Checklists for Your Child Custody Battle

Contested Child Custody Checklist

In contested child custody cases, Maryland courts apply the best interests standard.  Montgomery County v. Sanders, 38 Md. App. 406, 381 A.2d 1154 (1977).  This means the judge’s best guess as to where the child will be better off in the future.  However, there are certain factors the judge must consider in deciding custody disputes.  These are:

  1. Fitness of a parent to have custody.
  2. Character and reputation of the parties.
  3. Desire of the parents to have custody and any agreements between them.
  4. potential for maintaining natural family relations.
  5. Preferences of the children.
  6. Material opportunities for the child.
  7. Age, health, and sex of the child.
  8. Residences of the parents and the opportunity for visitations.
  9. The time the parties have been separated.
  10. Whether there was a voluntarily abandonment of the child.

Joint Child Custody Checklist

Taylor v. Taylor, 306 Md.  App. 290, 508 A2d 964 (1986) sets forth factors the court must consider when a party seeks joint custody.  They are:

  1. The parties’ capacity to agree on parenting
  2. The parties’ willingness to share custody. The parties’ fitness to have custody.
  3. The child’s relationship established with each parent.
  4. The child’s preference.
  5. Disruption to the child’s social and school life.
  6. How far apart the parents live.
  7. Demands of the parent’s jobs.
  8. The age and number of children.
  9. The sincerity of the parties’ request for custody.
  10.  Financial status.
  11. Impact on any government benefits.
  12. Benefit to the parties.
  13. Anything else, including the Sanders factors above.
/by James J. Gross

Help! Just Found Out Divorce Mediation Is Tuesday!

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“Just found out divorce mediation is Tuesday afternoon!!!

Help! I’m nervous

What do I do?!

What do I say?

How do I dress?

How do I act?

What questions should/shouldn’t I ask?

Give me all tips/advice you all have please! ”

— Nicole’s post on Facebook

Advice for Handling Divorce Mediation

Nicole:

Everybody is nervous in a divorce. In fact I’d be nervous if you weren’t nervous. But here’s a tip that will help you calm down and give you more confidence during the mediation.

Write the main categories to be decided down the left side of a piece of paper. These will be your rows. The main categories are child custody, child visitation, child support, alimony, property division, and legal fees. You can expand on this by adding subcategories.

For example, under visitation, you might have subcategories of weekly schedule, holidays and summer vacations. Under property division, you would have the big ones, like house and pensions, as well as bank accounts, automobiles, and furniture.

Next, make three columns labeled best, middle, and showstopper. Fill out your objective in each row and column. This will make you think about what you really want, what you can live with or without, and what will make you walk out of the room if you don’t get. It also help you know what to say.

It doesn’t matter so much how you dress but I would suggest business or business casual will make you feel comfortable. Act firmly but politely. Remember you are there to problem solve, not to blame or assess fault. You can ask any question you want. Let the mediator take the lead.

You don’t have to reach an agreement if you don’t think it is fair. But as the mediator will probably tell you, you will save a lot of time and money if you do.

 

/by James J. Gross

The Thin Man’s Divorce

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“I’ve never been divorced before,”said the thin man sitting across the desk from me. His dark narrow eyes darted back and forth as he nervously sipped the bottled water my receptionist had given him.  He sank into one of the two wing-back chairs in my office. “I don’t know anything about it.  I have a million questions.”

In my line of work as a divorce lawyer I meet all kinds of people. I tried to put the thin man at ease. I put my fingers together in a church steeple, closed my eyes halfway, and leaned back in my burgundy leather office chair in my best Perry Mason imitation. “Well I’ve been divorced twice, so ask me your questions.”  I then proceeded to give him the following answers to his questions one by one.

Question 1.  I had an affair.  Am I going to lose everything in the divorce? 

Adultery gives your spouse grounds for divorce, not the right to 100% of the house, cars, 401(K), and everything else.  Jointly owned properties are divided equally.  The judge can make a marital award to make sure the division is fair.  In determining the marital award, the judge considers several factors.  One of these is who was at fault in the termination of the marriage.  The judge can also make adjustments for any marital funds you have spent on the affair.

Question 2.  Will the court take the children away from me because I cheated?

