Maryland Divorce Attorney Blog

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.

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.

When 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.

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.