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Can Immigration Status Impact Maryland Child Support?

On September 29, the Court of Special Appeals issued an opinion about child support, focusing on the intersection of voluntary impoverishment (deliberate unemployment or underemployment to avoid paying child support) and immigration status.

In short, in Dillon v. Miller, the Appellate Court decided that the parent could support the child with monetary gifts from family (which the parent testified to receiving), income from working in the US, and income from working in the parent’s home country. The Court pointed to the lack of credible evidence supporting the parent’s argument that returning to the parent’s home country would jeopardize the parent’s immigration status in the US.

On income from work in the US, the Court said:

“To be clear, we are not telling Dillon that he must work illegally to pay child support. Rather, Dillon admitted that he works when he can, even though he claims that he does not have a green card or work authorization. We can, and must, count the salary and wages that he earns from those jobs towards his child support obligations. See Gallagher v. Gallagher, 118 Md. App. 567, 581-82 (1997) (stating that determining alimony based on illegal income does not encourage or require a person to break the law, but merely recognizes an existing reality).”

Customizing Your Case - Parenting Time Schedules

This post expands on earlier posts:  What is Child Custody?,  Customizing Your Case – Physical Custody & Parenting Time, and Customizing Your Case – Legal Custody.

Physical custody involves where a child lives, when a child spends time with each parent, and any conditions.  Physical custody is also called residential custody or parenting time.  It includes the schedule, holidays, and vacation time, which are often referred to as visitation or access.

Physical custody falls into three broad categories:

  1. Sole physical custody, which is also referred to as primary;
  2. Shared physical custody, which is also referred to as joint; and,
  3. Split physical custody, when the parents have multiple children and at least one child resides with each parent.

In Maryland, we do not have a custody statute.  Shared physical custody is defined, in the context of child support, as: “each parent keeps the child or children overnight for more than 35% of the year and…both parents contribute to the expenses of the child or children in addition to the payment of child support.”  So, less than 35% of annual overnights is sole physical custody.

Customizing Your Case - Legal Custody

This post expands on earlier posts:  What is Child Custody? and Customizing Your Case – Physical Custody & Parenting Time

Legal custody involves decisions about health, education, and religious upbringing of a child.  It is also called decision making.  By agreement, parents can define legal custody to involve additional issues, such as selection of extracurricular activities, childcare providers, and other important matters about which both parents want to give input and make decisions.  Legal custody involves communication, consultation, access to information, participation/attendance, and making the decision.

In Maryland, we do not have a custody statute.  There is not a single, unified definition of legal custody, though it has been described as:  “Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.” and “The parent not granted legal custody will, under ordinary circumstances, retain authority to make necessary day-to-day decisions concerning the child’s welfare during the time the child is in that parent’s physical custody. Thus, a parent exercising physical custody over a child, whether pursuant to an order of visitation or to an order of shared physical custody, necessarily possesses the authority to control and discipline the child during the period of physical custody. Similarly, that parent has the authority to consent to emergency surgery or emergency major medical care when there is insufficient time to contact the parent having legal custody.”  Taylor v. Taylor, 306 Md. 290 (1986).

Customizing Your Case - Physical Custody & Parenting Time

This post expands on an earlier post:  What is Child Custody?

Physical custody involves where a child lives, when a child spends time with each parent, and any conditions.  Physical custody is also called residential custody or parenting time.  It includes the schedule, holidays, and vacation time, which are often referred to as visitation or access.

Physical custody falls into three broad categories:

  1. Sole physical custody, which is also referred to as primary;
  2. Shared physical custody, which is also referred to as joint; and,
  3. Split physical custody, when the parents have multiple children and at least one child resides with each parent.

In Maryland, we do not have a custody statute.  Shared physical custody is defined, in the context of child support, as: “each parent keeps the child or children overnight for more than 35% of the year and…both parents contribute to the expenses of the child or children in addition to the payment of child support.”  So, less than 35% of annual overnights is sole physical custody.

What is Child Custody?

