Maryland Family Law provided by Mulinazzi Law Offices

13Dec/18

Custody Questions and Answers

Can grandparents petition for custody of a child temporarily living with them?

Question:  My wife has a 5-year-old son from a previous relationship. The child had been living with my wife’s parents prior to us getting married.  The closest thing he ever had to a male role model prior to me was my wife's grandfather. They developed a bond.  The child now lives with my wife and I.  Can the grandfather petition the Court for custody?

Answer:  Any third-party can petition the court for custody of a child. However, the court will consider the child’s best interest looking at the history of who has provided care for this child.

If the child’s parents are alive, great deference will be given to the parents having custody. Of course, if the parents agree to someone else having custody and they are willing to sign consents with the court, then it is very likely that the court will award that relief. On the other hand, if even one parent does not consent, then the petitioning parties will need to prove that the parents are either unfit or it is in the child’s best interest given all the circumstances that the child live with them.

If parents of a child reach an agreement, do we still have to go to Court?

Question:  My child’s mother and I are both listed on our daughter’s birth certificate.  She wants me to have full custody.  Since we agree do we still need to go to Court?

Answer:  Yes, you need a court order for custody. Without a court order you will not have the rights you want. If she is truly okay with you having custody, then you both can go to the courthouse and ask the Clerk for the proper paperwork and you can each file asking for a Consent Custody Order.

Still you should expect a Judge to ask you to appear for a brief hearing just to make sure that the agreement is valid and the custody arrangement is in the child's best interests. You should also expect the Judge to order the non-custodial parent to pay child support because you cannot waive that requirement -- that is where most agreements fall apart.

How long does the defendant have to file an Answer?

Question:  My paperwork was finalized last month. The defendant had to be served by county sheriff's department and I'm not sure if they have been served yet. It's been nearly one month.

Answer:  The defendant has 30 days after he is served if he lives in Maryland and 60 days if he lives out of state to file an Answer.

Do I need to maintain my wife’s health insurance until our divorce is finalized?

Question:  I am currently going through mediation for divorce in Maryland. Our trial dates are set for February 2019. My wife is currently on my health insurance. Do I have to sign my wife up for insurance for 2019 if she has it available to her through her employment?

Answer:  You should not remove her from your insurance while the divorce is pending. It is best to keep her on your insurance until after the divorce.  When you are divorced, there will be a change in family status, meaning that she will no longer be a family member and the insurance will automatically kick her off of the policy.  It’s best for the insurance company to do that and not you for many reasons.

When are you permitted to file for a modification of custody?

Question:  In January my son’s father took me back to court trying to obtain 50/50 custody and a modification of child support. I feel he only wanted 50/50 custody in order to decrease his child support. In the end, he did not get what he wanted. He is now attempting to re-file.

Answer:  The parent can file a motion to modify child custody at any point. However, the court requires a material and significant change of circumstances affecting the child’s best interest. Without that, they may dismiss his case if you file a motion to dismiss and you describe that there is no change and it is simply a matter of him wanting to re-litigate the case.

Can I move to another state with my child?

Question:  The father and I share legal custody. I have primary physical custody of my child. The father visits the child from 9:00 a.m. to 6:00 p.m. on Saturday and Sunday every other weekend. Our agreement is silent regarding relocating.

Answer:  You must inform the father as soon as possible. What you’re describing is a relocation case which is the most difficult type of case that comes before the Family Court. I recognize that you are the primary caregiver, but that does not give you an absolute right to move the child away from the other parent. Since you have a court order, if you cannot agree in writing, one of you will need to bring a case before the court asking to modify the custody and access order to be consistent with you moving. Obviously he cannot maintain the every other weekend schedule with the child if you move far away. Then the court will have to consider all the factors to determine whether or not it is in the child’s best interest to be relocated. If that happens, a new and different access schedule will be ordered which will inevitably include long periods of time over the school breaks and holidays.

What is the process for dismissing a protective order?

Question:  I was granted a protective order against my child’s father in Maryland. I do not feel threatened or scared for my life and would like to dismiss the order, how do I go about this?

Answer:  You can file a Line asking the Petition to be dismissed or just not show up for the final protective order hearing.

If the final protective order has already been granted and you need to file a petition to rescind a protective order, there will be a brief hearing with the Court asking if you feel safe.

Can child support arrears be discharged?

Question:  I am a non-custodial father and my son turned 18 in April of this year and my current child support has ended. I have an arrearage of about $20,000 and I am required to pay $200 per month for the arrearage. What are my options to settle this?

Answer:  Child support arrears are NOT dischargeable in bankruptcy and is not something that can be negotiated away. $200 per month may not be easy to pay but the Court could order you to pay it back a lot faster. Also, keep in mind that you are not paying interest on this amount.

What should I expect in an uncontested divorce hearing?

Question:  I have an uncontested divorce hearing in a little over a month. We are both representing ourselves. I would like to know what happens during these hearings and what will be the next step? We have children, but nothing is being established for child custody.

Answer:  The Court will ask you a prescribed set of questions that correspond with the statements on your Complaint for Divorce. You both must bring copies of your paystubs and other proof of income so the Court can calculate child support.

Can I request a DNA test for a child I believe to be mine?

