Articles Posted in Case Summaries

“Res Judicata” precludes parties from re-litigating any suit that is based on the same (earlier) cause of action. This means that parties may not bring the same claim, based on the same facts, time and time again. While the principle of res judicata applies to child custody cases, courts may entertain a custody issue, involving the same child or children, if the parent is seeking the modification of a custody arrangement due to a change in circumstances since the previous court order. The outcome of any child custody case will have a tremendous impact on the family going forward – financially, emotionally, and logistically. To sufficiently protect your rights, you are encouraged to contact an experienced Maryland family law attorney as early in the process as possible.

No two child custody cases are alike. Parents may dispute any number of issues, including physical and legal custody, as well as visitation and child support. In fact, a couple in a recent custody case argued over the child’s surname (among other things). Here, the parents were never married but had a son together in 2009. The mother failed to place the father’s name on the birth certificate and did not give the child the father’s last name. The father argued that the mother did not tell him when their son was born.

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A spouse who seeks to initiate a divorce proceeding must properly serve the other party with notice in accordance with local state law. It is important to understand the methods of service that are deemed acceptable in your jurisdiction. Otherwise, you may not be entitled to the relief sought. Most states have a system of courts, each with the authority to hear and decide certain types of disputes. In Maryland, it is the circuit court that handles family law cases, such as divorce and child custody and support matters. Keep in mind that the rules for service of process vary depending on whether you are filing a case in a circuit court versus a district court (which handles other kinds of matters). If you are considering filing for divorce in Maryland, it is important that you contact an experienced family law attorney as early in the proceedings as possible.

Service of process has been defined as the way a defendant receives court papers and notice about a court case. There are a few legally acceptable and effective ways to serve one’s spouse with divorce papers. These methods include:   1) by certified mail, restricted delivery (requiring the defendant to sign for the papers), 2) through the use of a sheriff or constable (for a fee), and 3) by private process (which may be a family member, friend, or a private process server). In many states, including Maryland, if a party has difficulty locating the person to be served, he or she may file a motion with the court asking for permission to find another acceptable way to serve the documents.

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Divorce is difficult. Couples seeking to dissolve their marriage will likely face some challenging and potentially divisive issues, such as child custody and support, alimony, and the division of marital property. Ideally, the parties will set aside their differences to address these important matters in an effort to move forward in their separate lives. Fortunately, Maryland family law governs many aspects of the process, affording the parties somewhat of a blueprint of what to expect as they proceed through their case. But how these laws apply to the unique circumstances of any one family law case is not easy to predict. If you are considering divorce, it is important to contact an experienced family law attorney who can assess your case and provide you with a well-crafted strategy designed to achieve the best settlement for your situation.

Maryland courts take very seriously any issue related to child custody and support. In a recent family law case, the father sought to modify child support in accordance with §12-104 of the state code. Here, the parties were married in 1995 and had two children. In 2004, the couple entered into an agreement that was incorporated into the Judgment of Absolute Divorce. The agreement set the father’s monthly child support payments at $2,199, based on the parties’ separate income. It also provided that the amount should be recalculated every two years thereafter. Apparently, the father failed to disclose that his income increased dramatically over the years. In 2011, the court ordered the father to pay the mother $13,263 per month in child support, as well as arrears and other reimbursements. The father did not appeal the order.

But in 2012, the father filed a complaint seeking to modify child support, arguing that there had been a material change in circumstances because his income decreased by 25%. The dispute concerns the treatment of the father’s receipt in 2012 of $396,164.24 deferred compensation for child support purposes. According to the court, if it were not considered income, the father would be entitled to a modification of child support. If it is included in income, he would not. The court denied his request, concluding that the father failed to bring sufficient proof from which the court could determine what portion of the amount was a gain on the original deferred income. The father appealed, arguing that he met his burden of proving that he sustained a 25% decrease in income. He specifically argued that his deferred income, which was attributed to a parent in the years it was earned for the purpose of calculating child support, should not be counted a second time.

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By its very nature, divorce divides a couple. Throughout the proceedings, spouses are expected to address and resolve many emotionally charged issues, such as child custody, visitation, division of property, spousal support, and many other significant matters. While many divorce cases are fraught with contentious conduct on behalf of one or both spouses, there are ways to approach a case with an eye toward moving the process along efficiently and amicably, while protecting one’s interests. One of the best ways to accomplish this goal is to consult with an experienced Maryland family law attorney, whose primary purpose is to resolve your divorce case as smoothly as possible, while aggressively protecting your interests.

