Maryland Divorce Lawyer Blog

Impact of New Maryland Domestic Violence Bills on Child Custody

March 7, 2014 | by Anthony A. Fatemi, LLC

Domestic violence is a more common problem than you might believe. 1.3 million American women are victims of physical assault by a sexual partner every year. Some of these physical assaults result in homicide. Not all victims are women, but about 85% are. Maryland courts take allegations of domestic violence into account when determining child custody. Often the abusers not only abuse their partners, but also abuse children in the house, triggering the cycle of intergenerational violence whereby male children grow up to abuse their own partners and children. Several measures were recently proposed in the Maryland General Assembly that are expected to increase victim protection in the domestic violence context.

One of the bills reduces the burden of proof required to get a protective order against the person allegedly committing the domestic violence. The burden of proof in Maryland to get such an order currently is “clear and convincing evidence.” This is a higher standard that any other state in the nation. This measure would lower the burden of proof to a “preponderance of the evidence.” State Senator Brian E. Frosh said this measure is the most important in the group of bills, explaining that the preponderance of the evidence standard is what’s used in almost other civil matters. The Maryland governor’s office found that 1777 protective orders out of 19,043 applications were denied based on the petitioner’s inability to met the high burden of proof.

Another bill calls for those who commit domestic violence in front of children to receive an additional five years in prison. About 70% of domestic violence incidents happen in front of children and can do serious damage to them psychologically. Vicki Sadehvandi, the executive director of Citizens Assisting and Sheltering the Abused (CASA) noted that “Witnessing the abuse creates ‘the cycle of abuse… Even if they escape physical injury, they suffer from mental injury/abuse.” Many who go on to commit acts of domestic violence were victims or witnesses to domestic violence when younger. The goal of the bill is to create a deterrent for the man people who perpetrate domestic violence repeatedly. Continue reading

Reunification Efforts in Maryland Child Custody

February 25, 2014 | by Anthony A. Fatemi, LLC

When a Maryland child is removed from a parent’s care and custody, the department of social services has a statutory obligation to make reasonable efforts to reunify the child with the parent. However, there are cases in which a parent’s inability to recognize and seek treatment for his or her problems can result in those reunification efforts getting terminated.

In a recent case a mother appealed from an order permitting the Baltimore City Department of Social Services (“BCDSS”) to stop making reunification efforts between the mother and her daughter. The mother had five children and a long history with BSDSS. This case involved her youngest child, but she had previously brought her son to the hospital to be hospitalized. Instead, she was evaluated and hospitalized for psychiatric treatment.

The Circuit Court found that her son and an older daughter were children in need of assistance (CINA) and took them out of her custody and placed them with the mother’s parents. The mother had only sporadic contact with her son after that and he turned 21 without reunification. Continue reading

Do You Place Your Mental Health At Issue When Seeking Sole Custody?

February 12, 2014 | by Anthony A. Fatemi, LLC

Maryland recognizes the importance of psychotherapist-patient privilege in cases where a parent seeks psychiatric help or counseling. This privilege keeps records confidential in many, but not all instances. The issue of your mental health can come up in a custody proceeding.

In a 2000 case, a mother sought sole custody of her two minor children. She had married in 1985 and worked as a paralegal. Her husband worked as an attorney. When they first married, she had a history of psychiatric treatment, which she continued to receive at her husband’s request through their marriage. The couple had two sons and separated and reconciled several times over the years. They saw a psychiatrist jointly for a period.

When they separated in 1995, they prepared an agreement, specifying joint guardianship, care and custody of their children, with the mother to have primary residential care of them. However, when she filed for divorce, she sought sole custody. Her husband sought sole custody in response. Continue reading

Is a Settlement From An Employment Lawsuit Marital Property in Maryland?

February 5, 2014 | by Anthony A. Fatemi, LLC

In a 2010 case an appellate court considered whether funds received by the ex-wife as a settlement in an employment discrimination claim were marital property. The couple was married in 1998 and had two children, ages 10 and 4 at the time of trial in this case. The ex-wife was an attorney and the ex-husband was a clerk with the IRS. The ex-wife filed for divorce on the grounds of constructive desertion. The ex-husband filed a counterclaim on the same basis. They had lived apart for 1 year beforehand. The court granted the divorce on that basis.

During the marriage, the ex-wife’s employment with her law firm was terminated as of December 31, 2002. She filed a discrimination lawsuit against the firm and its partners and employees, alleging violations of the Family and Medical Leave Act. She settled the case in 2006 and was paid $550,000. These were paid in two installments.

In a joint statement to the court in connection with the divorce proceedings, she claims she kept $300,000 from the settlement. She contended that the settlement didn’t specify which portion represented what element of damage and therefore, the settlement could not be characterized as marital property. The ex-husband argued that the settlement was marital property. The trial court found that the lawsuit was based on employer practices that had occurred during the marriage. However, it did not find that the settlement was marital property. Continue reading

Corporal Punishment in Maryland Family Law

January 26, 2014 | by Anthony A. Fatemi, LLC

Before administering corporal punishment, a parent in Maryland must consider the child’s age, size, ability to understand the punishment, and ability to comply with the punishment. Because standards have changed significantly in the last few decades, it can be difficult for some parents to know what kinds of punishments are completely unacceptable and which ones are more appropriate to a situation. While a “spanking” may be appropriate for some children at certain developmental stages, haphazard striking in a fit of rage is not. This issue can become a critical one in a divorce and child custody case.