Question:  I believe I'm the father of this child but the mother had another man sign the certificate. I've been in the child’s life, but now she's keeping him away from me. What can I do legally to prove I'm the father and get visitation?

Answer:  You could file a Petition for Custody with a separate Request for a Paternity Test in the Circuit Court of the County where the child lives. You should consult an attorney to make sure you add the proper information to your filings.

If the other man is her husband then that presents another layer of complication.

What should I do if my 14-year-old nephew and 12-year-old niece don't want to go back to their mom?

Question:  Their mom recently started a new relationship with a guy who is an alcoholic and stays in his mom's one-bedroom government housing apartment. Their mom stays there with him and doesn't have an actual place to live and the kids are currently with us. When they are with their mom, they are all in this one-bedroom apartment and sleep on air mattresses in the living room. When the boyfriend’s 5-year-old comes, the girls have to share an air mattress. She still has primary physical custody and gets child support through child support enforcement. She won't make any agreement due to her needing the child support to look for a place to live. Whenever custody issues get brought back to court their mom gets angry and starts talking to the kids nonstop and guilt tripping them. One night she had left the kids at her ex's house and she went and stayed with the new boyfriend and was late getting back so she could take the 14-year-old to his second day of high school.  He contacted me asking for a ride and she yelled at him for doing so. We just want to know the best way to go about things while protecting the kids.

Answer:  Will the Mom agree to share physical custody? Maybe she gets them every other Thursday to Sunday/Monday although I doubt the kids would want to do that.

If the Mom will not agree, then you can file a Complaint to Modify Custody and Intervene into the old case number. It sounds like you provide a healthy, secure place for them to stay and that is in the kids’ best interests.
You may want to ask the Court to assign a Best Interests Attorney for the children to help the Mom and the Court understand how the kids feel.

Can I file a Petition for Contempt in conjunction with my Counter-Complaint?

Question:  My ex is taking me back to court to try to get one of our two kids after 13 years. I answered her complaint and counterclaimed. We had a scheduling hearing and I was told I can amend my answer and counterclaim to include child support.

Answer:  The Contempt Petition is a separate filing. The Court will issue a Show Cause Order and a Writ of Summons and schedule a separate Contempt Hearing. At that hearing, the only issue before the Court will be whether or not she broke the terms of the Order, changing custody will not be discussed unless the Magistrate finds her contemptuous behavior so egregious that it warrants a change.

Meanwhile your Petition to Modify Custody will continue in its normal course.

Will I have to split my earnings with my husband following our divorce?

Question:   I own my own business and make most of the money in our household. I am married but it’s very rocky. In the event of a divorce, can my husband attempt to acquire the funds I work hard for? I do pay more bills than he does.

Answer:  If you own your own business your husband may seek to have the business valued in order to get a buyout of his marital equity. This is costly and it is difficult to prove the value of a business. Depending on the type of business you have, you may have what is called "personal goodwill" which is non-marital property and not subject to division by a Court.

Consult an experienced attorney on how best to move forward to protect your assets.

 

Can I get into trouble for contacting my husband when I have a protective order against him?

Question:  I have protective order on him since August 2018.  I'm going back home so that we can try to make our marriage work.  Will I get in trouble with the Court if I do this since I’m the one who has a protective order against him?

Answer:  You cannot get in trouble -- but he could get in trouble.
The Order is against him, not you. So, if he has contact with you, he is trusting you not to file charges against him. On the other hand, you are trusting him not to abuse you again. Your safety is most important so I hope that he got help to address his anger and hurt. If not, statistically speaking he will do it again and very soon: I hope that does not happen.

You could file a Motion to Rescind the Protective Order and if I was his attorney, I'd insist on that.

Can someone that has outstanding criminal warrants still collect child support?

Question:  My ex is on the run but I am still paying back child support for kids that are in my care.

Answer:  You owe "back" child support or arrears until they are paid off regardless of which parent has custody.

What should I do if my ex is violating the Court Order?

Question:  It's been a long road but my children's father has done everything possible to not return my children even though the court order states I have them Monday until Friday and he has every other weekend from Friday to Sunday. He keeps showing up at school and taking my soon.  What can I do?

Answer:  If your ex is breaking a court order, you should have other remedies such as Contempt and/or parent kidnapping. Maryland has a law that says that if you keep a child in contravention of a court's custody order for longer than 48 hours you can be prosecuted for parental kidnapping - but there has to be a court order.

If the Courts gave you custody, the Court will enforce its own Order and protect your child.

** Act immediately!
Can I deny court ordered visitation if I fear for my daughter’s safety?
Question:  Mother has a history of drug abuse, homelessness, absconding with the child, and cutting off all contact. Her behavior has escalated recently. She will not disclose her latest address. My child is having personality changes, nightmares, and accidents.  There is an existing custody order.  What can I do?

Answer:  You have the right to file for a protective order. However, I do not think that would be the best route. A ground for a protective order would be mental or physical injury to a child; neglect is not a ground for a protective order. Additionally, if you have a custody order most Courts prefer to address custody issues within the custody case rather than through a protective order case. You should consult with an attorney to discuss the option of filing for a modification of custody and requesting an emergency hearing. You also have the right to contact CPS if you fear that your child is being abused and/or neglected.

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