Shechtel and Associates, P.A.
Your Maryland Family Law Lawyers
With over twenty (20) years of experience, we at Shechtel and Associates, P.A., can provide you with professional representation if you are involved in a family law matter. We place a premium on personal service. When you retain Shechtel and Associates, P.A., you are not shuffled off to a paralegal, you deal directly with an attorney. We pride ourselves in taking the time to really get to know you, your family, and the issues involved in your case. We do this so we can fully understand the unique aspects of your particular situation to obtain results that will work for you. Remembering that “equity looks on that as done which ought to be done,” we will take whatever time is necessary to become fully vested with the information necessary to prosecute your case so what needs to be done gets done.
We firmly believe that the attorney-client relationship must be built upon dignity and mutual respect. When you hire us to help you, you will be able to take comfort in knowing that we are always on your side. We take a holistic approach to the practice of law. We take the time to talk with you to learn about the entirety of your needs. We are not monolithic. We do not look at just one aspect of your case. We look at many facets of your case so that we have a view of the big picture.
Our clients are frequently amazed how hard we work with you to fashion a resolution that is unique to your needs, your children’s needs, and one that best suits your particular life situation. We take the time first analyze different resolutions to the issues presented by your situation. Then we will meet with you to go over each possible solution or resolution to each issue presented by your situation and how that resolution may affect other areas of your life, your children’s lives, or those who may rely upon you.
We believe in open and honest communication at all times. We work hard keep you fully informed of all developments in your case, whether they be good, bad, or ugly. We will keep you apprised of various options available to you during the litigation process, the cost, and the possible consequences of doing, or not doing, those options.
For more than twenty years, whether you lived in: Anne Arundel County, Frederick County, Montgomery County, Prince George’s County, or Washington County, Shechtel and Associates, P.A., has been here fighting for you. We have represented clients come from all over the world, and just around the corner too. Whether you live in Annapolis, Columbia, Frederick, Gaithersburg, Germantown, Olney, Rockville, Hagerstown, or anywhere else in Maryland, we are just a phone call or email away.
We at Shechtel and Associates, P.A. will be the first to tell you that family law matters, whether it involve: your marriage, separation, divorce, child custody some other issue involving your children, adoption, domestic violence, contempt, or the guardianship of a loved one, are extremely difficult. There are seldom any winners in family law cases, and more often than not, everyone loses.
We work hard to minimize the damage that results when your family dissolves. We understand the effects that the dissolution of your family will have upon you, your children, and your extended family. We know how destructive, painful, and stressful your situation is upon you. Because of our experience and compassion for you, you should not be surprised or offended if we refer you to seek counseling or therapy. We do this in more cases than you would think.
Because we understand what you are experiencing, we are one of the leading law firms in the area in the recommendation of specially trained therapists and counselors to assist our clients so that they can deal with the stress of their situation, and to assist them to “move on” with their lives. Our holistic approach to family law is unique among family law attorneys. Our emphasis is upon you, and what is best for you.
We represent both you as the petitioner or respondent in cases arising out of domestic violence. We appear on your behalf at all hearings or trials related to a petition for a Peace Order or a domestic violence protective order, from the initial hearing (ex-parte) through final merits. If you have been charged with a criminal assault arising from a claim of domestic violence, we can appear on your behalf in criminal court if you want us to represent you. We also handle appeals of Peace Orders, Domestic Violence Protective Orders, and assault cases arising from a domestic violence petition.
Alternative Dispute Resolution
We work with all forms of alternative dispute resolution, mediation, and arbitration. We are not just family law litigators. We know how mediation works, how to make mediation work for you, and when mediation is a waste of your time and money. We are not afraid to try your case in court if mediation fails. We have a well-known and proven track record of getting results that work for our clients.
MEDIATION & ARBITRATION
Alternative Dispute Resolution
Many years ago, I was about to commence a custody hearing before a very wise Montgomery County Circuit Court Family Law Master. Just as the case was about to commence following his hearing a brief outline of the issues that were to come before the Court, the Master looked at both the mother and father. What he said next I will never forget.
He looked at the Mother and inquired:
“Madam, do you love your children?” She answered yes.
“Sir, do you love your children?” He answered yes.
The Master then said:
Well, I don’t love your children. I do not even know your children. I do not know you or you. So with you both knowing that I do not know either of you or your children, and knowing that I have never been to your home, why would you want me to decide what is best for you and your children?
The Master concluded by telling the parents that with the aid of their attorneys, they should go outside of the courtroom and fashion a parenting agreement that was best for them and their children. Fortunately, the talk worked, and the parties settled.
What is ADR?
ADR is an acronym for Alternative Dispute Resolution. ADR refers to the process known as “mediation.” The Association of Family and Conciliation Courts defines mediation as:
a cooperative problem solving process in which a neutral professional helps people in conflict clearly define the issues in dispute and to reach agreements that are in the best interests of their family. Mediators help participants resolve misunderstandings and communicate more clearly with each other by reducing hostile and competitive feelings.
At a mediation session, you and all of the other party(ies) involved in your case meet with an impartial person who is known as the mediator. The goal is that during a mediation session, the parties will attempt to reach a mutually acceptable settlement to some, most, or all of the issues involved in the lawsuit.
There are no formal court procedures, testimony is not taken, no rules of evidence, or anything that is deemed to be “litigious” at a mediation session. Careful pre-mediation preparation is involved and the Mediator will work hard to keep the issues organized and concise to facilitate a successful mediation outcome. Mediators have no authority to render a decision or force the parties to accept a settlement (in contrast to an Arbitrator who does issue a ruling). In many cases, the training and skills of the Mediator are paramount to the parties obtaining a final settlement of their case which would not otherwise be possible. Mediation differs from arbitration because the mediator, unlike an arbitrator, does not make a decision or force a party to accept a settlement.
When does mediation occur?
At any time before or during litigation. You and the opposing party (or parties) schedule to meet with a mediator. The scheduling of mediation may be before or after your case is filed. Mediation can occur on several occasions. There are no set rules. Oftentimes a case will settle after one of the party’s has had it paying attorney’s fees. Mediation can occur voluntarily, by Order of Court, or at the suggestion (urging) of the Court. In Maryland, mediation is mandatory in ) at a specific date and time or before some future date. Mediation may also occur at a mutually agreeable time for all of the parties and their attorneys.
Does mediation work?
In one word, YES. Accurate statistics are hard to come by. In one study, when the claimant was represented by an attorney the parties settled 56% of the time compared with 44% in those cases where the parties were “pro se” (self-represented) claimants. Another study from the Cobb County Georgia Superior Court noted that settlements via mediation ranged from over 70% in “separate maintenance” cases to just under 50% in cases involving child custody. Statistics for the Maryland Courts are hard to come by, however, in a Circuit Court for Baltimore study, in excess of 70% of attorney’s surveyed reported that ADR was helpful in resolving cases.
What types of cases can be resolved through mediation?
All kinds. We at Shechtel and Associates, P.A., have been involved in successful mediation sessions in cases that involve: juvenile cases, tort claims, real estate contract disputes, commission disputes, commercial and business disputes, construction issues, employee and employer cases, malpractice allegations, debtor and creditor cases, insurance coverage disputes, partnership dissolutions, domestic relations matters, workers’ compensation claims, IRS Tax matters, and criminal cases. Mediation also occurs in: products liability claims, maritime issues, securities-related disputes, education, environmental claims, and much more. In short, all cases can be resolved through mediation.
In mediation, it makes no difference whether liability is contested, if the case is in litigation or not yet filed, or whether the dispute involves: no money, a few dollars or millions of dollars. Mediation has proven effective in all situations involving all kinds of issues. The truth is: mediation works, and it can save you money, lots of money. Mediation can also save you aggravation, and the pain of having a Judge rule against you.
What are the benefits of mediation?
Short answer #1: Mediation saves money. Most party litigants do not realize that the for the typical family law case the average cost for just one day in court is $6,000.00. And in some cases, $6,000.00 per day is a bargain after paying for: expert witness fees, attorney’s preparation, exhibit preparation fees, transcripts, jury consultants (not in family cases), and coping charges. If a paralegal is present during your trial to keep track of exhibits and to assist your attorney, the cost is even more. At mediation, none of those costs are incurred. The Attorney does have to prepare for mediation, and in some instances is mandated to prepare a Mediation Summary for the Mediator, but that cost is substantially less than the costs to prepare for a trial.
Short Answer #2: Mediation allows the parties to control the outcome. With a trial, you have no control over what the Court will decree. Judges and Juries operate independently of the parties, and are frequently known to render verdicts that leave both parties either unhappy or wondering how they reached their decision. When the parties agree to mediate, they agree only to attend the mediation session and participate in a good faith in an effort to settle their differences. Only the parties may agree to the terms of settlement (which is normally reduced to a Consent Order). Consequently, the parties remain in full control over whether their case settles, and under what terms or conditions.
