Maryland Divorce Attorney Blog

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.

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.

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.

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.