Changes in Maryland Law

Maryland Law recently changed to allow a divorce if the parties:  a. mutually consent to divorce b. do not have any minor children in common c. execute, sign and submit to the court a written settlement agreement relating to alimony and the distribution of property d. do not file a pleading to set aside the settlement agreement prior to the divorce hearing e. appear before the court at the absolute divorce hearing.

This new law will greatly speed up the process of obtaining uncontested and simple divorces.

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Temporary Custody and Guardianship Issues

We are often asked by clients to draw up a document appointing a temporary guardian for their children. Unfortunately, the only document which is provided for under the Maryland Code is a document which appoints a standby guardian for six months in the event a  physician determines the parent is mentally incapacitated or physically debilitated. If you know you are going to need a temporary guardian, give us as much notice as possible so we can seek appointment of a temporary guardian or a temporary custodian.

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Spouse can be Responsible for Paying for Child Whom She is not Allowed to Visit With?

Conover v. Conover is a recently decided case by the Court of Special Appeals involving a lesbian couple. In that case, a spouse, who was neither the biological nor adoptive parent, of a child conceived (through artificial insemination), before the marriage, was determined to have no parental rights, including even visitation rights with the Child. This, despite the fact that the estranged couple were involved in a romantic relationship when the child was conceived and the child and the biological mother addressed the non-biological spouse as the father. The majority opinion stated “…a person seeking visitation who is not a biological or adoptive parent is a third party,” and “marriage in and of itself alone does not confer parental status to contest child access opposed by a biological parent.”

In a concurring opinion Judge Douglas Nazarian claimed that, under the current law, a spouse could potentially have no right to visit with the same child that he or she would be obligated to support financially.

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In For A Penny, In For A Pound

In the case of Friedetzky v. Hsia, a New York resident was alleged to be the father of a child in a custody action brought in Maryland, by the child’s mother. The New York resident requested a paternity test and engaged in financial discovery before admitting he was the child’s father. Thereafter, the mother amended her complaint and sought child support and, as a result, the father sought to dismiss the case. The Maryland Court of Special Appeals conceded that the father, as a non-resident, was entitled to limited immunity to participate in a child custody proceeding without submitting to personal jurisdiction for other matters. However, the court further held that the father’s actions in participating in discovery and requesting a paternity test constituted acts which personally availed the father of the jurisdiction of the Maryland Courts. As a result, the father could not dismiss the case.

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Children Wrongfully Removed From Peru May Remain in Maryland

When a parent flees to another country with a child to evade the other parent’s custody rights, the Hague Convention, generally requires the child’s immediate return so that custody rights can be determined in the child’s country of residence. However, the United States Court is not bound to order the return of the child if there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. In the recent case of Sabogal v. Velarde, the United States District Court for the District of Maryland entered an order that did not compel the immediate return of children to Peru despite the fact that it determined the children, at issue, were wrongfully removed in the first place. It made this determination based on the psychological abuse of the children and their mother by the father and an unresolved substance abuse problem of the father. The court did impose a complex set of conditions which would allow for the return of the children including a requirement that certain court rulings be reversed!

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Help For Abused, Neglected, or Abandoned Children Out of Immigration Status

A special immigrant juvenile (SIJ) is a child who is abused, neglected, or abandoned and who, with their family, illegally entered the United States. The law still requires that the immigrant child obtain an order from a state court making findings that the juvenile satisfies certain criteria.  Once a state court makes an SIJ order, a child may file with U.S. Citizenship & Immigration Services for SIJ-status which can lead to lawful permanent resident status. Under the recent case of Simbaina v. Bunay decided by the Maryland Court of Special Appeals, a divorce court must act on requests to sign SIJ orders and must sign these orders when appropriate.

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Under Divorce Agreement, Deferred Retirement Benefits Are the Same as Pension Benefits

The Maryland Court of Special Appeals has recently ruled that benefits in the deferred retirement option program are the same as pension benefits under divorce agreement, entitling the ex-wife to one-half of the marital share of ex-husband’s pension.

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Child Support Can be Awarded if Adult Dependent May be Able to Work in Future

In the case of Fitzzaland v. Zahn, an appeal of a Frederick Circuit Decision by Judge Niklas, the Maryland Court of Special Appeals ruled that child support was properly awarded for an adult autistic dependant child who may be able to work in the future. In Fitzzaland, the dependant at issue displayed vocational proficiency in a number of areas. In addition, the dependant had worked at a few jobs. However, the court determined that the child both was not presently earning  income and could not presently earn income.

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Yale Trained Lawyer Gets Alimony – Judge Rules That She is Not Required to Work

In the recent case of Reynolds v. Reynolds, the Maryland Court of Special Appeals denied a husband’s request to overturn a trial judge’s ruling that failed to credit $30,000 to $40,000 in income to his wife for purposes of calculating alimony. The wife in Reynolds was a trained lawyer that had attended Yale Law School and earned an annual income of $120,000 in the mid 90’s. She was not working at the time of the divorce. The wife claimed health problems and pointed out that it had been a long time since she worked.  She lived in a 1.5 million dollar home that had been purchased with her father and he father gave her $100,000 within two years of obtaining the divorce.

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Lengthy Visitation Within Six Months Does Not Impact Which State Is Granted Custody Jurisdiction

When parents live far apart, in different states, it is often critical which state’s court has jurisdiction over a disputed custody case. The state that has jurisdiction will have the dispute heard in the courts located in that state. Thus, the unlucky parent who lives in a state that does not have jurisdiction will likely have to travel (along with witnesses) to the state with jurisdiction for one or more hearings.  Jurisdiction is mechanically defined as the state in which the child lived for six consecutive months before a case is filed. According to a recent case from the Maryland Court of Special Appeals, even though a child went back to Maryland for a week of visitation during the six consecutive months, this did not stop Indiana from being designated as the state where the child lived and the state with jurisdiction.

 

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