Ten months into 2020, attorneys like Pilar Nichols are unfazed by the new rules for child custody cases implemented in January that require parties to fill out a parenting plan or joint statement for the judge.
For Nichols, the forms mean an extra step, but they haven’t changed the conversations she’s having with clients or the practices and methods she’s incorporated for years.
“I already kind of did this with my clients and I think a lot of us do,” said Nichols, an attorney at Offit Kurman.
As courts slowly reopen amid COVID-19 and custody cases kick back into gear, family lawyers statewide say they are comfortable with the new January rules, which aim to facilitate agreement in child custody cases. If anything, the forms are helping attorneys better outline their plans with clients –– a step no different than what many practitioners have undertaken for years.
Formally known as the Maryland Rules of Procedure 9-204.1 and 9-204.2, the rules require both parties within custody cases to file a written parenting plan or a joint statement highlighting their intentions for the child’s health, education, and various other factors. Which plan is utilized, and whether parents work together or with a mediator is entirely up to the parties.
The changes force parties to openly share their ideas and work together toward an agreement, said Nichols. Putting plans into writing can help organize the client’s priorities while also helping them better understand some of the applicable legal concepts. It could also promote smoother relations in contested cases, Nichols added.
“Sometimes you have two parties that may not want something so different but refuse to communicate with each other,” Nichols said. “It makes people put their cards on the table a little earlier.”
Jeffrey N. Greenblatt, an attorney at Joseph Greenwald & Laake, P.A., regards the forms as an important tool for parties representing themselves. Whereas attorneys often guide their clients through the process, the form offers a checklist and structure to pro se litigants, including those unable to afford representation.
Like many Maryland family lawyers, Heather Sweren is unaffected by the January changes. She regards the new parenting forms as a mere checklist for attorneys to go through with their clients, and potentially unnecessary in cases where parties are represented.
“It’s not a surprise,” said Sweren, an attorney at Brodsky Renehan Pearlstein & Bouquet. “You go through these questions with your client anyway.”
Sweren’s clients generally have the financial wherewithal to retain council and negotiate in mediation, meaning by the time clients get to the scheduling conference there’s a sense of what both parties are expecting with the custody arrangement.
Since the pandemic began, Sweren has submitted two forms under the new procedures. Although failure to fill out the documents could result in a court sanction, some jurisdictions are stricter than others.
“The rule says one thing, but if you show up in some places without a parenting plan they’re not kicking you out of the courtroom,” Sweren said. “It hasn’t made it less or more likely to resolve the case.”
Tammy Begun, a family law attorney at Price Benowitz LLP, is curious to see how the court will respond to instances where litigants fail to fill out the form; there are requirements regarding who completes and files the document first.
“The court may say to go down the hall and fill it out,” Begun said. “But they really can’t hold it against one party or the other because custody matters are in the best interest of the children.”
While many cases will utilize the parenting plan, Greenblatt said there may be potential problems arising in those situations requiring the joint-statement and where the parties disagree. The form offers an opportunity for attorneys to give information to the judge before the trial begins.
“That is going to be a platform for creative attorneys to provide the court pretrial with a list of horribles,” Greenblatt said. “It puts all of these thoughts in the court’s mind in advance of having a cross-examination or being able to hear from the other side.”
For judges that rarely deal with domestic cases or family law, the forms offer guidance, but some attorneys argue it’s too early to see the true effects of the rulings, Begun said.
“It’s early on so, we’re all learning it,” Begun said. “I do think that once the attorneys and the bench get more comfortable with the form, maybe it will have different uses, but we just don’t know right now.”