Short Answer #3: Mediation is quick. There is no waiting for a Court to become available. Settlement negotiations cut through all of the formal rules of court. In mediation the parties get to the heart of their dispute quickly and they become focused on what is important, and what is not, in their case.
Short Answer #4: Mediation is informal. Because there are no formal rules of court and also because mediation sessions are supposed to be confidential, the trained mediator is free to explore different settlement options without having to disclose a party’s final position. The trained Mediator knows what are the hot buttons vs. those that are not, and they can then move the parties towards a middle ground that is a workable solution. Mediation also allows the parties to involve multiple parties in negotiations at one time. During mediation, a mediator will work closely, and confidentially, with all parties to explore possible settlement scenarios that may ultimately result in a settlement package (also known as a global settlement).
Short Answer #5: You learn what is really at issue in your case. At mediation, the mediator will get to the heart of your case. The mediator will thereafter meet with you to improve your, and the opposing party’s understandings about what is really at issue. Mediation sessions are purposely designed to educate the parties about the legal and factual issues involved in their case. This also results in a secondary benefit in that litigants who are not familiar with the process of litigation are able to learn what is foreseeable if they were to allow their case to proceed to a merits trial.
Short Answer #6: The parties are able to preserve whatever relationship they had before entering into litigation. Mediation is particularly appropriate in situations where the disputing parties will be working together after the dispute is resolved. Some examples include construction projects, commercial leases, partnerships, business suppliers, and employment relationships. Mediation allows the parties to stay on the best terms possible by doing everything they can to settle their dispute as quickly and easily as possible.
Is mediation mandatory?
Well, yes and no. Absent a legitimate reason why parties should not mediate (such as in cases that involve domestic violence), all parties involved in family cases are expected to participate in several mediation sessions. Most typically, you will be requested (required) to attend mediation sessions with and without your attorney being present (assuming you have retained custody Counsel) to resolve issues involving the custody of your children. If your case involves divorce too, you will be requested (required) to attend at a minimum one mediation session with your attorney being present (assuming you have retained divorce Counsel). In addition to attending court ordered mediation, your attorney may encourage you to engage in voluntary mediation sessions too.
What is a Mediation Agreement?
In most courts, before mediation commences, the parties (and Counsel) must agree in writing to submit to mediation, that what is discussed during mediation cannot be used against a party at a future trial, and that the Mediator cannot be subpoenaed to testify (absent some very specific exceptions). The Montgomery County Circuit Court mandated Mediation Agreement provides:
The parties and attorneys whose signatures appear below agree that all proceedings at their mediated settlement conference and at any extension of such conference, including any statement made or document prepared by any party, attorney or other participant, are privileged and shall not be disclosed in any subsequent proceeding or document or construed for any purpose as an admission against interest. As used herein, the phrase “document prepared by any party, attorney or other participant” shall not be deemed to apply to any settlement agreement that may result from their mediated settlement conference; and this agreement shall not apply to any such settlement agreement. The parties agree not to subpoena the mediator or any documents prepared for mediation. In no event will a mediator voluntarily testify on behalf of a party.
No party shall be bound by anything said or done at the conference(s) unless and until a settlement agreement is reached and one of the following occurs: (1) such settlement agreement is reduced to a writing signed by all parties; or (2) the specific terms of such settlement agreement are entered into the record by an officer authorized by law to administer oaths (such as a court reporter) in the presence of and with the consent of all parties (or their authorized representatives); or (3) the specific terms of such settlement agreement are recorded by audio or video tape and each of the parties (or his/her authorized representative) audibly acknowledges on the audio or video tape that the terms are correct and that he/she consents to be bound by those terms.
If you participate in mediation in most Maryland counties, you will be required to sign this form or a similar form.
Are there different types of ADR?
Yes, there are several different types of ADR (e.g., negotiation, mediation, collaborative law, and arbitration). These processes are differing alternatives to having your case decided by a judge. Although most courts will maintain that the process of mediation is voluntary, in reality it is not. Parties are strongly encouraged to participate in ADR, and many judges will not allow your case to proceed to trial absent some minimal involvement/participation in ADR. All Maryland Courts offer ADR services at any time during the pendency of any civil or family case.
What happens if the Court Orders me to participate in ADR?
If you are ordered to ADR by the Court, you will be offered the opportunity to select a trained mediator from a list of court approved mediators. Mediators who have been approved by the court have agreed to charge a reduced hourly fee of $200.00 (a real bargain), which is shared equally between the parties. Court Ordered ADR sessions are scheduled in three (3) hour blocks of time and maybe held at the Circuit Court Library, or at a mediator’s office at the option of the parties.
Most Maryland Circuit Court’s use the services of retired Judges as Mediators. This is a great resource for the party litigants because for the bargain price of $200.00 per hour, they are able to have a retired judge take a look at the facts of their case and let them know why settlement is in their best interests.
Do I have to request ADR?
Not in all cases. Most times in family law cases, you will be mandated to participate in two forms of ADR. Your first ADR sessions (two) will be with a Family Services social worker (without your attorney being present). Family Services attempts to resolve issues of custody, access and support. Thereafter, if your case does not settle, you then move to ADR with a trained mediator.
In the Montgomery County Circuit Court, once Counsels agree on a mediator, an Order will be generated appointing the selected mediator (provided that the Mediator is on the court’s list of approved mediators). Counsels may also request that the Court appoint a Special Master will select a mediator with specialized training and experience to mediate cases that require specialized training, experience, or knowledge. Once an ADR Order is issued by the Court, Counsel and/or the pro se litigant(s) will receive a packet from the court that includes: (1) the Order for ADR, and (2) a confidential ADR statement form. Prior to the mediation session commencing, the parties and Counsel will be required to sign an Agreement to Mediate (see above).
What happens in ADR?
After everyone appears in the conference room reserved for mediation, they will be introduced or greeted by the Mediator. The Mediator will then verify that the mediation agreement has been signed by all parties, and if not, will pass around the mediation agreement for execution. Following execution of the mediation agreement, the mediator will explain to the litigants what mediation is, the process that is going to be followed, and whatever ground rules that the Mediator will require for the mediation session. The mediator will act as a guide to insure that everyone is able to communicate what they perceive to be the issues being litigated. It is up to the Mediator to insure that everyone has a chance to be heard. Generally, your attorney will speak for you so as to avoid the possibility of insulting or angry statements being made that could have a chilling effect upon the mediation process. After “opening statements”, the parties are generally separated into separate rooms so that the Mediator is free to discuss with the parties the issues one issue at a time in strict confidence. The Mediator will explore various solutions with the parties separately to assist them in reaching a possible resolution. Most trained mediators will develop their own settlement options while others offer suggestions that they believe would work to resolve a case. However, any final agreement is always up to the parties to accept. While a settlement is “ripe” the Mediator will reduce the settlement agreement to a written document that is signed by all parties. In many of Maryland’s Circuit Courts, if you reach a settlement during ADR, you will go before a Judge or Master who will have the settlement read (placed) onto the record, and you will be asked several questions (voir dire) to confirm that you are freely and voluntarily entering into the settlement agreement. Once on the record and confirmed, the settlement agreement ultimately will become an Order of Court that is not subject to appeal.
What happens if my case does not settle?
Nothing… and you proceed to trial in the normal course. Sometimes, if your case does not settle, the Mediator may attempt additional sessions to settle your case. The mediator may continue settlement discussions via telephone, or in some cases, a second mediation session is scheduled. Our experience with ADR is that more than ninety (90%) of all complex litigation cases (that includes family law) resolve through mediation even if the first mediation session did not result in a settlement.
Should I prepare for ADR?
Yes. Everyone should prepare for ADR. We at Shechtel and Associates, P.A., will work with you well in advance of your mediation session so that you are fully prepared to frame the issues to be resolved, have the facts (including necessary evidence) to provide to the mediator to counter what the opposing side may be trying to sell to the mediator. We also work with you to develop a set of goals that you want to achieve from your mediation session. We know that although mediation is far less expensive than a trial, it is nevertheless not cheap. At mediation, you have to pay for half of the Mediator’s fee, your attorney, your lost time from work, and the costs to prepare for your mediation session.
Although the below list is not complete, we suggest that you do the following in preparation for your mediation session:
a. At least two weeks in advance of mediation, send to your attorney what your position is with respect to the issues to be mediated. If you do not have a set list of issues to be mediated, establish a list of items, in order of priority, that you would like to have resolved at mediation.
b. Provide to your attorney a list of all documents that you believe should be put into a mediation packet for the mediator. If you have not already done so, provide your attorney with all of the documents on your list.
c. Ask to review with your attorney the Confidential ADR Statement that is to be provided to the mediator by your attorney.
d. Meet with your attorney just prior to the mediation session to finalize your mediation plan.
Is mediation different from arbitration and pre-trial settlement conferences?