Adultery may make you a bad spouse but it does not necessarily make you a bad parent.  In Davis v. Davis, 280 Md 119, 372 A.2d 231 (1977), the Maryland Court of Appeals said

Whereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the children’s welfare.

The court looks at what is in the best interests of the children, not what is in the best interests of the parents.

Question 3.  Can My Spouse Get a Divorced if I Don’t Agree?

While it takes two people to get married, it only takes one to get divorced.   If you don’t want a divorce, you can slow down the process, but a spouse determined to get a divorce can get one.

Question 4. Do I Have to Have a Lawyer to File for Divorce?

It is not a requirement that you hire a lawyer for your divorce.  The Maryland courts have published divorce forms on the Internet and there is a self-help desk at the Montgomery County, Maryland, Courthouse.  We have do-it-yourself divorce help on this website and we have published self-help divorce books.  However, divorce cases can get complicated quickly.  If your case involves child custody, alimony, real estate, retirement funds or other assets, we recommend you hire a lawyer.

Question 5.  Does the Mother Always Win Custody?

In the old days many judges followed the Tender Years Doctrine which presumed that mothers were the better care taker for young children.  Today, however, the standard is best interests of the children.  Many jurisdictions, like The District of Columbia presume that joint custody is in the best interests of the children.

Question 6.  Can a Husband Get Alimony?

Today, there are many cases where the wife makes more money than the husband.  In those cases, husbands are entitled to the same rights as wives including the right seek alimony.

Question 7.  How Much Is All This Going to Cost?

In most cases of a long marriage, the judges in Maryland, Virginia and DC will divide marital assets equally, but they are not required to.  If you make a lot more than your spouse, or your spouse is ill or requires some training to get back in the workforce, you will probably have to pay alimony.  The judge decides the duration and amount.   Once custody and alimony are determined, you can use online calculators to determine child support.  You may have to pay all or a portion of your spouse’s attorney fees as well as your own.

 *  *  * 

The thin man sighed and said, “Thank you.  It’s not what I wanted to hear but I feel better knowing than not knowing.  I want you to be my lawyer.  What’s the first step?”

“Sign my retainer agreement and pay my retainer,” I replied as I pushed the document across the desk and held out my Mont Blanc fountain pen.  “I’ll start working on your case immediately.

 

/by James J. Gross

MD Appeals Court Overrules Discovery Sanctions in Custody Case

The father filed to modify custody of two children.  He sent interrogatories and document requests to the mother under the Discovery Rules of the Court.

Discovery Rules

Discovery is a process in which you can ask questions and request documents from the other side. The purpose of discovery is to avoid surprises at trial and foster settlement. If you fail to answer discovery, the court can order sanctions.

Sanctions are penalties. For example, the court can order you to pay the other party’s attorney fees, order a certain issue as decided, or prevent you from offering evidence at trial.

The mother claimed she did not answer many of the father’s requests because they were not relevant. She also said the father already had many of the documents from prior litigation in the case.

Sanctions

The father asked the court to order sanctions against the mother for failing to adequately answer his discovery requests. The trial court agreed with the father and ordered sanctions against the mother. As a result, the court ruled that she would not be allowed testify at trial about certain issues. The court also ordered that she could not introduce any documents at trial that she had failed to produce in discovery.

See anything wrong with this? “The rules are on this side of the library and the exceptions are on the other side.” – Law School Librarian.

Exception for Custody Cases

In A.A. vs. Ab.D, 246 Md. 418, 228 A.3d 1210 (2020), the Maryland Court of Special Appeals said the best interests of the children overrides the discovery rules. The trial court could not decide a custody case without considering all the evidence available.

It was error to prohibit evidence from the mother even if she did violate the discovery rules. Consequently, the case was reversed and remanded for a new trial in which the mother will be allowed to testify fully and offer the prohibited documents into evidence.

/by James J. Gross

Making a Child Support Arrearage Disappear

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Making a Child Support Arrearage Disappear

Is your child support in arrears? When a parent doesn’t pay court-ordered child support the amount due adds up every month. This is called a child support arrearage.

Sometimes you would like to make the arrearage go away. For example, if you reconciles or child custody changes from one parent to the other, you may think that the child support arrearage should be resolved.