In a recent case, described by the court as “particularly acrimonious,” the father attempted to modify an existing child custody order and objected to the “best interest attorney” or “BIA” whom the court appointed to represent his children in the proceeding. Here, the parties first separated and then ultimately divorced in February 2012. The divorce judgment incorporated prior written agreements, including a “parenting agreement” that granted the mother sole legal and primary physical custody of the children. The father was granted visitation rights. With respect to the children and their interaction with one another, the court pointed out that before and immediately after the divorce neither party behaved “admirably.” The husband claimed that the wife obstructed his visitation rights.

In July 2012, the husband sought a modification of the custody order, requesting sole custody of the children. He also began to withhold his alimony and child support payments and instead to apply them to the mortgage payments on the family residence. The wife sought to hold him in contempt for redirecting the payments and further asked the court to appoint a BIA to represent their children. The state of Maryland provides guidelines for court-appointed lawyers who represent children in child custody matters. Ultimately, the BIA recommended that the father’s custody petition be dismissed. The father sought to disqualify the children’s BIA and then changed his custody request, asking instead for sole legal custody while his wife retains physical custody. Continue reading

In a recent case, a woman who had married in 1995 and had two sons filed for divorce in 2009.  The husband was a physical education teacher. The wife later claimed the husband spent most of his time with somebody she thought was his girlfriend. She testified she was the daily caretaker for their kids. She worked as a manager at a used goods store and couldn’t afford to move out of the home and support he kids solely on her income.

The wife later claimed the marriage was tumultuous and that the husband had failed to pay the electric bill on one occasion and she and the kids had to live at home without electricity for a week. A similar incident happened with the water bill. She also argued she needed assistance from Social Services.

The wife also testified that about three years before her daughter from a prior relationship had told her that the husband sexually abused her while she was living in the family home. Because of that the wife had moved out of the couple’s bedroom where she stayed because she couldn’t afford to leave. Continue reading

If you have doubts about paternity, it is important to raise them from the start. A 2007 appeal illustrates the danger of waiting until years pass to contest or inquire into paternity in Maryland. In the case, the court considered a challenge to paternity with respect to a child born during a short marriage. The father Patrick Ashley and woman were married in 1980. Before their marriage, the woman had dated Steven Reid. When they got together Ashley asked the woman to take a pregnancy test. She told him that the pregnancy test indicated she wasn’t pregnant. They got married. Eight months later, the woman gave birth to a son.

Shortly after that, the couple separated. The court issued a divorce judgment awarding the woman sole custody of her son, visitation to the man, and requiring the man to pay child support.

Over a decade later, the father began to doubt he was the son’s father based on visual observation, and got DNA testing. It revealed he wasn’t the biological father. Instead, the biological father was Reid, the man that the mother had dated just before getting married. Ashley filed a lawsuit to discontinue child support and request paternity testing. He alleged that the mother was pregnant with the son before they married. He also alleged that in 2004, he told the mother about the DNA test results. The woman asked if they should tell the son and asked if he thought the son would hate her. Continue reading

Last year, this blog covered an interesting ruling by the Court of Special Appeals in which the court ruled an adult sibling found to be a Child In Need of Assistance (CINA) had no rights to visit with her younger siblings against their parents’ wishes. Recently, the Court of Appeals issued a new decision in this case.

As noted in other blog posts, parents of minor children have a fundamental right to make major decisions about the care, custody and control of their children. Usually third parties who want visitation against the parents’ wishes have to make a showing of exceptional circumstances such that the court failing to grant visitation would have a very detrimental effect on the children. The earlier ruling followed a Supreme Court ruling about a Washington statute where the Court ruled a statute that didn’t give parents’ beliefs a presumption of acting in the child’s best interests was unconstitutional.

In this case, an older sister born in 1993 wanted to visit her half-siblings over the objections of her father from whom she was estranged after being declared a CINA. She had been deemed a CINA after her father wouldn’t let her come back home to him, his new wife and their two small children. Her own mother had committed suicide and she had alleged her father was abusive. Continue reading

It’s extremely rare for someone to request alimony separate from divorce these days, but it is possible. In an interesting 2009 case that illustrates the importance of having a family lawyer represent you through your divorce, a couple were married and had two children. The husband filed for limited divorce after a one-year separation from his wife. Next the wife counter-claimed for absolute divorce on the basis of adultery and abandonment. The wife requested alimony.

Both of the spouses needed an interpreter and were not represented by counsel. By law, requests for divorce are granted only with a corroborating witness. Neither the husband nor the wife had brought one. The court wasn’t able to award a divorce or a limited divorce. Additionally neither spouse offered testimony to corroborate grounds for divorce. The trial judge nonetheless heard testimony on child support and alimony.

Although the divorce case collapsed, the judge awarded custody of the two kids to the wife and ordered the husband to pay child support of $764. The judge ordered the husband to pay $1500 to the wife every month as indefinite alimony. The court did not characterize the alimony or child support as pendente lite (temporary pending litigation). The case was closed with the requests for divorce denied. Continue reading

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.

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

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