Arbitration is litigation where the judge is replaced by an arbiter. An arbitration hearing involves the presentation of evidence to an arbitrator who upon the close of the proceedings will issue a legally binding decision. In our opinion, arbitration is nothing more than a substitute for a court trial, and are generally more time consuming and expensive than a court trial (you are required to pay for the arbitrator). We at Shechtel and Associates, P.A., generally advise clients not to sign agreements that have arbitration clauses and we can advise you why you should not do so.
As is noted above, Mediation is a litigation settlement process that provides for the party litigants to have an opportunity to work out an agreement to settle their differences through negotiations. In mediation, the parties never give up control of the outcome.
In a pre-trial settlement conference, the parties submit informal statements to the Court (Judge or Master) who then works to try and find a resolution (similar to a mediated settlement). Most Judges will inject their advice into the process. It is generally accepted that the Judge handling a pre-trial settlement conference is disqualified as the trial court judge because they have received confidential information about the parties respective positions relative to a settlement. In those cases where a pre-trial settlement conference Judge issues their advisory opinion about a case, there exists a risk that a party will disagree with the Judge’s opinion, and thereafter the party that deems themselves to be on the losing side of the Judge’s opinion may shut down, which results in the pre-trial settlement conference abruptly ending. Not that the “losing party” may be the “winner” who does not believe that the pre-trial settlement conference Judge is being too miserly, or the “loser” who believes that the pre-trial settlement conference Judge is too generous.
Is mediation different for family law cases?
The process of mediation is not different, but the issues are substantially different than most cases. In the typical divorce, there are many issues that involve your children. Then there those issues that involve marital property. Most courts separate out custody from property, so you may be required to engage in ADR to try and resolve the children and property issues on two (or more) separate occasions.
What the biggest difference is in separation and divorce cases are the emotional aspects of the case, and secondly the physical changes that will affect your family. When a couple separates, they will confront many issues, including: parenting plans for children, child support, division of marital (or joint) property, and other future financial arrangements. According to most psychologists, divorce is the number one cause of stress, with being involved in litigation a close second. Put together, you have the number one and two stress generators all rolled into one conflict.
As a result of the particularly high stress that comes along with divorce, the manner in which conflicts are explored and resolved greatly influences you and your family’s ability to adjust to the pressures of separation or divorce. Conflict resolution methods such as ADR bring about a productive airing of those differences that may otherwise have gone unsaid. ADR also leads to creative solutions to what may appear at first to be unresolvable, or overly complex. ADR provides an excellent opportunity to address the changing needs of family members.
Your involvement in ADR allows you to determine your future, as well as the future of your family. You are able to take control over your future by taking the decision making process away from an uncaring court system. Through the process of negotiation, you are not leaving the hard decisions involving your future to a judge or jury. In ADR, you are not a bystander but an involved party whose voice is heard.
Mediation in the family law setting.
Mediation is a way for family members to resolve their conflicts during and after a separation or divorce. Though ADR, it is possible for you to reach an agreement that addresses your interests and those of your family in a manner that you control the outcome. Though ADR you will be able to face the pain, anger, fear and hurt of your predicament. Mediators are trained neutral professionals. They are there to help you define the issues in your case, keep lines of communication open, and help you to reach a rational discussion on what is important to you so that an acceptable resolution can be had. Mediators do not make decisions for you. They help you make decisions that you believe are in your best interests along with the best interests for your family.
Mediation does not work in all cases. In the vast majority of cases however, mediation does work. You must be willing to work 100% to resolve your case or mediation will fail. Just as you must be willing to work 100% to resolve your case, so must the other party or parties. With our help, we can and will assist you so that you are able to give mediation the best possible chance to succeed.
One of the most controversial areas of Family Law is domestic violence. There are no easy answers or solutions to domestic violence. What you read on this website may be troubling to you, whether you are the accused or accuser. What you read is very troubling to us to, and we wrote it.
As you read this section on domestic violence, all we ask is that you understand that we know that there are legitimate claims every day of domestic violence. We know that incidences of domestic violence have resulted in: death, rape, battery, maiming and the inexcusable abuse of children. We are aware that domestic violence leaves both physical and emotional scars upon the parties, their children, and in most incidences extended family too.
So here is some friendly (and free) advice:
If you have been subjected to domestic violence, your first priority is to immediately seek shelter in a safe and secure location. Do not “stand your ground.” Leave as quickly as you possibly can to a place of safety. Do not worry about your property. Just go. Do not hesitate to run as fast as you can to a safe place. If the best you can do is to lock yourself into a room, do it. After you are safe, call for help.
If you have the slightest suspicion that you are about to become a party, may become a party, to a domestic violence case, or if you have the slightest suspicion that you are about to, or may become a victim of domestic violence, you should immediately seek shelter in a safe and secure location and never ever return to any location where you have reason to believe your well-being may be in danger. Do not “stand your ground.” Do no wait to see what may happen next. Do not confront your spouse or domestic partner. Go directly to a safe and secure location.
The best way to avoid becoming a party to domestic violence is to not place yourself in a position where you are at risk. Never attempt to defuse (or handle) a domestic violence situation by yourself.
From your location of safety, it will then be possible for you (with the assistance of others) to evaluate your situation. From your location of safety, you will be able to work with family, friends or other properly trained professionals to defuse the situation. If a domestic violence situation does arise, the assistance of a friend, family member, or trained professional maybe invaluable to help you decide what to do. An independent third party witness will always be your best friend when a domestic violence situation gets out of control. From your location of safety, you will then be able to seek legal redress as maybe necessary.
What is domestic violence?
The Center for Disease Control defines domestic violence as any abuse or violent action that occurs between two individuals in a close relationship. In Maryland, domestic violence is defined in MD Code Ann FL §4-501. Definitions. In order to obtain a domestic violence protection order, the following are required: a “person eligible for relief” must file a petition for a domestic violence protection order with a court (or the District Court Commissioner). In that petition, the accuser must alleged that abuse occurred in the home and that the accuser seeks relief from the alleged abuser.
Abuse is defined under MD Code Ann FL §4-501(b) as being means any of the following acts:
(i) an act that causes serious bodily harm;
(ii) an act that places a person eligible for relief in fear of imminent serious bodily harm;
(iii) assault in any degree;
(iv) rape or sexual offense under §§ 3-303 through 3-308 of the Criminal Law Article or attempted rape or sexual offense in any degree;
(v) false imprisonment; or
(vi) stalking under § 3-802 of the Criminal Law Article.
But that is not all, mental abuse are also grounds to have you removed from your home. Additional types of abuse includes:
Verbal Abuse consisting of: constant criticism, mocking, humiliating remarks, yelling, swearing, name-calling, (believe it or not) interrupting;
Sexual Abuse consisting of: forcing sex on an unwilling partner; demanding sexual acts that your spouse does not wish to perform, or degrading treatment.
Isolation that consists of: making it hard for the victim to see friends and relatives, monitoring phone calls, reading their mail, controlling where the victim goes, taking the victim’s car keys, destroying the victim’s passport.
Coercion: making the victim feel guilty, sulking, manipulating children and other family members; always insisting on being right; making up impossible rules and punishing the victim for breaking those rules.
Harassment: embarrassing the victim in public, constantly checking up on the victim, refusing to leave when asked.
Economic Control: not paying bills, refusing to give the victim money, not letting the victim work, interfering with the victim’s job, prohibiting the victim from going to school, not allowing the victim to learn a job skill, refusing to work and support the family.
Abusing a Trust: lying or breaking promises, withholding important information, being unfaithful, being overly jealous, not sharing domestic responsibilities.
Threats and Intimidation: threatening to harm the victim, the children, family members and pets, using physical size to intimidate, shouting, keeping weapons and threatening to use them.
Emotional withholding: not expressing feelings, not giving compliments, not paying attention, not respecting the victim’s feelings, rights and opinions, not taking the victim’s concerns seriously.
Destruction of property: Destroying furniture, punching walls, throwing or breaking things, abusing pets.
Self-destructive behavior: abusing drugs or alcohol, threatening self-harm or suicide, driving recklessly, deliberately doing things that will cause trouble.
If the above list (cf. the Maryland Network Against Domestic Violence) sends a chill down your spine, it should. There are literally over one million websites dedicated to mental abuse and domestic violence. There are literally over one million websites dedicated to how to obtain a Maryland domestic violence restraining order, and over two million websites dedicated to how to obtain a domestic violence restraining order nationwide. By way of contrast, there are less than three hundred twenty thousand websites dedicated to false allegations of domestic violence.
Do we have your attention yet?
Signposts that you are about to become a domestic violence statistic.
Ask yourself the following questions:
a. Is my marriage (or domestic relationship) coming to an end?
b. Have my spouse (or domestic partner) and I been arguing or fighting?
c. Has my spouse (or domestic partner) previously engaged in (angry) physical or verbal contact with me?
d. Did I recently catch my spouse (or domestic partner) cheating?
e. Did my spouse recently (or domestic partner) catch me cheating?