In Harvey v. Marshall, 158 Md. App. 355 ((2004), a father asked the Bureau of Child Support Enforcement (now the Office of Child Support Enforcement or “OCSE”) to extinguish his arrearage when he gained custody of the children.  OCSE said no and the trial court agreed on the basis of Family Law Section 12-104 of the Maryland Code which provides “The court may not retroactively modify a child support award prior to the date of the filing of the motion for modification.”

Family Law Section 10-112 of the Maryland Code lays out circumstances where OCSE may abate or settle child support arrearages for less than the full amount due.  There is no such statutory exception for private parties.  In fact, several cases say parents may not waive or bargain away a child’s right to receive support. See, e.g., Corapcioglu v. Roosevelt, 170 Md.App. 572, 606, 907 A.2d 885 (2006).

Theoretically, a child support arrearage can only disappear when OCSE abates it under Section 10-112.  As a practical matter, we have seen them disappear, perhaps erroneously, in cases with only private parties, too.

 

 

/by James J. Gross

Ask the Divorce Lawyer

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Ask the divorce lawyer

In this post, divorce lawyers from Thyden Gross and Callahan answer your family law questions.

The Dispute

Q: The children didn’t have school today (Friday).  My ex says I have to pick them up at her house.  I say that she has to drop them off to me. Who’s right?

Divorce Lawyer Answer:  First let’s look at the divorce order or separation agreement if you have one.

What the Agreement Says

Q:  Our separation agreement says:  “The father shall have the children on Wednesdays and Fridays from pickup at daycare/school/camp (hereinafter referred to as “school”) or from 8:30 am for any child not attending school that day.”

Divorce Lawyer Answer:  The agreement is not clear. The drafter tried to cram too many thoughts into that one run-on sentence.  It would have been better if the sentence ended with the parenthetical.

The next sentence would read:  “The father will pick up the children from mother’s home at 8:30 am on days when they are not in school.”  Or the mother will drop them off at the father’s house.  What have you been doing so far?

Past Conduct

Q:  On the mornings that I have the kids, but it is my ex’s day, if the kids are sick, I will drop them off at my ex’s.  So on her mornings, when it is my day, she should do the same.

The issue with Fridays is that every two weeks, there is no school on Friday. Teacher development day or something. So I have it worked out with my boss, that I work from home every other Friday so I can watch the kids.  This way, it is good for both of us, I don’t lose wages, and my ex also gets to go to work and not lose wages either.

I will also not pay her lost wages claims. I told her that I will not pick them up today and she’s causing her own wage loss.  I want her to pay for my legal fees as well.

The Solution

Divorce Lawyer Answer:  I agree that you should not have to pay her for lost wages.  And I agree that both of you win and it is therefore best for the children if she drops them off on Fridays.

However, the agreement doesn’t say that, so in the event of a dispute, you either have to reach a mutual agreement or go to mediation or court.  The American Rule applies to legal fees – each pays their own.

/by James J. Gross

Mother Recovers $150,000 in Child Support 50 Years After Divorce

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You may be able recover past due child support payments some day.

You may be able recover past due child support payments some day. Consider this case.

Toni Anderson of California divorced Donald Lenhart in the early 70s.  Anderson had custody of their 3-year-old daughter, Lane Lenhart. Donald was ordered to pay $160 a month in child support.

“He made the first payment,” Toni said. “I was so excited, I will never forget. I deposited in my account and it bounced.”

Donald moved to Canada and paid nothing for the next 49 years.

“I struggled a lot,” Toni said. “I lived from paycheck to paycheck and I had to take a couple jobs. It was a detriment to my daughter because I really wasn’t there for her.”

Missed Child Support Payments Impacts the Child

Her daughter, now 52 years old, reflects on the negative impact of the past due child support payments.

She said, “It was a challenge for me because mom was always working, always had to support us so she was never around. That was hard.”

Toni discovered that Donald had moved back to the US and was living in Oregon. He owned a house and a boat.

She located her old court papers. She notified Donald that he owed her $153,090 in back child support, interest and attorney fees. Donald has agreed to pay.

