Child Custody

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].”

When should a parent be able to get a custody trial postponed?

By Morgan P. Appel

A recent unreported* decision of Maryland’s intermediate appellate court considered an appeal by a parent whose request to postpone a child custody trial was denied.

In general, a trial court has discretion to continue or postpone hearings ‒ and to refuse to do so. The Court of Special Appeals can reverse the trial court’s decision if there was an abuse of discretion or, in cases of exceptional circumstances, reversible error.

In Barriga v. Simich, Mother filed a complaint for sole legal custody and physical custody against Father. At the time, Father was living in Peru and was served with the papers in Peru. Father filed a counter-complaint against Mother for joint legal custody and visitation.

A custody hearing was scheduled for September 10, 2018. At Mother’s request, the Court moved the custody hearing to July 30, 2018. On its own, the Court then rescheduled the custody hearing for August 1, 2018.

Father filed a motion to postpone the July 30 hearing, asserting that he lived in Peru, received notice of the hearing on July 20, and was unable to attend the hearing due to the short notice and inability to miss work to travel to the United States. Father stated that he could travel to the United States the second week of December.

The Court wrote a note on top of Father’s motion, stating that the motion was moot because the case had been reset to August 1. The custody hearing was held on August 1, and Father was not present for the hearing. The Magistrate awarded Mother sole physical custody, sole legal custody, and child support. Father appealed. Father argued that the trial court failed to consider his request for a postponement.

Maryland courts have previously recognized cases of exceptional circumstances. Exceptional circumstances have included: 1. the Court holding a hearing when a parent is not present, without asking why the parent was absent, and without giving any consideration to whether the missing parent’s testimony would be competent or material; and 2. the Court holding a hearing when no prejudice to the other party was shown, no objection by the other party was made, and there was no urgency in holding the hearing.

Here, the Court of Special Appeals held that exceptional circumstances existed and reversed the trial court’s decision. The Court of Special Appeals found that the trial court failed to consider Father’s motion and gave no explanation for denying Father’s motion, despite Father living in Peru and not being able to travel until mid-December. There was also no urgency requiring that the custody hearing be held immediately.

* An “unreported” opinion by Maryland’s intermediate appellate court is published on the Court’s website, but may not be cited in any paper, brief, motion, or other document filed in any Maryland court, as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104. However, unreported opinions do offer insight into issues addressed by that court.

Even if you live in Maryland, your custody case may not be decided in Maryland!

By Morgan P. Appel

A recent unreported* decision of Maryland’s intermediate appellate court shows that, although you live in Maryland, your custody case may not be decided in Maryland even if a Maryland court has the right to make the decision.

In Brooks v. Brooks, at the time of their child’s birth, the family was living in Maryland. The family later moved to Texas and, after Mom got a protective order against Dad, Mom and the child moved to California.

Dad filed in Maryland for custody. Mom asked the Court to dismiss Dad’s request for custody, which was denied by one judge. On review, another judge held a jurisdiction hearing. Dad was present at the hearing in Rockville, Maryland, but Mom was present in a Los Angeles County courtroom before a judge there. The two judges discussed the case both on and off the record.

The case turned on the judges’ interpretation of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a law enacted by every state and the District of Columbia. Under Maryland’s UCCJEA, a Maryland court only has jurisdiction to hear a custody case if:

(1) Maryland is the home state of the child, or (2) Maryland was the home state of the child within 6 months before the start of the case, and the child no longer lives in Maryland, but at least one parent still does live in Maryland. The “home state” of a child is where the child has lived more than half of the time during the last 12 months. Under this standard, Maryland could have decided the Brooks case.

However, Maryland may decline to exercise jurisdiction at any time if the court determines that Maryland is an inconvenient forumand another state would be a more appropriate forum. In determining whether Maryland is an inconvenient forum, the court considers 8 factors:

(i) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.

(ii) The length of time the child has resided outside this State.

(iii) The distance between the court in this State and the court in the state that would assume jurisdiction.

(iv) The relative financial circumstances of the parties.

(v) Any agreement of the parties as to which state should assume jurisdiction.

(vi) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.

(vii) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.

(viii) The familiarity of the court of each state with the facts and issues in the pending litigation.