And most importantly:
f. Does my spouse (or domestic partner) want me out of the house?
g. Has my spouse (or domestic partner) told me that they want a separation or divorce?
h. Has my spouse (or domestic partner) been trying to pick a fight with me or tried to provoke me in any way?
If you can answer yes to any of the above questions, you should be concerned that a domestic violence petition could, and might be, filed against you at any time, even if the allegations of domestic violence are false. Once domestic violence is alleged, the entire composition of your divorce and child custody case will be changed forever.
There are many harsh realities of domestic violence that not many legal professionals are going to tell you (or put on their websites). Advocacy groups are everywhere that justifiably decry domestic violence (as we do), but there are almost no advocacy groups that decry false claims of domestic violence. There are unscrupulous attorneys who routinely will advise their clients to: provoke a fight with their spouse if they want him/her out of the house; or worse, file a petition even if the facts are not true because “everyone does it”. Just when we think that we have “seen it all” or “heard it all”, another incredible case crosses our path.
The harsh reality of domestic violence is: anyone can accuse you of domestic violence simply by filing of a petition for a domestic violence protection order with the legal authorities. Once a claim of domestic violence has been made against you, you must realize that your relationship with the accuser is over and beyond repair. You must understand that any claim of domestic violence made against you could forever ruin your life. You must understand that any claim of domestic violence made against you is extremely serious. Under most instances where domestic violence has resulted in an protection order, you will be subjected to an unfavorable child custody ruling by some judge in the future. Another harsh reality of domestic violence is; you could end up going to jail.
Some sage words of advice…
A motel room is a hellofalot cheaper than hiring an attorney to defend you in a domestic violence case. A motel room is a hellofalot nicer than a jail cell. If you have no money, the local homeless shelter is a hellofalot nicer than a jail cell too. Never ever attempt to defuse (or handle) a situation where domestic violence is alleged or has occurred by yourself. If your relationship has deteriorated to a point where you believe your presence is not wanted, leave. Fighting can only result in making a bad situation worse. Trust us, we know, we have been prosecuting and defending domestic violence cases for over a decade, and they ain’t pretty.
Here are a few more suggestions for you to avoid being the victim of a false domestic violence allegation:
Avoid the fight:
Once your spouse threatens you with divorce, make sure there are other people around you who can be present if a conflict arises. Report all threats to family or friends. Write any threat, hint, false statement or accusation down on a calendar, diary, or email so you have a record of them.
If you see it coming, run, don’t walk, to the District Court Commissioner, the Court, or our law offices. File for a domestic violence protection order. Insure that there is a record that your spouse is making a false accusation against you (this is a form of abuse).
If you suspect that your spouse is up to no good, chances are that your instincts are correct. Immediately seek the assistance of a lawyer. You are going to need help sooner or later, and most often, it is less expensive if you get help sooner.
What about false allegations of domestic violence?
The story you are about to read is real. Not too many years ago we were retained to defend an unemployed husband whose executive wife wanted him out of the marital home. They had been married for over twenty years. The wife called 911 and alleged that the husband had committed domestic violence against her. The 911 Operator that help was on the way. The wife had a not too long conversation with the 911 Operator while the police were in route. When the Police arrived, the husband was not at home. The Police advised the wife to go to the Commissioner’s office and to file for a domestic violence protection order, which she did. Without any warning whatsoever, in the middle of the night while the parties were sleeping in the same bed, the Montgomery County Sheriff woke the husband, and immediately removed him from the home. He had minutes to collect a change of clothes and a few personal items. He was also served with an arrest warrant and arrested for domestic violence against the wife. He spent the rest of the night in jail. The next day he retained us.
To make a long story short, sometime later in the criminal charges arising from the wife’s domestic violence complaint, the Montgomery County State’s Attorney extended to us a plea offer of probation before judgment if our client would plead guilty to second degree assault. This way he would avoid going to jail. We declined the offer. We demanded that the State’s Attorney produce a recording of the 911 call. After a few weeks, they were able to obtain the recording of the 911 wife’s call for help. In the office of the State’s Attorney, the Assistant State’s Attorney and I both listened to the 911 call. The wife’s voice was calm and showed no stress. In the middle of the call, you could overhear the wife say that she had been trying to get the husband to leave the home, she wanted him out of the home, and that he had refused to go. We were able to have the criminal charges dropped.
There are many, many more cases that we have been involved with that have similar facts.
We know that when it comes to false claims of domestic violence, the system is stacked against men. The statistics back up our experiences, and they are not good. It has been reported that over seven hundred thousand individuals are wrongfully arrested for domestic violence every year. And that is only arrests. The above figures do not include false allegations of domestic violence in civil cases. While women are most often the victims of domestic violence, men are most often the targets of false allegations of domestic violence.
Men’s rights organizations have estimated that up to 80% of domestic violence allegations against men are false; and that 70% of restraining orders are based upon trivial or false allegations. As noted in the above paragraphs, the definition of domestic violence has been broadened so much that just about any act that makes your spouse upset could be deemed abuse. And god help you if the act involves an unwanted touching.
What do I do if I have already been accused? Is it too late to do anything?
If you are alleged to have been involved in a domestic violence situation, you should immediately retain an attorney. DO NOT WAIT. Domestic violence cases move through the courts… fast. In just two (2) weeks, your entire life could be irretrievably turned upside down.
We never recommend that you go to court to defend yourself against a claim of domestic violence. The odds are stacked too much against you. Here is yet another harsh reality of the typical domestic violence situation:
1. Judges do not want their names appearing in the morning newspapers. If a Judge issues a Domestic Violence Protection Order and something happens to the alleged victim, they will be reported as having done the right thing. If they issue a Domestic Violence Protection Order and nothing happens, so what? If they do not issue a Domestic Violence Protection Order and something does happen to the victim, the Judge runs the risk of having every women’s group and/or reporter attacking their judgment in the morning newspaper.
2. Women’s Groups are in court and take notes on every domestic violence case that comes before the court. They send those notes to the Governor second guessing the Judge.
3. Women’s advocacy groups appear for free to “aid and comfort” domestic violence victims in court. Despite objections to their presence, Judges are reluctant to have a “domestic violence advocate” removed from Counsel’s table, or to not allow them to give advice to the alleged victim.
4. There is a belief that where domestic violence has been alleged, it is best to keep the parties separated. Courts will pressure the accused to enter into voluntary agreements (albeit without any findings of fact), to vacate their home, to “stay away” from the accuser, and to leave their children.
We at Shechtel and Associates, P.A., know how to defend allegations of domestic violence. We know the legal standards. We know what the necessary evidence is for obtaining a domestic violence protection order. We know how to expose allegation inconsistencies, motivations to fabricate the truth, and what you need to do to defend yourself.
Are domestic violence cases expensive, and if so, why?
Yes, the typical domestic violence case is expensive, all things considered equal. The why they are expensive is because in the typical domestic violence case:
a. Things move fast, really fast.
i. If there is an interim domestic violence protection order, within 24 hours there must be a hearing for the issuance of a temporary domestic violence protection order.
ii. Within seven (7) days following the issuance of a temporary domestic violence protection order, a hearing/trial must be held for the issuance of a Final Domestic Violence Protection Order.
b. The risks are very high.
The court upon entering a Final Domestic Violence Protection Order has the power to Order:
i. You out of your home;
ii. Use and possession of family use personal property, including your car;
iii. Family maintenance;
iv. You to attend counseling of any kind or nature;
v. Custody of your children;
vi. Access rights for you to see your children;
vii. Any other form of injunctive relieve that the Court deems necessary or appropriate.
c. There is collateral damage. Once a Final Domestic Violence Protection Order is entered against you:
i. All firearms are seized by the Sheriff. You may never see them again.
ii. ADR/Mediation in your case may be suspended. This increases the cost of your divorce and any custody or access issues that involve your children.
iii. You could be restricted to having only limited or supervised access with your children. You could also be banned from attending school functions, including plays, recitals, sporting events, and more.
iv. Your employer could be served with notice that you are the subject of a Domestic Violence Protection Order. If you have a security clearance, you could lose it. If you have to carry a gun as a condition of your employment (police, security guard, etc.) you may lose your job because you will no longer be allowed to carry a firearm.
v. You could face criminal charges in court.
vi. Your spouse may tell your children that you are a dangerous person (see parental alienation under the custody and access section of this website).
vii. If your spouse is awarded custody of the children, the Circuit Court will rarely upset that award of custody Pendente Lite. As a result you will be the underdog when final custody merits are heard… about a year or more later.
viii. You could be forced to stay away from anywhere your spouse may be, such as: fitness clubs, Church, recreation centers, or even a family event (such as a wedding or funeral).
