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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.

Maryland Child Support - What is retroactive child support?

When a parent files for child support, the date of filing starts the clock on the child’s right to child support.  Retroactive child support is the right to child support from the date of filing a request with the court until a child support order is granted.

The amount of child support that accumulates during this period of time are child support arrears.

This applies to initial child support cases, meaning the first time a request for child support is made in a case.  This also applies to modification cases, when a parent requests a change in the existing amount of child support.

In an initial child support case, once the amount of child support is decided, then child support arrears are calculated by multiplying the monthly child support amount by the number of months and partial months from the date of filing until the date until child support is ordered to start being paid.  Any actual amounts paid for the support of the child are then calculated.  Then, the amount of actual payments made is subtracted from the amount of child support that should have been paid.

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.

Maryland Grandparent Custody & Visitation - What is Parental Unfitness?

On August 29, 2017, the highest court in Maryland decided a grandparent custody case, Burak v. Burak, and finally defined what makes parents unfit to have custody of their child(ren).

While custody and visitation are, on the surface, two different things because custody involves with whom a child lives and visitation involves the timesharing schedule, the same factors are considered when deciding both.

This holds true for grandparent custody and visitation cases as well.

Until Burak v. Burak, “unfitness” in the context of grandparent custody and visitation was undefined, leaving much discretion to the trial judge (and, so, inconsistency among judges).

What role does parent disability play in Maryland child custody decisions?

As with all child custody decisions, much (if not all) depends upon the trial judge deciding the case.

But since 2016, Family Law Article §9-107 provides a framework for judges deciding child custody cases involving parent disability.

This follows the Commission on Child Custody Decision Making’s conclusion that “Maryland law can better ensure that child custody determinations involving parents with mental health issues or sensory or physical disabilities are handled in a fair and even manner based on actual evidence and not presumed limitations.”

§9-107 defines “disability” as: “A physical or mental impairment that substantially limits one or more of an individual’s major life activities; a record of having a physical or mental impairment that substantially limits one or more of an individual’s major life activities; or, being regarded as having a physical or mental impairment that substantially limits one or more of an individual’s major life activities.”

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.

A Contract by Any Other Name...Still a Contract

Many family law matters settle. Using many different settlement methods. Whatever settlement method is used, the parties need to get from a shared understanding of the settlement terms to a document confirming those terms. In many cases, this requires a contract, so the settlement is lasting and binding.

However, when parties settle their cases without the benefit of attorneys, a potential risk is making a binding contract without even realizing it or failing to make a durable contract and having the settlement fall apart.

So what is a contract?

What is an Emergency?

Family clients have many urgent concerns because family cases are complicated. But is every urgent issue an emergency in the Court’s eyes?

Short answer: No.

What is an emergency depends both upon the Circuit Court’s case management plan and the Judge hearing the emergency.

Maryland Rule 16-302 requires Maryland Circuit Courts to have case management plans. A case management plan is a “plan for the prompt and efficient scheduling and disposition of actions in the circuit court”, includes a system for classifying and scheduling cases according to complexity and priority.

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