow could have landed anywhere on his body. Indeed the injuries could have been far more severe.

In Department of Human Resources vs. Howard, the Court of Special Appeals, the court reversed a finding by the Department based on inadvertent injuries to 13 year old boy's eye. Mother intended to hit the child in the back of the head with her knuckles. He surprised her by turning his head towards her so that she struck him in the eye. Mother did not act with intent to harm the boy or with recklessness towards his safety or welfare.


December 6, 2009

Separation Agreement ,Key To Amicable Divorce

You and your spouse have discussed divorce and want to make it as amicable as possible. There are better things to do with your money than pay it to lawyers. When you hire a lawyer, you expect value for what you pay. Where do you begin? An initial meeting with a Maryland Divorce Attorney will allow you to develop a successful negotiating strategy.

As the client, you are entitled to control how negotiations are approached. However, your lawyer needs to educate you on how Maryland Divorce law, will influence each of the issues that applies to you, your spouse and your family. The following is an overview of issues to consider:

Children: Who will have legal custody? Who will have physical custody? What is the schedule for each parent to spend time with the children?


Child Support: Who will provide health care for the children? What extraordinary expenses do the children have, such as orthodontic bills, therapy, medical care and education? The latter may include private school K-12 and/or college expenses. Child support will be determined based on Maryland child support guidelines. The schedule in the Maryland Family Law Article only covers combined incomes of $120,000.00. Many families in high income regions such as Howard County, Anne Arundel County, Baltimore County, and Carroll County exceed this amount. Your attorney can help you anticipate how the Court is likely to use the guidelines to extrapolate an appropriate amount for higher income families. My prior posting discusses the fact that the Maryland General Assembly will be considering legislation to modify the state's child support guidelines.


Family Home: What will become of the family home? I have previously posted comments about how the upside down real estate market has made decisions more difficult for divorcing couples.

Alimony: Is this a case for temporary or indefinite alimony? In the absence of alimony, what will the income of each party be and how will their standard of living compare?

Property Disposition: What property including retirement assets is owned by the parties? How is the property titled? Why was it titled in that manner? You might want to review my prior posting on Marital Property. Identify the property that is Marital Property. What is the value of the Marital Property? How is the Marital Property titled?

Closely Held Businesses: This is a special subset of Property Disposition issues. Often, valuation is the biggest challenge. You may refer to my previous post on this issue.

Pensions: Is either of the parties entitled to a pension? How will these pension benefits be allocated? This is another subset of Property Disposition issues; military, federal, state and local government pensions are included.

December 2, 2009

Custody Disputes Involving Deployed Militarypersons

An opinion dated November 18, 2009 (not yet released for publication) by a prominent member of Maryland's highest court, Judge Murphy, is intended to be instructive to Maryland Custody Attorneys and members of military families impacted by overseas deployment. There are many such families located in Howard County, Anne Arundel County, Baltimore County and Harford County because of their proximity to military bases.

When preparing for deployment, often a service member with custody places a child with family members. While the servicemember is absent on active duty, the other parent seeks custody of the child. If custody is awarded, the deployed parent may face legal obstacles in regaining custody upon his or her return.

Judge Murphy made two major points. First he spelled out the rights of deployed service members under the Family Law Article. As a former U.S. Navy nuclear submarine officer and sixteen year member of the Maryland House of Delegates, I have explained this legislation and expressed my appreciation for recent action to strengthen these rights in a prior posting.

The second point made by Judge Murphy is that deployed members are limited in the use they can make of the Servicemembers Civil Relief Act. In other situations this federal legislation can be raised to slow down or delay lawsuits. However, in situations involving custody, that is not going to be allowed. Murphy explains his viewpoint by quoting a Tennessee opinion that observed: "[the child's} life goes on". In other words the federal law is designed to protect a servicemember but cannot be used to gain an advantage in a dispute that impacts a child's life such as custody.