We were Counsel in case where a wife/mother filed for a domestic violence protection order. The Petition was denied. Twenty four (24) hours later, the wife/mother filed a second (false) petition for domestic violence protection. A different Judge granted her a temporary domestic violence protection order. Upon entry of the Order, the wife absconded with the parties infant child and fled the state. All in all, the wife filed a total of four (4) (false) domestic violence petitions, all of which we successfully defended.
We have been involved in many cases where a wife, immediately after the entry of a (false) temporary domestic violence protection order, emptied the marital home of everything she wanted. In a particularly bitter case, the wife throughout the husband’s clothes, stole his golf clubs, and literally destroyed whatever property she could not pack into her car.
So the lessons to be learned here, never ever allow yourself to become a “victim” of domestic violence, as an accused or accuser. Everyone loses in domestic violence. There are no winners. The best defense is to avoid the situation altogether.
The cold hard truth is, following a claim of domestic violence, your entire divorce or custody case could essentially be decided in seven quick days. This is no lie. No matter what anyone else may tell you, if you have been accused of domestic violence, you are in an extremely precarious situation that mandates you obtain the assistance of an attorney who knows domestic violence. Every minute that you hesitate in hiring an attorney prejudices your case.
We at Shechtel and Associates, P.A., know that the legal issues involving children arising from a separation or divorce are painful, difficult, and all too often, expensive. Children issues primarily involve: custody (legal and physical), access (a/k/a visitation), and support. Within those areas are a host of subsidiary issues. Unfortunately for most parents the devil is in the details for each and every aspect of determining how children are to be “divided” between them.
One of the bigger differences in cases involving children are the various Orders that the Courts are empowered to issue. Because time is deemed to be an essential element in cases involving children, and because the Courts strive to minimize the impact resulting from the dissolution of a family unit has upon children, either party litigant may obtain either relief via an initial order of court or modification of an existing order in the form of a Pendente Lite Order or Final Order.
What is custody?
Custody is a legal term that refers to the responsibilities involved in raising and caring for your children. These are responsibilities and not merely the right to raise your child. Modern child custody is divided into two primary areas: where the children are to live which is known as physical custody; and, and who has the authority to make decisions involving the welfare of the children, which is known as legal custody.
What is physical or residential custody?
Residential Custody is that residence where the children call home. Residential custody may be primary (previously referred to as “sole physical custody”) or shared (previously referred to as “joint custody”). In Maryland, primary or shared physical (residential) custody is determined by where the children spend the night.
In recent years, shared parenting (joint physical custody) has become very popular. Under a shared residential custody arrangement, the children reside with both parents not less than 35% of the time. Shared residential custody arrangements require that both parents share in the decision-making and other responsibilities for their children, and they must be able to regularly consult with each another about important issues affecting their children.
What is legal custody?
Legal custody is the ability to make decisions about the welfare of your children. This includes, but is not limited to a child’s needs for: education, diet, medical dental, religious training, discipline, choice of schools, extra-curricular activities, summer and other vacation plans, and all other matters of importance pertaining to the general welfare of the child. Legal Custody can be sole (primary) or joint. As with Shared Residential Custody, Joint Legal Custody arrangements require that both parents share in the decision-making for their children. It is accordingly mandatory that they be able to regularly consult with each another about important issues affecting their children. With rare exception, most Joint Legal Custody arrangements provide that one parent be granted “tie breaking authority” so when the parties cannot agree on an issue concerning their children, they do not have to return to Court.
What is a parenting plan?
Simply put, a parenting plan is what used to be called a “Custody Agreement”. Today the Courts and child care experts believe that separating parents should develop written plans for how they are to parent after they are no longer living together. The words “custody” are discouraged because it connotes ownership or the keeping of a child.
We at Shechtel and Associates, P.A., have been in the forefront of drafting extremely detailed and extensive parenting plans that are later incorporated into Orders of Court. Why? Because we know how expensive litigation is. With over twenty years of family law experience, we know that a loosy goosy Parenting Plan invites one party to try and take advantage of the other. When you retain Shechtel and Associates, P.A., you benefit from our two decades of experience from litigating poorly drafted Parenting Agreements. We take the time to sweat the details so that the odds of your case returning to court are substantially diminished.
We know the questions to ask your so that we have a clearer understanding of the “other parent” before we start to draft your Parenting Plan. One of our goals in drafting your Parenting Plan is that you do not have to return to Court over and over in the future to have the Courts make a declaration what was contemplated at the time of drafting your Parenting Plan. We do it right, the first time.
When you retain Shechtel and Associates, P.A., as your attorneys for your child custody case, we will assist you with the drafting of a parenting plan that takes into consideration all of the circumstances of both you, the other parent, and your children. We know what the issues and considerations are for children of various ages and developmental needs. Our parenting plans include: details about residential and legal custody, access both physical and non-physical, transportation considerations, vacations, camp, child employment issues, financial and income tax considerations, special family events, potential future changes in residential custody, how to handle relocation, and much more. Our Parenting Agreements provide both parent and child with specific schedules and detailed parenting arrangements so there are no misunderstandings or disagreements. We also make accommodations for contingencies, mutual agreement of the parents to modify, and who pays in the future in the event there is a failure to comply with the plan. We know what works, and what does not work.
When you work with us, we will assist you in making the right decisions regarding (as an example):
• Scheduling when the children are to be where and with which parent;
• How to scheduling getting your children from one home to the other with a minimal opportunity for conflict;
• How to best handing the issue of transporting the children to/from activities or the other parent’s home;
• Scheduling weekday, weekend, holiday, special events, and vacation access periods;
• Scheduling communication access during all times that a child is away from you;
• How parents are to communicate with each other to keep the other informed about school, extra-curricular activities, friends, parties, holidays, trips, vacations, travel, religious events, and anything else that involves your child;
• How to make plans for your child with the other parent;
• Special care that is needed for your child;
• Emergency or other medical needs for your child.
And the above list is by no means all inclusive. We know how to implement all of the latest in Shared Parenting plans including: alternating weeks, 4-3-3-4; 5-2-2-5, as well as many other or custom parenting plans or access arrangements, including parents who live in different states or countries.
But sometimes the parties cannot agree what is in the best interests of their children. Sometimes a Parenting Plan is not to be had. In those cases, which are rare, we will litigate your case before the Court.
Factors used by Maryland Courts to Determine Custody
The Maryland Courts follow what is commonly referred to as the “best interests” standard to determine custody issues. The paramount considerations in any child custody case are the “best interests” of the child. A child’s best interest are not considered as one of many factors, but as the objective to which virtually all other factors speak. Some of the factors to be considered by a court in making its custody determination are indicated below. While the court considers all of the factors, it should not weigh any one to the exclusion of all others.
The recognized standards for the best interests of the child test are:
1. Fitness of the parents
2. Character and reputation of the parties
3. Desire of the natural parents and agreements between the parties
4. Potential for maintaining natural family relations
5. Preference of the child
6. Material opportunities affecting the future life of the child
7. Age of child
8. Health of child
9. Sex of child
10. Residences for the parents and opportunity for visitation
11. Length of separation from the natural parents
12. Prior voluntary abandonment or surrender
The court in performing its evaluation must also take into account:
a. Child’s age
b. Child’s gender
c. Child’s physical needs
d. Child’s moral needs
e. Child’s intellectual needs
f. Child’s psychological needs
g. Parents ability to meet child’s needs
Are there additional factors other than those listed above?
As your custody attorneys, we know that a Judge may look to many factors to determine what is in your child’s best interests. Some, but certainly not all, of the additional considerations the Court will consider fall under the below key categories:
Who has been there for the children?
The Court wants to know, who historically has done what for the children. Examples include: personal hygiene, housekeeping, food and diet, providing medical & dental care, educational involvement, daily basic needs such as clean clothing and household chores, transporting the children. If your child was sick, who stayed home?
Fitness (physical and mental) of the parents.
This factor encompasses the psychological and physical capabilities of both parents. Taylor v. Taylor, 306 Md. 290, 508 A.2d 964 (1986). Here the Court will also ask: Is there a history of abuse or neglect? Neglect comes in many forms, as does abuse. The abuse can be directed at the other parent, the child or yourself (like drug or alcohol abuse). Abuse can be physical or mental. Neglect can be physical, emotional, or mental. The mental stability of the parties and the children are an abuse or neglect consideration. The Court will also consider prior instances of domestic violence, abuse, or tranquility within the home. The Court will also want to know how have the parties shared the rearing of their children, and how have they communicated with each other concerning their child’s well-being. The child’s ability to communicate with either or both parents is also a major consideration. Harsh or angry language is of paramount importance to the court too.
Character and reputation of the parties.
