Category: Family Law

After raising their own children, many older adults find themselves in the position of raising their grandchildren. For some, caring for grandchildren is necessary to provide help with daycare, babysitting and other day-to-day activities for working parents. But some situations require more substantial measures to secure the grandchildren’s safety, health, and overall well-being. These measures may involve court intervention where grandparents and other third parties will need to petition the court for custody, visitation rights, guardianship, de facto parenting, or adoption of their minor children. A judge will decide all matters involving children – under the age of 18 – and their care based on state laws and what’s in the best interest of each child.

THIRD-PARTY CUSTODY/VISITATION

When a third-party files for custody of a minor child, the person is referred to as a third party with respect to the matter before the court. This term is merely used to distinguish any party seeking custody, including grandparents, from the natural parent, adoptive parent, or de facto parent. Under Maryland Law, grandparents do not have legal rights to custody or visitation of their grandchildren.

The courts presume that the parents are, by law, the natural and rightful custodians of their children. However, although difficult, third parties may seek custody of a minor child when there is evidence that the parents are unfit to raise children or when extraordinary circumstances exist that interfere with the parents’ ability to properly care for a child. The court may find a parent unfit if there is evidence of parental abuse, neglect, abandonment, mental illness, or other factors that may place a child’s well-being at risk. The court also must consider exceptional circumstances in making a third-party custody determination, which include:

• how long parents were separated from their children and, before seeking to reclaim the children, their ages when the third party assumed care;
• the relationship between the children and their parents;
• the nature and strength of the relationship between the children and the third party; and
• the impact of custody on the children’s physical and emotional welfare and their future, among other considerations

A judge, in deciding the matter, will use these factors to weigh a decision that ultimately will be in the best interest of the child.

DE FACTO PARENTING

In 2016, the Maryland courts granted parental rights to de facto parents. By definition, a de facto parent is not a biological or adoptive parent, or even a third-party custodian, but rather a person who has formed a strong bond with a child and, as a result, would like to petition the court for custody and visitation rights.

In this situation, the individual seeking child custody and visitation is no longer considered a third party or required to prove parental unfitness or exceptional circumstances with respect to the biological or adoptive parents if the following criteria are met:

• the biological or adoptive parent must have consented to and fostered the relationship between the de facto parent and the child;
• the de facto parent and the child lived in the same household;
• the de facto parent provided significant parental functions to support the child’s overall development and care; and
• a parent-child bond was formed.

This new development is significant in that it allows individuals who have assumed a parental role with the child, such as stepparents and same-sex couples, to continue that relationship with the child, all in the child’s best interest.

GUARDIANSHIP OF CHILDREN

Guardianship is a legal process in which the individual seeking guardianship petitions the court for appointment to manage the physical and/or financial affairs of the child. The naming of a guardian for a child in a Last Will and Testament is not enough to obtain guardianship. Guardianship is an appointment that is made solely by the court.

Generally, there are three types of guardianship:

• guardianship of person (cares for the physical and personal needs of the child);
• guardianship of property (oversees and makes decisions regarding the child’s financial affairs); and
• guardianship of both person and property

More than one person may be appointed as a guardian – depending on the facts and circumstances of the matter and considering what is in the best interest of the child. Some circumstances in which guardianship may be sought are when both parents die and/or when the child inherits a large sum of money, for example.

When petitioning for child guardianship, the consent of the parents should be obtained, whenever possible. All parties with an interest in the child also must be notified of the impending proceeding and be given an opportunity to accept or reject the appointment and to request a different guardian than the one who is petitioning the court. 

Obtaining guardianship for a child is a complicated procedure and, as in most legal matters, should be handled by a skilled attorney who practices in this area of the law. Petitioning for custody versus guardianship are two entirely different legal processes with distinct rules. So, it is important to seek the advice of an attorney to determine the best legal approach for both the grandparent and the child.

ADOPTION

A person may file a petition with the court and have a court hearing to seek adoption of a child. Any adult, other than the natural parents, may petition for adoption. This includes grandparents provided the court finds the petitioner(s) fit and able to care for the child – and that adoption is in the best interest of the child.

Adoption, once granted, establishes a new parent-child relationship – very much like the relationship nurtured by natural parents – but severs the natural, biological parents’ duties and responsibilities for the child.

Often, the child’s parents are deceased. However, if the natural parents are still living or a guardian is caring for the child, those individuals must be notified of the intention to adopt and be permitted to object to the action.

