Maryland Family Law Maryland family law opinions and commentary
The Maryland General Assembly enters its three-month session with the results of a year-long study on child custody decisions in its hands, and with a longtime proponent of reforming the state’s divorce laws newly in charge of a key Senate committee.
The report is the work of the Maryland Commission on Child Custody Decision-Making, created by the legislature in 2013 to make recommendations for the 2015 session. And the man with a new pulpit is Sen. Robert A. “Bobby” Zirkin, who became chairman of the Senate Judicial Proceedings Committee following Sen. Brian E. Frosh’s election as attorney general.
Compared to last year, when the focus was on a package of domestic-violence bills backed by the O’Malley administration, these developments put custody and divorce issues squarely back in the spotlight. However, the session will also see measures to enhance protections for victims of domestic violence and sexual assault.
Custody factors
Del. Kathleen M. Dumais, who will be the chief sponsor of the Maryland Custody Decision-Making Statute, says the goal is to provide consistency and predictability to a legal process that for so long has had neither: the awarding of child custody, according to the bill’s chief sponsor.
Dumais said the bill would essentially codify Maryland case law on judicial determinations of child custody and visitation. Codification will make the standards more accessible to non-lawyers in custody proceedings, added Dumais, D-Montgomery and a family-law attorney at Ethridge, Quinn, Kemp, McAuliffe, Rowan & Hartinger in Rockville.
“We don’t have anything in our statutes about custody,” Dumais said. “All the information is in case law.”
Dumais’ proposal will follow the recommendations of the custody decision-making commission, a panel on which she served and which was formed to bring clarity to the state’s law governing custody.
The proposal would expressly require judges to base custody and visitation on each parent’s ability to ensure the child’s physical safety, support his or her emotional security and promote his or her interpersonal skills and intellectual growth. The statute would require judges to base their decisions on each parent’s ability to meet the child’s day-to-day needs regarding education, socialization, culture, religion, food, shelter, clothing and health.
Dumais said self-represented parents face a distinct disadvantage when the custody factors are hidden in case books rather than in the Maryland code.
As an attorney, “I may know where to go,” Dumais said, “but most pro se litigants aren’t going to know where to go.”
The legislation tells litigants that “this is what the court is going to look for so therefore this is what [they] need to present to the court,” Dumais said.
The commission, in recommendations issued Dec. 1, called for “a clear, consistent, predictable, gender-neutral process” and a focus on factors that affect a child’s long-term adjustment, including “significant regular contact with each parent.” (Maryland Family Law Update, December 2014.)
But Del. Jill P. Carter said the recommendations fall short of protecting the rights of fathers in custody disputes.
“The bias in the court system is what we have to change,” Carter said. “Both parents matter in the life of the child.”
Carter, a Baltimore Democrat, said she will reintroduce legislation this session to require judges in custody proceedings to begin with “a rebuttable presumption that joint legal and physical custody is in the best interest of the child.” The measure received hearings, but no votes, in the Senate Judicial Proceedings and House Judiciary committees last year.
Carter will also reintroduce a bill to require judges to consider custody and visitation issues whenever they make a child-support determination, and to require the Child Support Enforcement Administration to let obligors know they can ask the court to revise custody and visitation issues. That bill passed the House but died in the Senate last year.
Maryland law “devalues fathers in child’s lives generally” by requiring them to pay child support but not treating them equally with regard to child custody, Carter said.
“We are shaping a fatherless society,” she said. “We are creating a generation that believes the value of a parent is the amount of money that parent is able to pay.”
Family law attorney James J. Gross, who has written about father’s rights in divorce, said Carter’s rebuttable-presumption legislation would not change the outcome in child custody litigation. Judges remain bound to consider the best interest of the child, which will always rebut the presumption in favor of joint custody, said Gross, of Thyden Gross and Callahan LLP in Chevy Chase.
The presumption, however, would help in settlement negotiations by providing “a slight advantage to the parent who wants shared custody,” said Gross, author of Father’s Rights: A Legal Guide to Protecting the Best Interests of Your Children (Sphinx Publishing, 2004).
“It’s a very controversial and tough subject,” Gross said of the chances for passage. “There are strong advocates on both sides.”
The new chair
As a member of the Senate Judicial Proceedings Committee, Zirkin has sponsored many bills to ease the requirement that couples live apart before divorcing.
This year, as committee chair, Zirkin said he will start by reintroducing legislation that died last year: a bill to enable couples to forgo the statutory 12-month separation requirement if they have executed a marriage dissolution agreement that resolves all issues related to alimony, property rights and the care, custody and support of their minor ore dependent children.
The legislation, which passed the Senate 47-0 last year but died in committee in the House, would “entice” estranged couples to proceed via collaboration rather than confrontation and litigation, said Zirkin, D-Baltimore County.
The measure is based on the “very sound” concept of ensuring that uncontested divorces remain uncontested.
“Anybody who practices family law will tell you that the courts are clogged with cases that should never be litigated in court,” said Zirkin, who operates a two-lawyer civil-litigation firm in Owings Mills. “The law should not be making it as challenging as possible to get out from under a marriage.”
Zirkin said the legislation will also be “good for kids” because the requirement to have a workable dissolution agreement will encourage the parents to resolve custody and visitation issues collaboratively.
“It would certainly unclog courts,” Zirkin said. “The law gets into way too much detail in people’s lives.”
Zirkin is far less enthusiastic about a proposal for a four-year, $3.03 million pilot program to provide counsel to indigent parents in custody disputes in Baltimore, Prince George’s County and the lower Eastern Shore. (Maryland Family Law Update, November 2014).
Del. Samuel I. “Sandy” Rosenberg, who intends to introduce the bill based on the recommendations of the Task Force to Study Implementing a Civil Right to Counsel in Maryland, called it “a matter of fundamental fairness.”
But Zirkin, who served on the task force yet abstained from its recommendations, has said he would not support legislation calling for state-supported counsel in child custody cases without “full” legislative hearings that examine the scope of the lawyer’s representation and its fiscal impact on the state.
More measures
With regard to domestic violence, legislation will be introduced this session to give judges who issue protective orders the express authority to also order respondents to return items belonging to those seeking protection, such as passports or other forms of identification, said Lisae C. Jordan, executive director and counsel for the Maryland Coalition Against Sexual Assault.
“Time and time again courts are saying to us that ‘no, we can’t do that; it’s not listed in the statute,’” Jordan said.
The bill would enable judges to order any relief they deem appropriate to protect any person eligible for relief.
Sen. Jamin B. “Jamie” Raskin said he will try again this session — for the sixth time — to pass legislation to make it easier for judges to strip parental rights from men who allegedly fathered children through rape.
Under the measure, trial judges could remove an alleged rapist’s paternity rights based on “clear and convincing evidence” that the man raped the woman and the child was “conceived as a result of the act.” The standard is lower than the proof beyond a reasonable doubt required for a criminal conviction.
The bill, dubbed the Rape Survivor Family Protection Act, perennially passes the Senate but fails in Chairman Joseph F. Vallario Jr.’s House Judiciary Committee — generally over concerns that the accused fathers would neither receive adequate notice of the mother’s motion nor have a realistic chance to challenge the accusation of sexual assault in court. It passed the Senate on a 46-0 vote but died in the Judiciary Committee without ever coming up for a vote last year.
Since then, though, the issue “has only grown in prominence,” said Raskin, D-Montgomery. “I do think this is the year that the General Assembly will state emphatically that sexual assault does not make a family and that a woman has the right to petition the court to terminate the paternity rights of her assailant.”
“I am cautiously optimistic that 2015 will be our breakthrough year,” he said.