This is the desire of the natural parents and agreements between the parties. Although an agreement to relinquish or abandon parental rights may reflect the actual desires of a parent as opposed to the contrary desires the parent may express during litigation of the issue. Under Md Code Ann FL §8-103(a), the court may modify any provision of an agreement between parents with respect to the care, custody, education or support of any minor child of the spouses, if the modification is in the best interests of the child. Here the court will consider if each party has the time to be a parent. The court will consider your and the other parent’s schedules, including: work, education, travel, religious, community involvement, prior relationships (other children), and anything else that either parent has obligated themselves to do.
Potentiality of maintaining natural family relations.
Which parent is most likely to involve the children in continuing to enjoy family, extended family, and cultural heritage? Is a parent withholding access? Which parent has shown an openness to allow the children’s familiar lives not to be affected by the separation?
Preference of a child where the child is of sufficient age and intelligence to form a rational judgment (generally a teenager), but such child’s wishes are not binding or controlling upon the Court. At issue here will be the child’s age, is the child being pressured into a “preference”, and how was the child’s preferences communicated to whom.
Material opportunities affecting the future life of the child.
This is not what we refer to as the “bigger pony test” (If you come live with me, I will buy you a pony). This does not mean that a parent who is financially less fortunate than the other or otherwise not able to provide many of the comforts of life should not to be granted custody. This factor becomes significant if the parent is unable to financially care for him or herself, let alone a child. This factor is also part of parental unfitness, such as a child not being properly taken care of by a parent within the limits of their financial ability or where the financial situation (e.g., parent unable to hold down a job, homeless, etc.) has made the custodial situation unstable.
Age, Sex, and Health of Child
The “maternal preference” doctrine whereby a child of tender years was presumptively better off with the child’s mother was abolished in Maryland.
Residences of parents and opportunity for visitation.
Where the parties live in relation to the other. Employment hours, travel considerations, and ability to be home with the children.
Length of separation from the natural parents.
Concerning custody, “ties of blood weaken, and ties of companionship strengthen by lapse of time” rather than “absence makes the heart grow fonder.” Thus, an extended absence from one parent combined with the stability provided by the custodial parent may be a difficult circumstance to overcome.
What is shared residential custody?
Shared residential custody is where the child(ren) reside with both parents on a shared basis. Under Maryland law, shared residential custody arrangements arise when a child spends more than 35% of the total nights sleeping at that parent’s home. Under Maryland law, days are not counted, only nights. If your child spends 128 nights at your home, under Maryland law you are defined as having a shared residential custody arrangement.
Shared custody is very controversial because it also involves a different calculation of child support, and also because it involves a tremendous amount of cooperation between the parents to share in providing for the needs of their children. Shared custody requires that complex issues related to parenting time and duties must be agreed upon in the parties Parenting Agreement.
A shared custody parenting plan must provide for:
how much time should the children live with each parent vs the other;
what schedules are best for the children;
how should each parent’s time with the child be arranged;
which parent is to provide transportation;
which parent is to provide for educational needs;
and much, much more.
Basically, both parents must have duel homes for their children.
There is a lot of research that has concluded that children who live under a shared custody arrangement are better off when compared to children who live with only one parent (which is referred to as primary care or as sole residential custody). However, those studies do not take into account that children who live under shared custody arrangements should do better because parents in shared custody arrangements are committed to doing what is best for their children, they must be 100% committed to their children, and they are able to put behind themselves their separation.
By definition, under a shared custody arrangement, conflicts between the parents are supposed to be minimal. In circumstances where a shared custody plan works, children enjoy better: academic and cognitive development, emotional and psychological health, less stress related illnesses, better social skills and behavior, less instances of substance abuse, delinquency or aggression. Shared custody also fosters the child’s relationships with both parents.
What are the standards for Shared Custody?
When considering the best interest of the child in regard to joint custody, whether legal or physical, the trial court should consider those factors which the Court of Appeals has identified as being particularly relevant, including:
1. the capacity of parents to communicate,
2. parent’s willingness to share custody,
3. fitness of parents,
4. relationship established between the child and each parent,
5. potential disruption of the child’s social and school life, and
6. geographic proximity of parental homes. Arnold v. Hemani, CSA #1220., Sept 2003. See also, Taylor v. Taylor supra.
7. Preference of the Child.
8. Demands of Parental Employment.
9. Age and Number of Children.
10. Sincerity of Parents’ Request.
11. Financial Status of the Parents.
12. Impact on State or Federal Assistance.
13. Benefit to Parents.
14. Other Factors.
Taylor v. Taylor, 508 A.2d 964 (Md. 1986.) at 304 to 310. The sections below are quoted from various cases including Taylor.
Capacity of the Parents to Communicate and to Reach Shared Decisions Affecting the Child’s Welfare.
This is clearly the most important factor in the determination of whether an award of joint legal custody is appropriate, and is relevant as well to a consideration of shared physical custody. Rarely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future. With few exceptions, courts and commentators agree that joint custody is a viable option only for parents who are able and willing to cooperate with one another in making decisions for their child.
The Taylor Court stated that a blind hope that joint custody agreement would succeed is not acceptable and, generally, both the parents should be willing to undertake joint custody or it should not be ordinarily ordered. The capacity to communicate should be determined on past conduct or track record, with an evaluation as to whether or not the bitterness and lack of ability to cooperate during the separation and litigation is only a temporary condition likely to abate upon resolution of the issues in the divorce case.
Willingness of Parents to Share Custody.
Generally, the parents should be willing to undertake joint custody or it should not be ordered. This does not give a parent veto power over the possibility of joint custody. A caring parent who believes that sole custody is in the best interest of the child may aggressively advance that position throughout litigation, but still be willing and able to fully participate in a joint custody arrangement if that is the decision of the court.
Fitness of Parents.
The psychological and physical capabilities of both parents must be considered, although the determination may vary depending upon whether a parent is being evaluated for fitness for legal custody or for physical custody. A parent may be fit for one type of custody but not the other, or neither, or both.
Relationship Established Between the Child and Each Parent.
When both parents are seen by the child as a source of security and love, there is a favorable climate for joint custody. On the other hand, joint custody may be inappropriate when opposed by the child, or when there are indications that the psychological or emotional needs of the child would suffer under a joint custody arrangement.
Preference of the Child.
The reasonable preference of a child of suitable age and discretion should be considered. However, the court must be sensitive to the presence of the “lollipop” or “rescue” syndromes, and that sometimes a child may express a preference for joint custody because the child hopes to reunite the parents. The court should also be sensitive to the effect of a parent’s conduct that may be alienating a child from the other parent. The reasonable preference of a child of suitable age and discretion should be considered. In addition to being sensitive to the possible presence of the “lollipop” or “rescue” syndromes, the trial judge must also recognize that children often experience a strong desire to see separated parents reunited, and this motivation may produce an unrealistic preference for joint custody.
Potential Disruption of Child’s Social and School Life.
Joint physical custody may seriously disrupt the social and school life of a child when each parent has the child for half the year, and the homes are not in close proximity to one another. In such cases the amount of time each parent has physical custody may be adjusted without interfering with the concept of continued joint custody.
Geographic Proximity of Parental Homes.
Parental homes within the same school district offer certain advantages in a joint custody situation. The child may enjoy joint physical custody without changing schools or being required to constantly change a circle of friends, and the parents may find proximity a benefit in discussing the decisions to be made concerning the child.
Demands of Parental Employment.
In some situations, joint physical custody will be appropriate only if the work hours of the parents are different, or there is flexibility in the demands of the employment of each.
Age and Number of Children.
The factor of age obviously interrelates with other factors already discussed. The number of children involved may pose practical difficulties to a joint custody arrangement, but on the other hand may be helpful to both parents in bringing about a sharing of the pressures of single family parenting of a number of children. In rare cases, split custody may be preferred over sole or joint custody.
Sincerity of Parents’ Request.
A number of interested observers have opposed the concept of joint custody absent mutual agreement on the ground that one spouse may interpose a demand for joint custody solely to gain bargaining leverage over the other in extracting favorable alimony, child support or property concessions. The court will inquire if one parent has requested joint custody merely to gain bargaining leverage over the other in extracting favorable financial or property concessions.
Financial Status of the Parents.
Joint physical custody imposes financial burdens upon the parents because of the necessity of maintaining two homes for the child, with separate furnishings and often separate toys, equipment, and clothing.
Impact on State or Federal Assistance.
Aid to families with dependent children and eligibility for medical assistance may be affected by the award of joint custody. The necessary showing of “absence” of a parent may be challenged when there is an award of joint custody that includes shared physical custody. Under current standards eligibility may be established in the presence of joint physical custody, provided joint legal custody does not also exist. See Maryland Code (1957, 1985 Repl.Vol.) Art. 88A, §§ 44A-58; COMAR 07.03.02.01; 42 U.S.C. § 606(a)(1); 45 C.F.R. § 233.90(c)(1)(iii).
Benefit to Parents.