There are several types of adoption – public agency, private agency, and independent adoptions. Each type is associated with distinct rules and regulations, including time constraints related to consent matters and court rulings.

Seeking adoption is often a happy occasion but can pose its own set of challenges. So, it is recommended that an attorney is hired to assist the individual who seeks to adopt a child.

If you have limited income and are interested in pursuing legal help or have questions regarding the topics discussed in this article, feel free to contact Maryland Volunteer Lawyers Service at 410-547-6537. Our intake line is open Monday through Thursday from 9 a.m. to 12 p.m. 

Nancy Grimm is a family law staff attorney at Maryland Volunteer Lawyers Service.

Significant changes to Maryland Divorce Law will be finalized and will go into effect as of October 1, 2023. The new legislation repeals the entire section of the law that permits an individual to obtain a limited divorce and alters the grounds for absolute divorce in the State of Maryland.

Limited Divorce

Prior to the new legislation, Maryland recognized two types of divorce – limited divorce and absolute divorce.​ A limited divorce allowed individuals a basis for seeking temporary relief, perhaps who were unsure about permanently ending the marriage or for other reasons. However, with the new legislation, this ability to obtain a limited divorce has been repealed in its entirety and is no longer available under Maryland Law, leaving absolute divorce as the only viable option.

Absolute Divorce

While absolute​ divorce remains available to those parties seeking divorce, there have been considerable changes to the grounds to absolute divorce. Prior to the new law, parties could obtain an absolute divorce under the following grounds:

• Adultery;
• Desertion;
• Conviction of a felony or misdemeanor with incarceration.
• 12-month separation.
• Insanity; or
• Cruelty of treatment or vicious conduct toward a spouse and/or minor child.

These grounds have been repealed under the new law and have been replaced with the following:

• 6-month separation if the parties have lived separate and apart for 6 months without interruption before the filing of the application for divorce even if the parties are living under the same roof or if separation is in accordance with a court order; or
• Irreconcilable differences based on the reasons stated by the complainant for the permanent termination of the marriage.

Under current law, a court may also grant an absolute divorce on the grounds of mutual consent. The bill does not alter provisions regarding an absolute divorce based on this ground. In some cases, the court may also grant a divorce based on the permanent legal incapacity of a spouse to make decisions.

Please access the Fiscal and Policy note here for more information. Legislation – SB0036 (maryland.gov)

The new MVLS factsheet on the 2023 Legislative Changes to Maryland Divorce Law is a guide to the new legislation and addresses additional information regarding the potential impact of the new legislation for attorneys and clients.

With the new law, obtaining a divorce will certainly be easier and require less time, without the need to prove the more complicated grounds set forth in the previous law, particularly for those clients who must represent themselves without an attorney.

If you are a volunteer working with a MVLS client, you may consider providing your client with a copy of these guidelines. More information will be forthcoming as we learn more about the law and the court’s implementation.

Significant changes to Maryland Divorce Law will be finalized and will go into effect as of October 1, 2023. The new legislation repeals the entire section of the law that permits an individual to obtain a limited divorce and alters the grounds for absolute divorce in the State of Maryland.

Limited Divorce

Prior to the new legislation, Maryland recognized two types of divorce – limited divorce and absolute divorce.​ A limited divorce allowed individuals a basis for seeking temporary relief, perhaps who were unsure about permanently ending the marriage or for other reasons. A limited divorce allowed the parties access to the courts to resolve child custody and support issues, and alimony but did not make decisions on the distribution or termination of properties or assets.  Contrary to an absolute divorce, the granting of a limited divorce did not terminate the marriage and remarriage was not permitted. The parties could end the limited divorce at any time or continue indefinitely with the typical scenario of waiting out the 12 months separation, if grounds not established, and amending the limited divorce to absolute divorce to end the marriage. However, with the new legislation, this ability to obtain a limited divorce has been repealed in its entirety and is no longer available under Maryland Law, leaving absolute divorce as the only viable option.

Absolute Divorce

While absolute​ divorce remains available to those parties seeking divorce, there have been considerable changes to the grounds to absolute divorce. Prior to the new law, parties could obtain an absolute divorce under the following grounds:

• Adultery;
• Desertion;
• Conviction of a felony or misdemeanor with incarceration;
• 12-month separation;
• Insanity; or
• Cruelty of treatment or vicious conduct toward a spouse and/or minor child.