In Brooks, the Maryland court decided that Maryland is an inconvenient forum, and gave up jurisdiction. The judge zeroed in on 3 factors: (1) the child had been living outside Maryland for more than a year when the decision was made, (2) the child is 2 years old and will not testify, and (3) the people in California with whom she lives and who provide care to her are critical in determining her best interests.

Dad appealed. The Court of Special Appeals affirmed the trial court’s decision and found that Maryland was an inconvenient forum. The Court of Special Appeals determined that the trial court properly applied the factors to the facts of this case:

(i) There was a domestic violence altercation between the parties which led Mom and the child to move to California.

(ii) At the time of the hearing, the minor child had resided outside of Maryland for almost an entire year.

(iii) The distance between California and Maryland is 2,620 miles.

(iv) Both parties were gainfully employed and Mom was not in a superior financial position over Dad.

(v) There was no agreement between the parties on which state should assume jurisdiction.

(vi) Mom’s mother (the child’s grandmother), her pediatrician, maternal extended family, play dates, church/bible school, and swimming classes were all in California.

(vii) Both jurisdictions could decide the issue expeditiously.

(viii) Mom never submitted to Maryland’s jurisdiction because she never filed an answer in Maryland, but Dad submitted to California’s jurisdiction when he filed an answer in California.

* An unreported opinion by Maryland’s intermediate appellate court is published on the Court’s website, but may not be cited in any paper, brief, motion, or other document filed in any Maryland court, as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104. However, unreported opinions do offer insight into issues addressed by that court.

Maryland extends standard for stepparents, grandparents and others to seek custody or visitation

On August 30, 2018, the Maryland Court of Special Appeals ruled that the status of de facto parent – sometimes called ‘psychological parent’ – which was recognized by the Court of Appeals in Conover v. Conover, 450 Md. 51 (2016), is not limited to same sex couples. A de facto parent is a non-related adult who claims custody or visitation rights based upon the party’s special relationship in fact with a non-biological, non-adopted child.

In Kpetigo v. Kpetigo, the Maryland Court of Special Appeals approved a ruling by the Circuit Court for Montgomery County, Maryland that a stepmother qualified as a de facto parent and was, therefore, permitted to have visitation rights with her stepson. De facto parent status is important, because, unlike anyone other than a biological or adoptive parent, when seeking custody or visitation of a child, a de facto parent does not have to prove that another parent is either unfit or that exceptional circumstances exist in order to overcome the presumption that it is in the best interest of a child to be in the custody of a parent or to allow the parent to decide who can visit the child.

Generally, grandparents, stepparents, and others do not stand on equal footing with biological or adoptive parents, because fit parents have a constitutional right to raise their own children. If a third party files a claim for custody or visitation, the third party must first prove that the parent is unfit or that exceptional circumstances exist before a court ever decides whether custody or visitation is in the best interest of the child. Unlike other third parties, a de facto parent stands on equal footing with a parent and does not have to overcome the presumption. Instead, the de facto parent merely has to prove that it is the child’s best interest for the de facto parent to have custody or visitation of the child.

In Conover v. Conover, the Maryland Court of Appeals recognized de facto parenthood status. The Court approved the following four-part test to establish de facto parenthood: (1) that the biological or adoptive parent consented to, and fostered, the formation and establishment of a parent-like relationship between the child and the de facto parent; (2) that the de facto parent and the child lived together in the same household; (3) that the de facto parent “assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation;” and (4) that the de facto parent “has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.”

In Kpetigo v. Kpetigo, the Maryland Court of Special Appeals ruled that the trial court properly applied the four-part test established in Conover. The stepmother lived with the child from the time he was three years old until the time he was eleven. During that time, she took care of all of his needs. She bathed him, changed him, and put him to bed at night. She took the child to and from school, doctor and dental appointments, play dates, and extracurricular activities. She cooked his meals and packed his lunches, went to parent-teacher conferences, and arranged for his daycare, babysitters and camps. She helped to select his school. She also paid for the child’s camps and other things. She treated the child the same way that she treated her biological child with Mr. Kpetigo. When the child was young, he clung to his stepmother and would not go to anyone else. The child went on vacation with the stepmother’s family and referred to her family members as aunt or uncle. The Court of Special Appeals stated that once the stepmother proved that she was a de facto parent, the trial court properly found that it was in the child’s best interest to have visitation with his stepmother.