Although the primary focus is properly upon the best interest of the child, it is also appropriate to consider the salutary effect that joint custody may have on the parents, not only because their feelings and interests are worthy of consideration, but also because their improved self-image as parents is likely to redound to the ultimate benefit of the child. To the extent that any such benefit to the parents is likely to redound to the ultimate benefit of the child.
The enumeration of factors appropriate for consideration in a joint custody case is not intended to be all-inclusive, and a trial judge should consider all other circumstances that reasonably relate to the issue. The resolution of a custody dispute continues to be one of the most difficult and demanding tasks of a trial judge. It requires thorough consideration of multiple and varied circumstances, full knowledge of the available options, including the positive and negative aspects of various custodial arrangements, and a careful recitation of the facts and conclusions that support the solution ultimately selected. Because most decisions are not subjected to appellate review, and because appellate review is properly limited in scope.
There are several additional joint custody determinations that a trial judge should consider that reasonably relate to the issue of joint custody.
A parent’s religion and the child’s religious upbringing to the extent it impacts the child’s physical or emotional welfare. The court may not weigh the merits of different religions or non-religious upbringing. In a custody case a court “may consider evidence of the religious views or practices of a party seeking custody, along with other factors impacting on the child’s welfare, to the extent that such views or practices are demonstrated to bear upon the physical or emotional welfare of the child.
Evidence of abuse
“Abuse” has the meaning set forth in the Domestic Violence Act, Md Code Ann. FL §4-501. A court is required (under Md Code Ann. FL §9-101) to deny custody and restrict access rights to a party in custody proceedings if “the court has reasonable grounds to believe” that the party abused or neglected the child and the court does not specifically find that there is no likelihood of further abuse does not establish a new standard of proof. The Court must believe the party abused or neglected the child by at least a preponderance of the evidence in order to have the requisite “reasonable grounds to believe.” by a party against: the other parent of the party’s child; the party’s spouse; or any child residing within the party’s household (including a child other than the child who is the subject of the custody or visitation proceeding) may be considered as a factor bearing on the welfare and best interests of the child.
Access or Visitation
Access is the right of a parent to spend time with their child(ren). Presently, access is defined as being: physical (day, evenings for dinner, or overnight) and communication (email, telephone, Skype, FaceTime, etc.). Under Maryland law, access is a deemed to be a benefit of or for the child, and not the parent. Physical access is normally unsupervised unless there is a risk of harm to a child. The courts generally hold that access to both parents serves the best interests of children. “The right of visitation is an important natural, and legal right, but is one which must yield to the good of the child,” Radford v. Matszuk, 223 Md. 483, 164 A.2d 904 (1960).
A parents “visitation rights . . . are not to be denied even to an errant parent unless the best interests of the child would be endangered by such contact,” Roberts v. Roberts, 35 Md. App. 497, 371 A.2d 689 (1977). Only in exceptional cases will the right of access or visitation be denied. Painter v. Painter, 113 Md. App. 504, 688 A.2d 479 (1997). In Roberts, the father’s denial of a right to enjoy access with his son was upheld due to a history of substantial physical and verbal abuse of the child from the father. Although the complete denial of visitation to a parent is rare, sometimes it is necessary for courts to set restrictions and limitations on custody and visitation in order to assure the safety and welfare of minor children.
In instances where there is a risk of harm to a child, supervised access is ordered until the Court is satisfied that any risk of harm to a child is no longer an issue. Access can be denied altogether if the Court determines that access with a parent is harmful to a child. Access is never linked to, or dependent upon, the payment of child support. If a parent withholds a child from access because of non-payment of child support, the withholding parent can be held in contempt of court.
Instances of child neglect or abuse.
Braun v. Headley, 131 Md. App. 588, 750 A.2d 624 (2000). When a court has reasonable grounds to believe that neglect or abuse has occurred, custody or visitation must be denied, except for supervised visitation, unless the court makes a specific finding that there is no likelihood of further abuse or neglect; if the court determines, as an exception, that supervised visitation is appropriate, the court must assure, at a minimum, that such visitation will not jeopardize the safety and well-being of the child. In re Billy W., 387 Md. 405, 875 A.2d 734 (2005).
In re Billy W., 387 Md. 405, 875 A.2d 734 (2005) the court ruled that in a child protection proceeding, the court in determining parental visitation must decide and set forth the minimal amount of visitation that is appropriate and that the Department of Social Services (DSS) must provide, as well as any basic conditions that it believes, as a minimum, should be imposed; because the trial court is required to make such determinations in the best interests of the child, visitation may be restricted or even denied when the child’s health or welfare is threatened.
One of the newest (and most controversial) issues in custody family law is the issue of parental alienation or aggressive (hostile) parenting. Parental alienation normally occurs when one parent actively engages in behavior that is purposely directed to interfere or destroy a child’s relationship with the other parent. Most often, parental alienation manifests in a high conflict: marriage, separation or divorce. Parental alienation is almost always found in cases that involve domestic violence. Parental alienation is very destructive, and is always deemed to be damaging to a child’s mental and emotional well-being.
Parental alienation behaviors can be verbal or non-verbal. An alienating parent will mentally manipulate or bully a child into believing the other parent is: evil, violent, harmful, hateful, or the cause of the family’s problems, including why the parties are getting divorced. The harmed parent is oftentimes considered to be the enemy and to be avoided no matter what.
Parental alienation and hostile aggressive parenting deprive children of their right to be loved by both of their parents. The destructive actions by an alienating parent (or sometimes by some third person like another family member) are abusive to the child, and too often lead to mental, emotional or psychiatric conditions that require professional care. We at Shechtel and Associates, P.A., are all too familiar with parental alienation and hostile aggressive parenting. In practically every case where parental alienation is present, we employ the services of trained mental health professionals to engage the child(ren) and the affected (harmed) parent in reunification therapy.
What is supervised access?
Supervised access (a/k/a supervised visitation) is a form of access arrangement for the non-residential custodial parent that is Ordered by a Court when or where there is a risk to the child that the child might be harmed by a parent during an access period. Generally supervised access is ordered in high conflict cases that have a history of: substance abuse by a parent, mental illness, domestic violence, abuse, neglect, abduction. Supervised access is used to protect the child from a potentially dangerous situation while allowing access to continue and to foster the parent child relationship. Generally, the goal of supervised access is to move towards normality, or unsupervised access.
Supervised access has many forms and there are no set rules. Supervisors may be a friend, family member, trained professional supervisor, doctor, therapist, psychologist, or social worker. In all supervised access situations, the supervisor, not the parent who is afforded access, is the person who is placed in the position of insuring that the child’s interests are protected at all times. Supervisors are almost always given the authority to immediately terminate an access period, control the giving of gifts, presents, or food, and are expected to testify at future hearings about whether supervised access should be continued or terminated.
Unfortunately, Maryland has few supervised access centers. Private access supervisors are expensive and most families cannot afford to hire a professional access supervisor. Most health insurers do not cover supervised access or reunification therapy sessions. We as Shechtel and Associates, P.A., understand the issues that are presented in situations that require supervised access, and how to best serve the needs of the child first, and then those of the parents.
What are the standards for a Court to Order Supervised Access?
Under Maryland’s Family Law Article and the case law interpreting it, there are no specific standards or requirements (with the notable exception of the murder of a parent) for a court to order supervised access. As we have noted elsewhere in our website, family matters are governed by notions of equity. As is the rule in all equity matters, an equity court judge is allowed to his/her own discretion as to what deems it to be just and right, or stated differently, what is in the best interests of the child.
Equity courts consider the totality of the circumstances at the time of the hearing, and weigh all of the factors for or against supervised access, with the overriding issue being: is a parent a fit or proper person to have custody of the child, even if only for a few hours. When making a custody (or visitation) determination, “the paramount and overriding consideration is the fitness of the parent at the time of the hearing, rather than based on earlier misconduct.” Raible v. Raible, 242 Md. 586, 219 A.2d 777 (1966).
In the case of unsupervised access, the Court must be satisfied that there is no risk to the minor child while in the care or custody of a parent. In the case of supervised access, the Court must find that there is a risk of harm to the child, that a parent is not a fit or proper person to have custody of the child, and it is dangerous for the child to be left in the custody of the parent without an adult being present to protect the child’s interests. A parent whose child is placed in another person’s custody has the right of access to the child at reasonable times, the “parens patriae power of the equity courts is plenary to afford minors whatever relief may be necessary to protect their best interest,” Wagner v. Wagner, 109 Md. App. 1, 41, 674 A.2d 1 (1996); see also Raible v. Raible, 242 Md. 586, 219 A.2d 777 (1966).
