A Win For Pro Bono!

The Maryland Appellate Court recently ruled in favor of an MVLS client who had been ordered to pay for the opposing party’s attorney fees, based at least in part on the MVLS client receiving a “free” attorney. 

The case, Avery v. Crout, began back in May 2020 when MVLS received an intake phone call from an individual seeking to modify his custody arrangement. He hadn’t seen his children for over six months and he wanted to establish a more consistent relationship with them. Thanks to a dedicated volunteer attorney, Andrew Levy, the client was assisted with their custody modification. His firm provided more than 40 hours of pro bono to the MVLS client. 

When the case went to trial in Anne Arundel County in 2022, the Circuit Court judge granted attorney fees to the opposing party, citing in part as his reason that our client, who is unemployed, received pro bono services. 

Recognizing the terrible precedent that this kind of ruling could create for pro bono clients, the volunteer attorney immediately decided to appeal the ruling. MVLS and other legal services organizations joined in an amicus brief, drafted by MVLS Board Member Anthony May, raising the potentially chilling effect on pro bono if this ruling was left in place. 

The arguments were heard in early 2023, and we were thrilled to receive the Appellate Court’s ruling late last week, recognizing that receiving pro bono help is not a factor when determining attorney’s fees in a case. 

Thank you to Andy, Anthony and all of our volunteers and supporters who are so committed to access to justice.

MVLS Had an Attorney for Me

2023 Annual Report

Natushia Lewis-Smith called MVLS because she needed help with her divorce.  

Family law cases like hers are the most common legal problem that drive people to seek help from MVLS. The legal system is extremely difficult to navigate, and family law clients often find themselves enmeshed in particularly emotionally and mentally devastating situations with everything about their future in turmoil. In these moments, it takes a special volunteer to accompany clients. 

Ms. Lewis-Smith was placed with one such volunteer, Curtis Cooper. She shared that she will never forget the day she learned she would have the support of an attorney.  

Watch Natushia and Curtis share their story in the video below:

Family law cases are increasing throughout the state of Maryland, and pro bono programs like MVLS continue to see huge numbers of family law clients like Ms. Lewis-Smith seeking help. The high demand means clients with family issues must often wait a long time – sometimes for more than 60 days – to get help. 

That staff attorney is Nancy Grimm who joined MVLS in November 2022 to lead the program. Nancy works closely with MVLS legal advocates who answer clients’ calls for assistance and a panel of family law attorneys who take cases. Having an attorney on staff is key to developing and cultivating a strong network of volunteers. In some instances, Nancy also works directly with clients as they wait for placement with a volunteer, providing advice about navigating the process or assisting them in preparing their case.  

In just one year, having an attorney on staff has allowed MVLS’ family law program to place or close 42% more cases in FY23.  

Many clients express fear and uncertainty when suddenly faced with a family law matter that requires representation. Their lives are upended, and they often feel they have nowhere to turn for help. The stakes couldn’t be higher. 

“…Clients need to know they are accepted, that they mean something, that their issues are important, and that they can trust their attorney.”

Good family law attorneys put clients at ease, quickly develop trust, and work with empathy.

It is such a relief for a client to know they are in good hands with their volunteer attorney.  Nancy described what that looks like in practice, commenting on Curtis and Natushia’s case: “Obviously Curtis has great abilities,” she said, “but it’s not just about that. Clients need to know they are accepted, that they mean something, that their issues are important, and that they can trust their attorney. That’s what he brings.” 

Nancy herself was a volunteer with MVLS before she joined as the first family law attorney on staff. Her experience volunteering made her realize the need for good family law representation. Joining the staff was a goal realized and a personal honor. “I always wanted to be a part of the mission to provide equity within legal services,” she said.  

The unfortunate reality is that pro se clients, particularly people of color, are less likely than their white or more affluent counterparts to receive a successful outcome in court. Black and brown individuals face discrimination that has devastating effects on not only their case, but also their health and well-being. For example, courts often presume that people of color do not know how to care for their children and are in fact neglectful and abusive; Black fathers in particular face the presumption that they are incapable or disinterested in caring for their children. And while many judges show fair treatment toward Black individuals in custody cases, there are many who continue to harbor implicit racial bias that influences their rulings.  

“Our volunteers are getting quality programs…we engage and learn with each other.”

Because of these issues, volunteer attorneys must be prepared to advocate for both racial justice and a favorable legal outcome. MVLS offers trainings and mentoring, with an emphasis on the core value of eliminating systemic barriers to justice based on race and economic disparities. “Our volunteers are getting quality programs through MVLS, Nancy emphasized. “We engage and learn with each other.”  

Funding from the MLSC allows MVLS to reimburse family law volunteers who take complicated or contested cases at a low-bono rate. But as Nancy sees it, the primary benefit of volunteering is improving the lives of others. “We as attorneys develop a sense of accomplishment by providing a worthwhile and valuable service to our community,” she said.  

In Ms. Lewis-Smith’s case, the benefit was tangible. Together, she and Curtis Cooper won her case, securing a modest alimony that she uses to cover groceries and medical expenses. 


Interested in volunteering? Visit our Pro Bono Portal to take a case today.

Guide to Third Party Custody – What’s the Difference?

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.

2023 Legislative Changes to Maryland Divorce Law

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.

Maryland 2023 Legislative Changes to Divorce Law

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.