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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 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.

On the Journey - When the Trial is Over but the Case is Not

When assessing the advantages and disadvantages of settlement versus trial, it is worth considering what happens after the trial is over. When the trial ends, the case is rarely over.

In Maryland, for 30 days after the ruling, either party has the right to an automatic appeal of a Judge’s decision. An appeal adds to the cost, delays an outcome, and may only cause further uncertainty if granted and a further hearing must be held. All while life marches on, the children grow up and the financial landscape changes. For Magistrate’s, there is an automatic right to take exceptions (which is essentially an appeal) within 10 days of the Magistrate’s recommendations. This stops entry of the court order, requires a further hearing before a Judge, and leaves the parties in limbo until the Judge’s ruling.

What Is Non-Marital Property and Why Should I Care?

Non-marital property consists of (a) the property you owned prior to your marriage; (b) the property you acquired during your marriage by inheritance or gift from third parties (not your spouse); and (c) any property directly traceable to any of the above sources. See Md. Code Ann. Family Law § 8-201(e)(3). In a divorce action, each party gets to keep their non-marital property, provided they are able to prove that such property was directly acquired via one of the three above-listed sources.  This is where the proverbial plot thickens, particularly in long-term marriages. 

How many people keep records verifying their acquisition of jewelry or a baseball card collection that they purchased 20 or more years ago?  How many people keep evidence confirming their receipt of funds from a deceased relative’s estate or life insurance policy?  How many people maintain statements dating back to the date of marriage for their existing 401(k) plans?  In my experience, most do not.  And most banks only keep records dating back seven years, further complicating the proof recovery problem. 

Whether and When to Involve an Attorney in Mediation

Many couples choose mediation to resolve their family matters.  Mediation gives you control over who facilitates the settlement discussion, over how to structure and pace the process, and – most importantly – over the outcome.  Mediation can be efficient and cost-effective.  Mediation is not, however, the same as representation by an attorney.  The mediator is a neutral, whose role is to facilitate communication between the participants, identify issues, and explore settlement options.  The goal is settlement, not the best deal for you or protecting your best interests.  This raises the question of…whether and when to involve an attorney in the mediation process?

In court-ordered mediation, your attorney may be required to participate from start to finish.  So, the decision may be made for you. 

In private, voluntary mediation, there are many options and no one-fits-all answer. 

Request for Production of Documents

Jordan Rossi is a Paralegal at DHHW.  She has worked with Dragga, Hannon, Hessler & Wills since 2012.

During the course of your case, you will engage in discovery, which is exactly what it sounds like, the discovering and disclosing of information about the opposing party.  This includes the answering of questions and exchanging of information by way of a document production. 

The exchanging of documents starts when receiving a written Request for Production of Documents.  Each party is allowed to request documents from the other, and Maryland Rules have not imposed a limit on how many requests may be asked of a party, within reason.  Providing the documents to the opposing side is known as the Response to Request for Production of Documents, and contains a written portion as well as the documents themselves.  You have 30 days from service of the Request for Production of Documents to gather what is requested so it can be provided to the opposing side. 

Starting the Journey – Hiring an Attorney – What to consider?

Hiring an attorney means putting your trust in someone to advocate for you, your family, and your future on the unfamiliar path of divorce and custody.  It is a stressful journey, arising from a difficult and challenging family situation.  When you may feel like your future and your family are at risk.  Finding the right attorney is the first step on that journey.

There are lots of ways to find an attorney – asking those you know who have been through this, asking a trusted professional (accountant, therapist, doctor, etc.), online searches, advertisements, and more.  Followed by information gathering – usually by word of mouth and online – to narrow the options.  Then, contacting the offices of a select few to decide if you will make an appointment, probably depending on cost, availability, and your initial impressions from that contact.  Culminating with the initial consultation.  All with the goal of deciding whether to place your trust in this attorney with what’s most important – you, your family, and your future.

2017 Maryland Pet Visitation Bill Crated

In Maryland divorce cases, pets acquired during the marriage are considered personal property.  This means that current law entitles the court to determine ownership and nothing more.  Not matters more suited to a member of the family, such as custody, visitation, financial support, or extraordinary expenses.  To many, a pet is a beloved, constant companion and family member.  The law has not kept up with the reality of the relationships between pets and their caregivers.

There are signs of progress.  In 2011, the domestic violence law changed, empowering the court to award “temporary possession of any pet” in temporary and final protective orders.  Reference to “possession”, instead of “custody”, is consistent with treatment of pets as property (as compared with “custody” used in reference to children).  While a step in the right direction, this relief is limited to domestic violence cases and unavailable (for now) in divorce.

Lindsay Parvis Published in Maryland Family Law Advocate

The April 2017 edition of the Maryland Family Law Advocate, a publication of the MSBA Family & Juvenile Law Section, features an article authored by Geraldine Welikson Hess, Esquire, and updated by Lindsay Parvis.  The article, Montgomery County: Practice and Procedure, provides an overview of the Montgomery County Circuit Court Family law procedures.  The article is reprinted here with permission of the FJLS.

What is a Qualified Domestic Relations Order?

A Qualified Domestic Relations Order (QDRO, pronounced “qua-dro”) is an order entered by a court to direct the division of the marital property portion of a retirement interest in a divorce.  A QDRO may also be used to collect payment of child support and/or alimony.  This article focuses on division of retirement in divorce.

Retirement plans, profit sharing, Individual Retirement Accounts (IRAs), pensions, 401Ks, deferred compensation plans, and Keogh plans are just several examples of an exhaustive list of retirement assets that the court may consider marital property subject to division. If the plan is defined as a “tax qualified” plan by the Employee Retirement Income Security Act of 1974 (ERISA), then the transfer of retirement assets is done through a QDRO.

A QDRO allows the spouse who is not a retirement plan participant to be recognized as an “alternate payee” and to collect all or part of the retirement benefits which belong to the plan participant. The alternate payee may be allowed to receive current or future benefits depending on the plan and/or agreement reached by the spouses.

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