Section 4-501(a) contains the definition of abuse for family law cases. Abuse under 4-501 is defined as (1) an act causing serious bodily harm, (2) an act that places someone covered by the law in fear of imminent serious bodily harm, (3) assault in any degree, (4) rape or sexual offense, and (5) false imprisonment. Abuse can also include abuse of a kid, but it does not preclude reasonable corporal punishment by a parent or stepparent, depending upon the kid’s age or condition.

Section 5-701 covers “child abuse and neglect.” That law defines abuse as (1) physical or mental injury of a child by any person who has responsibility for the child where circumstances indicate the child’s health is harmed or (2) sexual abuse.

Is “De Facto” Parenthood Recognized in Maryland?

January 15, 2014 | by Anthony A. Fatemi, LLC

In a 2008 case, a Maryland appellate court considered whether Maryland recognizes de facto parenthood. In the case, Margaret, a woman in a committed same-sex relationship was seeking custody or visitation of a child adopted by Janice, the other woman in the relationship.

The two women met in 1986 and lived together for the better part of 18 year lived together in Janice’s residence. Janice wanted to be a mother. She was not able to get pregnant through in vitro fertilization, so she adopted a girl from India. Margaret did not try to adopt the girl, though both she and Janice shared childcare responsibilities. In 2004, they separated and Margaret moved out.

After they separated, Margaret saw the girl 3-4 times per week. The two women started having problems and Janice restricted Margaret’s visitation. In the fall of 2004, Janice sent a letter requiring Margaret to arrange visitation through her and to get approval for any activities she wanted to do with the girl. Continue reading

Untimely Objections in Maryland Family Law

January 10, 2014 | by Anthony A. Fatemi, LLC

If you are served with a notice that your parental rights may be terminated or any other kind of legal notice from the State related to your children, it is critical to contact a Maryland family law attorney as soon as possible. Some parents fail to understand the urgency of these notices and take their time in responding. But important legal time limits may exist and any kind of delay may jeopardize your long-term relationship with your children.

In a 2009 case, three government agencies had sought to terminate a mother’s parental rights in connection with her three children. In 2004, two of her daughters were placed in foster care and found to be children in need of assistance (CINA). Three days after he was born, her son was also found to be a CINA.

An agency sought guardianship of all the kids on the same day the show cause orders were filed. These orders stated that if no objection was filed within 30 days after the Order was served on her, the mother would be agreeing to terminate parental rights. The mother was personally served on August 26, 2008. The father was served two days later. Continue reading

Personal Injury Settlements in the Context of Child Support Arrearages

January 5, 2014 | by Anthony A. Fatemi, LLC

Maryland has a strong policy supporting child support payments. Typically a custodial parent can ask to have the other parent’s wages garnished when the other parent fails to pay court-mandated child support. However, not all of the other parent’s funds can be garnished to pay off child support arrearages. In a 2010 case, a male custodial parent of two minors tried to garnish funds held by his wife’ s law firm. The money held by the law firm was compensation for a personal injury.

The Circuit Court held that money recovered from a personal injury lawsuit is exempt from garnishment. The ex-husband appealed. The Court of Special Appeals affirmed. The Court of Appeals reviewed the question of whether the personal injury settlement money is exempt from execution on a judgment.

The couple had married in 1985 and, after having two children, got a divorce. The court at that time did not provide for child support. A few years later, however, the mother was ordered to pay child support in the amount of $533.61 every month to the father who was the custodial parent. Continue reading

Courts May Not Blindly Apply Administrative Policies that Prejudice of Maryland Parents’ Due Process Rights

December 27, 2013 | by Anthony A. Fatemi, LLC

In a recent case, a Maryland appellate court considered a local court policy that limited the parties’ ability to access investigative reports ordered by the court in a child custody matter. The mother challenged this policy after the court awarded sole legal and physical custody to the father of her children.

The case arose when a father filed for divorce. He sought sole physical and legal custody of their two kids. The court ordered that the Adoption and Custody Unit (ACU) investigate and prepare a report. The ACU interviewed the parties, relatives, and the kids and discovered the parties’ personal history, including education, housing, employment, criminal and physical and mental health histories. The report was 147 pages including records. The report did not recommend which parent should get custody.

The day the report was due came and went. The ACU filed the report late. The parties’ attorneys were notified they could now look at the report at the clerk’s office. The policy was that the attorneys could view the report in the office, but could not copy any sections or take it out of the office. Continue reading

Division of Pension Benefits in Maryland Divorces

December 26, 2013 | by Anthony A. Fatemi, LLC

Property division in Maryland divorce cases concerns not just tangible items that were used during the marriage, but also property that accrued during the marriage, such as investments and pension benefits. In a 2009 appellate case, the Maryland Court of Special Appeals considered whether an ex-husband should be required to pay his ex-wife $19,936 in pension arrears. The case arose after a husband and wife entered into a Separation Agreement that was incorporated into the Judgment of Absolute Divorce.

Under the terms of the agreement, the husband was required to pay part of his pension to the wife. The amount was calculated by multiplying 40% times a fraction. The numerator of the fraction was the number of years the parties were married during which the pension accrued and the denominator was the total number of years in which the husband had accrued the pension. The resulting figure was to be multiplied by the total amount of the pension. The divorce judgment permitted the court to keep jurisdiction for purposes of modifying the order after a Qualified Domestic Relations Order was issued.

Eleven years later, the ex-husband retired from his company at age 62. He started to receive his pension, but did not let his ex-wife know. Continue reading