In Maryland, child custody has two main parts:  physical custody and legal custody.

Physical custody involves where a child lives, when a child spends time with each parent, and any conditions.  Physical custody is also called residential custody or parenting time.  It includes the schedule, holidays, and vacation time, which are often referred to as visitation or access.

Legal custody involves decision making about health, education, and religious upbringing of a child.  It is also called decision making.  By agreement, parents can define legal custody to involve additional issues, such as selection of extracurricular activities, childcare providers, and other important matters about which both parents want to give input and decide.  Legal custody involves communication, consultation, access to information, participation, and making the decision.

At What Age Can A Child Choose With Which Parent to Live?

In short, at no age does a child in Maryland get to choose to live with a parent.

As long as a child is under the age of 18, a child does not have a legal right to decide where or with whom he or she will live.

A few laws give children rights at certain ages, but these do not include choosing where or with which parent a child will live.

As of age 16, a child who is the subject of a custody order can file his/her own petition to request a change in custody.  Family Law Article §9-103 permits this and states:

§ 9-103. Petition by child to change custody

When Co-Parenting Doesn’t Work…

There has been much ado online recently about successful co-parents.  Shared family vacations, shared family photos, shared holiday celebrations…even matching t-shirts.  This is the ideal when two parents, despite their differences, co-parent organically.

In my experience, there are three categories of co-parenting styles:  1) those who do it organically; 2) those who “make it work”; and, 3) those who can’t. 

Those who co-parent organically succeed at reinventing what it means to be “family” despite separate households.  They share the same beliefs about parenting, communicate well, and do not espouse the “territoriality” or “children as possessions” behavior (my time is mine…my child, my way…only I know best) that hallmarks, to varying degrees, the other two categories.  These folks are the most likely to have no parenting agreement or custody order, or if they do, it lives in a drawer and they live life doing what’s best for their children.

Divorce Roundtable

The Divorce Roundtable of Montgomery County is a non-profit organization dedicated to improving the divorce process for Montgomery County area families, and especially children.  Formed in 1992, it is made up of judges, masters, court staff, mediators, therapists, attorneys, agency personnel, and collaborative professionals.  The Divorce Roundtable introduced, among many other court projects, the co-parenting skills training and court-sponsored custody mediation.  The organization also testifies on proposed family law related legislation. 

Several of our attorneys are current or former members of The Divorce Roundtable, including Kevin G. Hessler, P. Lindsay Parvis, and Jeff Hannon, who is the Past-Chair of the organization having served from 2009 - 2011.   During Jeff’s two-year tenure as Chair, he organized and presented two all day symposiums: Faces of Advocacy and Parenting Together After Separation. Lindsay has been an active member since 2014. 

Click here for helpful links from the Divorce Roundtable. 

Types of Evaluations in Custody Cases Volume 2: Private Custody Evaluations

In contested custody cases, there are many types of evaluations that the court can order or parties can agree to undergo in order to assess the fitness of the parents and the living and decision-making arrangements that suit the best interests of the children.  These fall into two broad categories:

  1. Evaluations performed by the Court and courthouse staff or contractors; and,
  2. Evaluations performed by private professionals.  There are many different types of evaluations performed by private professionals.  For example, private custody evaluations, psychological testing or evaluations, drug/substance/alcohol evaluations or assessments and testing, psychosexual risk assessments and other evaluations of alleged and convicted sexual offenders, and so on.

Types of Evaluations in Custody Cases Volume 1: Court Evaluations

In contested custody cases, there are many types of evaluations that the court can order or parties can agree to undergo in order to assess the fitness of the parents and the living and decision-making arrangements that suit the best interests of the children.  These fall into two broad categories:

  1. Evaluations performed by the Court and courthouse staff or contractors; and,
  2. Evaluations performed by private professionals.  There are many different types of evaluations performed by private professionals.  For example, private custody evaluations, psychological testing or evaluations, drug/substance/alcohol evaluations or assessments and testing, psychosexual risk assessments and other evaluations of alleged and convicted sexual offenders, and so on.

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