However, these grounds have been repealed under the new law and have been replaced with the following:

• 6-month separation if the parties have lived separate and apart for 6 months without interruption before the filing of the application for divorce even if the parties are living under the same roof or if separation is in accordance with a court order;
• Irreconcilable differences based on the reasons stated by the complainant for the permanent termination of the marriage. The bill specifies that parties who have pursued separate lives must be deemed to have lived separate and apart for purposes of the ground of six-month separation even if the parties reside under the same roof or the separation is in accordance with a court order; or
• In Permanent legal incapacity of a party who permanently lacks the capacity to make decisions.

Under current law, a court may also grant an absolute divorce on the ground of mutual consent. The bill does not alter provisions regarding an absolute divorce based on this ground. In some cases, the court may also grant a divorce based on the permanent legal incapacity of a spouse to make decisions.

Please access the Fiscal and Policy note here for more information. Legislation – SB0036 (maryland.gov)

Impact of New Legislation

The new legislative will have significant impact on those who wish to obtain a divorce and those attorneys who represent them. Some advantages to the new law are as follows:

• Obtaining a divorce is easier and quicker for the parties as the time frame required to do so is significantly lessened.
• Parties may remain in their shared home and “live under the same roof” while awaiting the 6-month separation time to lapse provided the parties live separate and apart.
• Conflicts and stress between the parties and the effects on the children are potentially reduced and hopefully will allow for an easier transition for families.
• While the original grounds for absolute divorce have been repealed, those former grounds may still be considered as factors when deciding child, alimony, and other divorce related issues.

While the advantages to the legislation are quite appealing there are still some questions left to be answered such as:

• How will the courts handle those limited and absolute divorces that have been filed before October 1, 2023, when the new law goes into effect?
• Will clients feel disadvantaged without the “legal crutch” of the limited divorce when uncertain whether to permanently end their marriage?
• How will define Maryland irreconcilable differences? Generally, the definition is broad in that it refers to the inability for a married couple to resolve their differences to save the marriage creating the basis for a no-fault divorce.  Will misbehavior on the part of spouse remain relevant for support and monetary determinations?
• What guidelines will the court utilize when deciding a case based on the permanent incapacity of a party?  Health insurance decisions and financial support decisions are a few factors that must be addressed when deciding these issues.

Over the next few months, we will await the court recommendations and move forward toward what is expected to be a more efficient, expeditious, and less stressful process for obtaining a divorce for both clients and attorneys.

If you are anticipating a court hearing in which you are a party, you are most likely experiencing anxiety at the thought of having to go to court. However, that anxiety can be significantly reduced by following a few simple steps.

One of the most important steps you can take is to hire an attorney if you can afford one. An attorney can help you to navigate legal language and procedures and can ensure that you are fully and fairly represented in court. If you are unable to afford an attorney there are other options.

• Find a Pro Bono Attorney: Do so as soon as possible. Public defenders handle criminal cases while volunteer attorneys represent civil matters, including family law and tax, housing, and other legal issues. 

• Prepare: If you must represent yourself, contact the court clerk’s office in the county where your case is filed to find legal resources that will direct you through the process. These resources include self-help legal clinics where you can learn the law and receive assistance with filing required pleadings or responses. You can obtain necessary forms and other information on the Maryland court’s website at mdcourts.gov/forms and the Maryland People’s Law Library website at peoples-law.org. 

• File Your Paperwork on Time: Generally, there is a time limit to file court documents. Failure to do so could result in the case being dismissed or the court entering a default order against you.  

• Service of Process: Complete, sign and serve the required documents to the opposing party. All pleadings must be mailed to the court and the opposing party with proof that this action was taken. Court documents are often served by a sheriff, an attorney, or an adult 18 years of age or older who is not a party to the case. A private process server or certified restricted mail delivery can also be used.   

The new MVLS factsheet on Courtroom Procedures – What to Know Before You Go is a step-by-step guide to courtroom procedure and protocols to ensure that your time in the court is less stressful and that a successful outcome is more likely. 

If you are a volunteer working with a MVLS client, you may consider providing your client with a copy of these guidelines. Many individuals struggle with the apprehension associated with going to court, especially if they have never been to court. These guidelines can assist your client in becoming more comfortable with the court and its processes, creating a more relaxed and engaged client with improved outcomes.