There are lots of things that could affect your child custody case. They could involve procedural issues, evidentiary issues, or complexities related to the law. Or they could involve finding yourself sick and unable to travel on the morning of your custody hearing. For one father who was in that position, and whose trial court judge opted to conduct the custody hearing without the father or counsel representing him, he was able to get that trial court’s order overturned on appeal. Under those exceptional circumstances, the father was entitled to a continuance postponing his case, according to a Court of Special Appeals ruling.
Rebecca and Matthew separated in 2014 after 10 years of marriage. The parties agreed to a consent order giving primary custody to the mother and supervised visitation to the father. A separate consent order stated that the husband was to have no contact with the wife and was to submit to weekly drug tests.
The hearing on the divorce petition, along with child custody issues, was scheduled for March 2, 2016. On March 1, the husband dismissed his attorney. On the morning of March 2, the husband emailed the trial judge to inform him that he was in New York City, was sick, and could not attend court that day.
The trial judge proceeded with the hearing with only the wife and her lawyer present. The wife testified about the husband’s alleged drug abuse and addiction, including extensive and regular use of crack cocaine ever since she became pregnant with the couple’s child.
At the end of the hearing, the trial judge granted the divorce, gave the mother sole legal and physical custody of the child, awarded the father supervised visitation one day a week, and ordered the father to pay child support in the amount of $1,957 per month. The order also required the husband to pay more than $16,800 of the wife’s attorney fees. After the court entered the order, the father appealed. Given that the case involved the custody of a child, the court abused its discretion in not ordering a continuance such that he could participate, the father argued.
Normally, decisions regarding whether or not to order continuances in cases and postpone them are within the discretion of the trial judge. However, in certain exceptional circumstances, any refusal of a continuance is an abuse of discretion, meaning that it requires a reversal of the action.
This was an example of such an exceptional circumstance. Generally, a parent’s right to attend a hearing that involves their custody rights over a child should “be given precedence over minor inconvenience to lesser involved persons.” Doing otherwise essentially amounted to an improper impairment of the father’s fundamental rights. A “myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to due process an empty formality,” the court wrote.
Certainly, there are many things that a parent can do to enhance his or her position in a child custody case, including not firing one’s attorney on the eve of a court hearing while sick and situated five hours away from court. Generally, your strongest move for protecting your rights and your role in your child’s life is to retain capable counsel with whom you have a successful working relationship. Experienced Maryland child custody attorney Anthony A. Fatemi has been helping spouses and parents work through their legal issues and work to achieve beneficial results for many years. To find out how this office can assist you, contact us at 301-519-2801 or via our online form.
More blog posts:
Maryland Mother’s Claims of Misrepresentation Not Enough to Lead Court to Order Paternity Testing, Maryland Divorce Lawyer Blog, April 28, 2017
The Challenge of Overturning Child Custody Decisions on Appeal in Maryland, Maryland Divorce Lawyer Blog, March 29, 2017