Statute of Limitations for Child Support

There is no statute of limitations for child support in California. The Maryland statute of limitations is 3 years to bring a contempt action.  If there is a written agreement under seal to pay child support, you have 12 years from the date the payment is due to sue.  You can also ask the court for a judgment for back child support.  The judgment lasts for twelve years and it s renewable.  It also accrues interest at 10% per year.

 

/by James J. Gross

When a Wall Is Not a Wall

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In a divorce, what you call something can make all the difference in the world. It’s like the wall being discussed by the President. It turns out that the wall may not be a wall after all.

Our President says he will build a wall between Mexico and the U.S., or a fence or metal slats, or a barrier.  Maybe he just means a better security system. Maybe it’s just a symbol or metaphor for an anti-immigration philosophy.  Maybe it’s an imaginary wall.

The President is following the advice of Lewis Carol’s Humpty Dumpty.  “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

It reminds me of the Mark Twain story where Tom Sawyer and Huck Finn were digging a tunnel under a cabin wall to get inside.  Huck wanted to use the shovel that was leaning against the cabin but Tom insisted they use his Bowie knife like the Indians did.

After much digging and little progress, Tom turned to Huck and asked him to hand him the other Bowie knife.

“What other Bowie knife?” Huck asked.

“The one leaning up against the cabin,” Tom replied.

Words make all the difference in a divorce, too. Visitation is more palatable if it is called access or time-sharing or parenting time.  Alimony may be more agreeable if it is called transition payments.

 

 

/by James J. Gross

Four Wrong Ways to Respond to a Divorce Settlement Offer

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Wrong Ways to Respond to a Divorce Settlement Offer

Settling your divorce case out of court is almost always better than a divorce trial.  Knowing how to respond to a divorce settlement offer is important.

Many people don’t know how to use principled negotiation techniques to reach a divorce settlement. Here are some examples of the wrong way to respond to an offer:

Give an Ultimatum.

I received a response to a divorce settlement offer last week that was dead on arrival.  It said its terms were “non-negotiable”.  I have never seen that work.  Instead it closes down the settlement discussions.  The same can be said for deadlines pulling the offer, like “You have one week to say yes to this counteroffer or it is revoked forever.”  A lawyer I know expressed a better attitude when he said, “Everything I’ve got is negotiable.”

Respond Indirectly.

If you receive an offer that numbers the issues, like (1) child custody, (2) child support, and so on, don’t start your response by telling me that your spouse won’t agree to a visitation schedule. Respond in the same order, using the same numbers, and propose a visitation schedule that you want.  Save the blame for court.

Throw Out Everything.

I have received more than one letter from opposing counsel that my client‘s offer is ridiculous or unreasonable or unacceptable.   What am I supposed to do with that?  It would be more helpful for them to say which items are unacceptable and propose a counteroffer.

Go Backwards.

The purpose of negotiation to is reduce difference between offer and counteroffer until you reach a settlement.  If you are increasing the difference, you are not going anywhere.  Once you have offered alimony of $2,000 a year, it will be impossible to get your spouse to accept $1,000 a month in the next round of negotiations.

The right way to respond to an offer of settlement is through principled negotiations.  That means you respond specifically and directly only to the items in dispute, state your objections clearly, and propose compromises.

/by James J. Gross

Can She Change the Child Custody Agreement?

Divorce lawyer Kline liked to be in his office early in the morning before the phones started ringing, clients started filling the waiting room, and the other lawyers started asking him questions.

He turned on the Nespresso machine, poured some flavored creamer into his coffee mug, and punched up the next email that looked interesting. This one was from a father whom Kline had represented in a divorce. The couple had a son together and their child custody battle was a bitter one.

The father was 15 minutes late to pick up the child and the mother had refused to allow the visitation.

“Can she just make up rules like that and change the custody agreement whenever she feels like it?” the father asked.

Kline sipped his hot coffee, watched the creamer swirl in it, and then pecked out this reply on his computer:

“Neither one of you can change the agreement without the consent of the other or a court order. However, there is an implied provision of good faith and fair dealing in every agreement, which means: (a) both of you should be willing to make some reasonable accommodation in scheduling the calls; and (b) both of you should strive to be on time for pickups and dropoffs.”

Kline hit the send button, took another sip of coffee, and scrolled down, searching for another problem in need of a solution.

/by James J. Gross