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May 16: MHW presents “Breaking [Up] Bad: Custody Roles, Rules and Trends” for mental health professionals

This program, on May 16, 2021, from 9 am to 12:15 pm, is sponsored by the Association of Practicing Psychologists, Montgomery-Prince George’s Counties, Inc. For registration information, go to APPonline.org.

Child custody and visitation case law, rules and procedures in Maryland courts have seen some dramatic changes in recent years, and continue to evolve. Mental health care providers offer critical services ‒ both directly and indirectly ‒ in facilitating resolution of custody and visitation-related matters.

A new court rule, which went into effect on January 1, 2020, requires parents engaged in custody and visitation disputes to attempt to draft a comprehensive joint parenting plan. What is the process for developing the parenting plan? What must be covered under the plan? The new rule lists 16 factors parties may consider in developing the plan. Which of these factors might require or benefit from input by clinicians serving the parties and/or the child? What happens if the parties do not reach agreement?

Maryland courts have ordered parties to mediate custody and visitation-related matters for many years. When will the court appoint a mediator? How much mediation can the court order? What if the parties want more? Is mediation always confidential? What, if any, exceptions are there? Can a mediator be called to testify in court? What is the role of the mediator? Who is eligible to be a court-appointed mediator? Are there any special eligibility requirements for custody mediators? Can parties pick their own mediator?

Parents can also engage with a parent coordinator. What’s the difference between a parent coordinator and a mediator? When can the court appoint a parent coordinator? Is parent coordination confidential? What, if any, exceptions are there? What is the role of the parent coordinator? The Maryland parent coordinator rule lists 9 services a parent coordinator can provide. Which of these services might benefit from having a parent coordinator who is also a mental health care provider? Which of these services would you be reluctant to provide? What, if any, services are prohibited? Can a parent coordinator be called to testify in court? Who is eligible to be a court-appointed parent coordinator? Can parties pick their own parent coordinator?

Mental health care providers are appointed to conduct any of various assessments ‒ custody evaluations, home studies, mental health evaluations and “specific issue evaluations” ‒ under Maryland’s court rules. Who is qualified to perform each of these assessments? How do these qualifications compare to those for a mediator or parent coordinator? What are the mandatory and optional elements of a custody evaluation? How and when does a custody evaluator report? Who gets to see the assessor’s report? Can a custody evaluator or assessor be deposed or compelled to produce documents? Does a custody evaluator or assessor have to testify in court?

In July 2016, Maryland’s highest court recognized the rights of a ‘de facto’ parent (also called a psychological parent) to sue for custody and visitation. What are the four criteria which must be met to establish ‘de facto’ parent status? Which of these criteria might require or benefit from observations or input by mental health care practitioners serving the parties and/or the child? How many parents and ‘de facto’ parents can a child have? Can they all sue for custody and visitation?

Don’t miss this informative program! Register here: APPonline.org.

Can one parent sue the other parent – or the other parent’s relatives – for intentionally alienating or estranging a child?

What can one parent do when the other parent – or the other parent’s relatives – interfere with custody or visitation? One option is a contempt proceeding, in which a judge determines whether a court order has been violated, and if so, prescribes a purge provision to rectify the offense. Another option is a modification proceeding, in which a judge determines if there has been a material change in circumstances and, if so, what if any changes are needed to custody or visitation in the child’s best interests.

Many parents ask, however, whether they can sue the other parent – or the parent’s relatives – for intentionally alienating or estranging a child.

Recently, in Haines v. Vogel (September Term 2019, No. 1789, opinion filed April 7, 2021), Maryland’s intermediate appellate court, the Court of Special Appeals, did not absolutely prohibit such a claim, but the Court made crystal clear how rotten the offending parent’s conduct must be.

In this case, Father claimed that Mother deliberately and maliciously deprived him of custodial and/or visitation rights, and alienated the children from him so much that the children grew reluctant or outright refused to visit with him, and any relationship with them was now impossible.

Father claimed that Mother made inappropriate comments about him in front of the children; that Mother gave each child a cell phone so she could interfere with his visits; that Mother left Father and the parties’ 9-year old at a State Police Barracks when Father and child took too long to say goodbye; that Mother did not get the children to return Father’s calls; and that Mother engaged in other conduct which alienated the children from Father. Father blamed Mother for the children’s “warped view of him.” The trial court granted Mother’s motion to dismiss Father’s claim, and Father appealed.

The Court of Special Appeals looked back at Maryland law as it developed in three earlier cases from 1986, 2000, and 2008. In 1986, a father sued the live-in boyfriend and later husband of his child’s mother for belligerent and hostile conduct. In 2000, a father sued the domestic partner of his teenage daughter’s mother, who denied the father phone contact, made plans to interrupt the father’s visits, and directed the teenager to disregard the father’s authority. In both of these cases, the trial courts dismissed the complaints and the appeals courts affirmed because the conduct complained of was insufficiently egregious.

However, in 2008, an ex-husband sued his ex-wife and her mother for intentional interference with custody and visitation. The mother and grandmother deceived the father into thinking they were taking the couple’s two children on a trip to New York to visit relatives, but instead abducted the children to Egypt to live. The trial court refused to dismiss the father’s claim, and a jury awarded the father over $3 million in compensatory and punitive damages. On appeal, the Court of Appeals affirmed the decision based on the presence of two elements: abduction and harboring.

After reviewing these cases, in Haines v. Vogel, the Court of Special Appeals reiterated that, in Maryland, “the basis of a tort claim for interference with custody and visitation, is that the conduct must be: (1) intentional, (2) outrageous, and (3) involve the physical removal and harboring of the child from the parent.” The Court explained that “the requisite outrageous conduct cannot be merely words or acts that cause estrangement but conduct that results in the physical removal of the child from a parent.” Father’s claims that, by badmouthing him and doing other things, Mother distanced the children from Father emotionally, were insufficient; physical removal is what is required to show intentional interference with custody or visitation.

A civil contempt petition or a motion to modify custody or visitation, the Court concluded, “would allow the court, rather than a jury, to resolve what will undoubtedly be conflicting and emotion-laden testimony. … The court [rather than a jury] would be best positioned to resolve the central issue at the heart of this controversy: whether the court should use its equitable powers to address Mother’s alleged behaviors. Either petition would be a more prudent course than allowing one parent to sue the other for money damages to resolve these important issues.”

The Court of Special Appeals also affirmed the trial court’s dismissal of Father’s claim of intentional infliction of emotional distress, which requires “intolerable” and “outrageous” conduct. “Mother’s alleged conduct, while perhaps vexing and inappropriate, cannot be said to be extreme or outrageous, as has been defined [by other case law].”