Maryland Appellate Court Invites Attorney General to Explain Policy in Custody Case

photo_1605_20060524During a Maryland divorce, custody of the children can be one of the most heated topics. A custody case from last year illustrates how seriously Maryland takes these cases and the importance of working with an experienced attorney through the process.

A couple was married in Tennessee in 2001 and had two daughters. They separated in 2006 and the children alternated between which parent they lived with. The mother relocated to Jacksonville the next year. In 2008, the mother found out that one of the daughters had been sexually assaulted while in Florida by someone with whom the mother had a personal relationship.

The children went to live with their grandmother in Tennessee and came back to Florida later that year. Shortly thereafter, the mother’s cousin attacked her at her home and murdered someone nearby. The kids went back to Maryland to live with their father and his fiancé for the 2009-10 school year.

The hearing judge decided that the parties had actually agreed to allow the kids to live with the father indefinitely, though the mother insisted it was just for the year. The father filed for divorce and sought sole custody. The mother fabricated stories trying to take the children away from the father, including trying to obtain an order for emergency custody.

The father’s attorney requested temporary custody and an injunction against the mother against taking the children outside of Maryland. The mother also sought custody of her daughters. The kids were represented by a “best interests” attorney.

A hearing judge ordered an adoption and custody unit to evaluate the parents’ abilities. A 164 page report, full of sensitive information about the children and their family, was created by the custody unit. The report did not reach a conclusion about custody. The mother’s attorneys took notes on the report because they weren’t allowed a copy.

At the next hearing he argued that the report should not be considered unless a copy was provided to the attorneys. In his view, the rule prevented the mother’s attorney from consulting with experts for the merits hearing and also prevented him from coming up with a cross-examination of the report’s author or preparing the mother for her testimony.

The hearing judge would not give the mother’s attorney a copy of the report, explaining that access was restricted because the information in the reports was sensitive. He allowed them access in order to examine the witnesses, but wouldn’t let them study the report over lunch break.

This proved to be troublesome for purposes of keeping the hearing moving forward. Over the mother’s objection, the hearing judge allowed the report into evidence. At the end of the hearing the judge granted sole custody to the father, claiming the father was credible and that the mother had an “impaired” character.

The mother appealed to the Court of Special Appeals. Nobody else cross-appealed or even filed a responsive brief. She argued that failure to provide her attorney with a report violated her due process rights. A panel of the Court of Special Appeals found there was no violation of her due process rights because even though she had access to the report while preparing the appeal, she didn’t argue that the findings in the report were untrue.

The mother appealed to the Court of Appeals, using mostly the same argument. She claimed that the limited access prevented her attorney from sufficiently reviewing the “voluminous” report and its appendices. According to the lower court, the goal with keeping the access to the report limited was to prevent sensitive information from being republished.

The Court of Appeals noted that there was little other justification for the Circuit Court’s policy of limiting access. It explained that when sealing or limiting access, a trial judge needed to make findings about what interest was protected from inspection. Ultimately it concluded that the record needed to be supplemented. It invited the Attorney General to explain or defend the policy.

Custody issues can be some of the most difficult family law problems. An experienced Maryland family law attorney can help you determine what legal action to take next in the face of changing policies and laws. Contact our office via the online form for a legal consultation.

More Blogs:

Maryland Court Rules Parent Cannot Bargain Away Child Support Without Court Approval, Maryland Divorce Lawyer Blog, May 16, 2013

Maryland Court Decides Railroad Retirement Benefit Case, Maryland Divorce Lawyer Blog, May 11, 2013

 

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