In the case reviewed by Judge Murphy, the father had been denied visitation by mother's parents while she was overseas. Father gained physical possession of the child and the court left that situation undisturbed until mother returned from overseas. It was also noted that grandparents lacked standing to pursue custody of the child. This is also a topic which I have previously posted on this site.

October 17, 2009

Court Transfers Child Custody Case Jurisdiction to Ohio in Media Glare

Recently an interstate custody case has been showered with media attention. As a Maryland Child Custody lawyer, I discuss it here, not because of its drama, but because it is instructive on how interstate custody cases are handled. At the center of the dispute is Rifqa Barry a 17 year old whose Muslim parents had immigrated to the United States to provide their daughter with medical treatment for an eye ailment. She had converted to Christianity and run away in fear that her parents might harm her because of her repudiation of her Muslim religion. In Florida, the courts had assumed emergency jurisdiction over her based on the allegations of threats by her parents. Investigation of these allegations failed to corroborate her fears.

Dispute about which state should assume jurisdiction fall under the Uniform Child Custody Jurisdiction and Enforcement Act that has been adopted by all 50 states. Prior to the act, states courts could often battle over jurisdiction and produce contradictory results. The act was adopted to avoid conflicts among the states and thus bring "order to chaos". Under the Act, one of the states that has jurisdiction will bow out in favor of the other. This is based on a coordinated determination of which state is the more appropriate forum. This decision is made by way of a phone call between the two judges who confer by telephone.

This is exactly what occurred last week, when Judge Daniel Dawson of Florida and Judge Elizabeth Gill of Ohio conferred over speaker phones with lawyers, representatives of numerous government agencies and the media listening. The conclusion was that Judge Dawson received sufficient assurances of Riqa'a safety ( she will be put in custody of the Franklin County Ohio Children's Services Agency and place with a pre-selected foster care family) that he ruled that Florida would decline jurisdiction.

My judgment as a parent and former elected official is that Ohio has been sufficiently alerted to the concerns about Rifqa's safety. The decision appears sound. One can only hope that the family can be reconciled. No doubt that was a factor that weighed heavily in favor of the transfer.


October 5, 2009

Interstate Custody

Veteran child custody attorneys know how complex interstate custody disputes can become. The Maryland Uniform Child Custody Jurisdiction and Enforcement Act brings "some order to the chaos" by avoiding jurisdictional conflict amongst states that could otherwise exercise jurisdiction over a particular child custody dispute. Under the Act which has been enacted by all fifty states, two or more states may have jurisdiction at the same time. The Act envisions that one of the states which has jurisdiction will decline to exercise it after finding that (1) the state is an inconvenient forum to make the custody determination and (2) a court of another state is a more appropriate forum.
A recent decision by Maryland's highest appeals court illustrates a critical step in this process.

In Krebs vs Krebs, the opinion focused on the process by which judges in states with competing jurisdiction communicate with each other and exchange information. This is usually done via a telephone conference that usually results in one jurisdiction declining jurisdiction and the other accepting it.

The Krebs case involved a child who had left his mother's home in Arizona to spend the summer in Maryland with his father. After a custody dispute arose involving these two states, the judges in Maryland and Arizona conferred and decided that the Maryland Court should resolve the dispute. Custody was awarded to the Maryland father. The Maryland Court of Appeals refused to consider the merits of the Arizona mother's argument that the result of the judges' conference, conferring sole jurisdiction on Maryland, violated the Act. The Court ruled that if Mother wanted to appeal that issue, she needed to appeal that issue in the Arizona courts.

This result is an example of how complex interstate custody disputes can become and a reminder of how the conference between judges under the Act can be pivotal in determining the final results.

September 13, 2009

Legislation Responds to Custody Disputes Triggered by Residence Change

A decision by a parent to relocate a child's or parent's residence can trigger alarm bells for the other parent. This frequently triggers a rush to court. However, an experienced Maryland custody lawyer knows that the backlog in the Courts can work against efforts to gain judicial relief.

