Maryland Family Law

Joint legal custody for Bristol Palin?

Today, Slate.com published an article about the child custody case between Bristol Palin and Levi Johnston.  Alaska has a statute which establishes a presumption of joint legal custody between parents.  This means that unless a parent is somehow unfit, both parents have the right to share in making decisions about the well-being of their child.  Maryland does not currently have any such presumption, therefore this is an issue that is litigated quite often.  Regardless, some judges do have a preference regarding legal custody, and you need to be aware of this as your case moves through the system.  Even though Maryland does not have any specific presumptions, it is not common for sole legal custody to be granted when both parents have the desire and capability to make decisions for their child. 

Thinking of representing yourself? It is more common than you might think. See this article from WTOP.com. http://www.wtop.com/?nid=104&pid=0&sid=1839514&page=2

Illegal tyrsts

Local outlet WTOP reported on the status of adultery law in New Hampshire, where the penalty has been decreased (from being forced to stand on the gallow to now a $1200.00 fine).  Adultery is still a crime in Maryland as well, with a $10 fine. 

Parental abduction

Last week, the New Jersey Family Law Blog posted about a mother who took her kids without their father's knowledge, sparking off a massive search ending in Maryland.  She was charged and pleaded guilty with interference of custody.  In this particular case, the parties were still married.  In Maryland, it is much more difficult for the aggrieved parent to get vindication.  Contempt is an option when a parent is denied time under a court order, however it is not a quick fix.  For example, if your ex will not open the door when you come by to pick up the kids during your holiday time, you will likely be stuck for the time being at least.  While the court can order "make up time," you will never get that holiday back.  The truth of the matter is that you cannot force the other parent to respect your rights and your relationship with your children.   

No legal marriages?

Yesterday, McClatchy.com reported on Texas's new constitutional amendment regarding marriage.  The purpose of the amendment was to preclude any domestic partnerships or gay marriage, however the second part of the amendment is written a bit broadly, provoking controversy over whether the amendment may actually ban ALL marriages.  I would argue that is an unlikely result should anyone bring a legal challenge.  It is a maxim in legal interpretation that if a statute is ambiguous, one would then look to the legislative history.  It is common for findings and goals be found in the records, so I think it unlikely that no marriages are authorized in Texas...but what an interesting legal morass that would be!

The power of text messages

The National Law Journal published an article last week about the impact of text messages on family law cases.  Such messages can provide evidence of an extramarital affair, or produce other damaging statements in divorce/custody/domestic violence cases.  I have also found it is common for separated parents to communicate with each other about their children via text messages.  The article provides a few specific examples of cases where text messages were central and valuable pieces of evidence.

Once you have received a potentially "useful" text message, now what do you do?  Contact your attorney right away...text messages are fleeting, and you need to be able to access and preserve them in a manner without altering them.  Even if you do not actually alter the message, it can be problematic if the message is copied in such a way that you had the opportunity to change the message.  Keep in mind that you cannot simply show the judge the message on your phone.  The judge is required to make a record of everything that he or she has considered in rendering a decision.  In some courthouses, you would not even be able to take your phone into the courthouse in fact.  Some thought and proper planning is essential.  

Free Lawyers for Everyone!

The Wall Street Journal law blog reported on a new law in California which provides a right to counsel in civil cases such as child custody cases.  My first thought of course was, how in the world would California of all places afford this given their woeful finances?  Next, I wondered which state would follow next.  Everyone well knows that an indigent (low-income) person who is arrested is entitled to a public defender representation.  Typically in civil cases, however, people of limited means are often without the funds to hire an attorney and there is a huge shortage of pro bono services and legal aid agencies to provide representation.  There are resources for people who meet qualifications, and you must act fast if you hope to find a pro bono attorney.  Do you think Maryland should provide attorneys to poor people for civil matters? If so, should there be a screening process for cases without merit?

Divorce for Profit?

Yesterday, Law.com reported on a federal district court case in Texas where the judge dismissed a claim by Continental Airlines that several of its pilots had engaged in "sham" divorces to allow them to access their pension plans early.  This decision was based on ERISA, the federal law which govern employee benefits.  The judge held that the pension plan must honor the domestic relations orders (DRO) and had no authority to determine the validity of the divorce.  While many would questions the ethics of anyone divorcing for financial gain, the article also mentions the problems which would arise if the plan administrators were allowed to question the underlying divorce.  This is probably a result that is correct in the law, but still feels somehow wrong.

Pro Bono Week

This week has been designated by the American Bar Association as Pro Bono Week, to encourage and recognize pro bono work in the community.  Maryland attorneys are required to annually report to the Court of Appeals the number of pro bono hours undertaken.  Like many other attorneys in Maryland, I donate my time to several excellent organizations, providing legal services to low income families.  For more information on pro bono representation or volunteering for pro bono programs, check out the Women's Law Center of Maryland, the Family Law Self-Help program or the Montgomery County Pro Bono Program. 

Update on paternity and DNA

The Maryland Court of Appeals has issued an opinion affirming the Court of Special Appeals decision in Kamp v. Dept of Human Services.  Maryland's highest court upheld that an individual seeking to "belatedly" challenge a paternity finding must show that a DNA test would be in the child's best interest.  Under these facts, the father knew that the child was not his, yet sought custody in a divorce proceeding and entered into an agreement regarding custody and child support.  Several years later, he sought to remove his child support obligation because the child was not his.  The trial court granted the order for the test, the Court of Special Appeals overruled and remanded the case, so now the case would be headed back to the trial court to determine if the test would be in the best interests of the child. 

What happens if a dad at the time of the divorce is now questioning the paternity of the child?  Here is my best guess:  same result is likely because it would mean possibly making a child born during the marriage illegitimate.