Under Md Code Ann. FL§ 9-101, the Court may reject access to a parent if abuse is likely. If the Court has reasonable grounds (a low standard, See Volodarsky v. Tarachanskaya, 397 Md. 291, 916 A.2d 991 (2007)) to believe that a child has been abused or neglected by a parent the court must then determine whether abuse or neglect would likely occur if access rights were to be granted to the party found to have abused the child. Unless the Court finds that there is no likelihood of further abuse or neglect by that party/parent, the court is mandated to deny access to that party. The Court may however, approve a supervised access arrangement that assures the safety of the physiological, psychological, and emotional well-being of the child. There are many forms of abuse or neglect that the court is empowered to consider. The court is to consider evidence of abuse by a party against: the other parent, a spouse, or any child residing within the party’s household, including a child other than the child who is the subject of the access proceeding.
Supervised Access in cases that involve Physical or Sexual Abuse, Alcoholism, Substance Abuse, or Child Neglect.
A court’s “finding of child abuse does not preclude all visitation as a matter of law.” Arnold v. Naughton, 61 Md. App. 427, 486 A.2d 1204 (1985). In Hanke v. Hanke, 94 Md, App. 65, 615 A.2d 1205 (1992), the court held that where there is a factual basis for a parent’s fear that the other parent was sexually abusing the child, it was improper for the Judge to allow unsupervised access with the alleged abusing parent absent “stringent safeguards” satisfactory to “all parties,” even though they may not have agreed that there was an appreciable risk of further abuse. The Maryland Court of Special Appeals further ruled that overnight access with a supervising adult being present was not sufficient to protect the child from further sexual abuse. In John O. v. Jane O., 90 Md. App. 406, 601 A.2d 149 (1992), the Maryland Court of Special Appeals affirmed the decision of the trial court restricting access between a father and son denying overnight access but not unsupervised daytime access. However, the Court did remand the case back to the Circuit Court to review its decision not to impose supervised access where there had been strong evidence of that the child was at risk of sexual abuse.
Supervised Access in cases that involve Drug or Alcohol Abuse
It is well documented that a parent who is a substance abuser suffers from impair functioning that poses a significant risk to a child. Cohen v. Cohen, 162 Md. App. 599, 875 A.2d 814 (2005). The Court of Special Appeals has held that the trial courts are free to impose conditions upon access, such as: no alcohol can be imbibed for a period of time before or at any time during an access period. All that is required is that the condition is in the child’s best interest and there is sufficient evidence to support the imposition of the requirement. It is not unusual for the Courts to mandate regular drug testing, continued participation in substance abuse counseling, attendance at AA meetings, Narcotics Anonymous, or other group therapy. In Cohen, the Court ordered that the father’s access was contingent upon his successfully passing monthly random urinalysis and that he had to make the results available to the other party.
Outside Presence of Paramour
In Maryland, a child’s exposure to a parent’s paramour is not per se detrimental to the parties’ child. However, courts may place restrictions on a parent’s right to visit with the parties’ child if there is sufficient evidence showing that such access is detrimental to the child or not in the child’s best interest. Visitation rights may be conditioned upon a parent “not to be in the company of” a boyfriend or girlfriend.
Judicially recognized restrictions upon custody and access.
Deckman v. Deckman, 15 Md. App. 553, 292 A.2d 112 (1972): a condition imposed upon either party’s right to have custody of the children must be based upon adequate proof that it is reasonable to believe that the association of the restricted parent with certain persons in the presence of the children would be contrary to their best interests.
Homosexuality is not a legitimate ground to restrict access
North v. North, 102 Md. App. 1, 648 A.2d 1025 (1994): concerning the restriction of visitation of a homosexual parent who is HIV positive. The trial court’s restriction on overnight visitation was vacated and remanded as the restriction did not demonstrate how it would protect the children from harm, nor did the restriction follow logically from the facts and was not reasonably related to court’s objective.
Boswell v. Boswell, 118 Md. App. 1, 701 A. 2d 1153, aff’d 352 Md. 204, 721 A.2d 662 (1997): where it was held that the trial court erred in ordering a restriction on a father’s visitation based on his sexual orientation absent evidence of actual or potential harm to the children. The court stated that “reasonable maximum exposure to each parent is presumed to be in the best interests of the child.” The applicable standard in visitation cases involving the presence of non-marital partners (whether heterosexual or homosexual) is “best interests of the child with liberal visitation being restricted only upon a showing of actual or potential adverse impact to the child resulting from the contact with the non-marital partner.”
Kennedy v. Kennedy, 55 Md. App. 299, 462 A.2 1208 (1984). There must be a nexus between the harm to child and contact with the non-parent for the court to limit visitation.
Mental Health Therapy and Medication Compliance.
It is permissible to condition custody/visitation upon continued participation in family counseling if such condition is in the best interests of the children. Sometimes mental health issues are apparent and protections need to be put in place to ensure that a parent is continuing to obtain necessary mental health treatment and is compliant with medication requirements in order to provide for the child’s safety.
Religious Activity Limitations.
The parents’ own constitutionally protected freedom of religion includes the right to direct the religious upbringing of their children. There has to be a clear showing that a parent’s religious practices have been or are likely to be harmful to the child, before the court will interfere with those religious practices. A clear showing requires more than simply the general testimony that the child is “confused” or “upset” by conflicting religious practices. A factual finding of a causal relationship between the religious practices and the actual or probable harm is required.
Kirchner v. Caughey, 326 Md. 567, 606 A.2d 257 (1992);
The court limited the proselytizing religious activities the father could engage in during his visitation with his daughter. The appellate court remanded the case to consider a restriction which intrudes the least on the religious practices of the parent and yet is compatible with the child’s welfare. This case discusses the non-custodial parent’s right to involve the child in their religion while not overriding the legal custodian’s decision on the child’s long range religious training.
Bienenfeld v. Bennett-White, 91 Md. App. 488, 605 A.2d 172, cert denied, 327 Md. 625 (1992); and Levitsky v. Levitsky, 231 Md. 388, 190 A.2d 621 (1963): Parental refusal to permit necessary blood transfusions for their children on religious overridden.
Brice v. Brice, 133 Md. A2d. 302, 754 A.2d 1132 (2000): a grandparent visitation case, the Master had recommended that there be no smoking in the child’s presence while she was visiting with her grandparents. Sometimes this issue is particularly significant due to a child’s asthma condition.
Use of Infant/Child Car Seat.
Sometimes a concern arises over a parent’s failure to use an appropriate car seat for a child, particularly a very young child.
If the court determines that a party has unjustifiably denied or interfered with visitation granted by an order, the court may take certain additional remedial measures to provide “make-up” time or ensure future compliance. FL § 9-105. Note that in Barton v. Hirshberg, 137 Md. App. 1, 767 Md. App. 1, 767 A.2d 874 (2001), the parent who was not the primary custodial parent was given increased visitation due to the child’s parental alienation syndrome, which endangered the child’s emotional maturation. The increased contact was intended to allow the child to develop a better relationship with the father, while continuing a close bond with the mother.
In McCready v. McCready, 323 Md. 476, 593 A.2d 1128 (1991), the court modified custody in favor of father, finding the mother was selfish and immature and not acting in the child’s best interest in her attempts to deny or limit father’s access to their child.
Should I attempt to enter into a parenting plan, or litigate custody and access?
Many years ago, I was in about to commence a custody hearing before a very wise Montgomery County Circuit Court Family Law Master. Just as the case was about to commence following his hearing a brief outline of the issues that were to come before the Court, the Master looked at both the mother and father. What he said next I will never forget.
He looked at the Mother and inquired:
“Madam, do you love your children?” She answered yes.
“Sir, do you love your children?” He answered yes.
The Master then said:
Well, I don’t love your children. I do not even know your children. I do not know you or you. So with you both knowing that I do not know either of you or your children, and knowing that I have never been to your home, why would you want me to decide what is best for you and your children?
The Master concluded by telling the parents that with the aid of their attorneys, they should go outside of the courtroom and fashion a parenting agreement that was best for them and their children. Fortunately, the talk worked, and the parties settled.
This particular Montgomery County Circuit Court Family Law Master is very well respected, and his words were sage and wise. Parents of children of dissolved relationships never stop being parents. Children of dissolved relationships never stop needing parents. Being a parent lasts forever. Just because your relationship has dissolved, the needs of your children will remain and may actually increase due to the strains of living in a single parent household.
But the Master’s sage words do not work in all cases. Many times we advise clients to take cases to litigation because the other side is unreasonable, or does not have a realistic view or expectation of what they will achieve through the Court. We have the experience of over twenty years in the various Circuit Courts trying family law cases. We know the law. We know what your upside, and downside, will be if you take your case to trial. Sometimes, your best alternative is to take your case to a trial, and we will be right there next to you fully prepared to represent your interests.
We are strong advocates for parties entering into a Voluntary Parenting Plan and Consent Order. We believe that you, not the courts, are in a better position to determine what is in your child(ren)’s best interests. But if an agreement is not to be had, then we atShechtel and Associates, P.A. have the experience, knowledge, and are ready, willing and able to prepare you to fully litigate to your rights before the Court. We know how the Court system works, and what is required for you to present your case in the best possible light.