Legislation enacted in the 2009 legislative session improves the non moving parent's opportunity to respond. Senate Bill 299, effective October 1, 2009, authorizes the court, in any custody or visitation proceeding to include as a condition of custody or visitation that a parent provide notice of at least 90 days of the intent to relocate the permanent residence of the party or the child. This notice can be required for relocation either within or outside the state. The previous law allowed a notice period of 45 days. However the new legislation goes one step further. It provides that if either parent files a petition regarding a proposed relocation within 20 days of the written notice of relocation, the court shall set in a hearing on the petition on an expedited basis. It is critical to note that the petition must be filed within 20 days to warrant expedited treatment.

There is frequently wisdom in the adage "justice delayed is justice denied." In custody or visitation disputes that involve a change of residence, getting into court as quickly as possible may be critical. As a former member of the Maryland House of Delegates representing Howard and Montgomery Counties, I am delighted to see that my former colleagues were astute enough to give these types of cases a scheduling priority. Depending on the facts, this can prove to benefit either the parent who plans to relocate or the parent responding to the move. However, it is most likely that the opportunity for judicial scrutiny will benefit the children at the center of these disputes.

September 10, 2009

United States Armed Forces Members Get Help With Custody and Visitation

On October 1, 2009, a new law takes effect that will assist Maryland Custody and Visitation Lawyers representing members of the United States Armed Forces who have been deployed. As a former nuclear submarine officer and member of the Maryland Legislature, I am heartened at the enactment of a new section of Maryland Family Law that will benefit the children of members of the Armed Forces. The purpose of Chapter 672 (HB 422) is to ensure that any order or modification of child custody or visitation should specifically reference the deployment of the service member and give that member certain rights. These include reasonably accommodating the leave schedule of the service member and facilitating telephone and electronic mail between the deployed parent and the child. The order will also required the deployed member to give timely information regarding the member's leave schedule.

boy_ready_to_ride.jpgWhen the deployed parent returns, there is a right to an expedited hearing on custody and visitation provided that the petition is filed within 30 days of the end of the deployment. The court will also grant an expedited hearing if it finds that extenuating circumstances prohibited the filing within 30 days.

Deployment means compliance with military orders to report for combat operations or other active duty service for which the member is required to report unaccompanied by any family member or that is classified by the service as "remote". It does not cover National Guard or Reserve annual training, inactive duty days or drill weekends.

September 4, 2009

When Other Parent Is Unfit, Estate Planning Should Prepare For the Worst

A recent article in the Wall Street Journal used the Michael Jackson case to serve as a reminder to parents of the importance of naming a guardian for their children as part of their estate planning. That may be true but in my opinion as a Maryland custody lawyer, the story missed an important point. Not all biological parents are as easily persuaded to give up custody as Debbie Rowe. Watching the court award custody to Jackson's mother by consent of the interested parties, may have created a false sense of security in some parents who have reason to be concerned about the "other parent." .

Fortunately most custodial parents regard the "other parent" as the best alternative in case of their death. However there are parents who have reason to be concerned that in the event of death the other biological parent might gain custody. My experience with custody disputes has exposed me to cases that warrant such concern. Here's the problem. In Maryland, there is a fundamental constitution right to raise one's children. Unless a parent is unfit or there are "exceptional" or "extraordinary" circumstances, custody will go to the biological parent as opposed to a third party. The courts have determined that anyone including relatives and persons that might be regarded as de facto parents are "third parties" in this legal equation. In the absence of evidence, there is a presumption in favor of the biological parent.

If you have substantial concerns about what might happen to your child in the event of your death, you may want to consult a family law lawyer with experience in custody disputes. As part of your estate planning you should obtain an evaluation of whether the facts are sufficient to support the conclusion that the other biological parent is unfit or that "exceptional" circumstances exist. If so, the next step is to determine what evidence could be produced in your absence to prove it. The final step is to discuss how a plan for your child might best be implemented in the face of a potential legal challenges.

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 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 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 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.