Modern Family Law Views – A Holiday Gift
December 4, 2014
A Holiday Gift from the Maryland Child Custody Commission
Maryland parents are receiving quite a substantial gift this holiday season from the Maryland Commission on Child Custody Decision-Making (“Commission”). On December 1, 2014, the Commission filed its official Final Report with the Governor and the General Assembly. The Final Report comes in at over 330 pages, including a Proposed Draft Custody Statute, an Executive Summary, and nine different appendices. Among the appendices are minutes of the Commission meetings and written reports from some of its six working committees. The Final Report includes a large number of recommendations approved by the full Commission, and a discussion of three particular areas where no unanimity within the Commission could be achieved. It is immediately obvious that a tremendous amount of work, research, and thought from the various Commission members and committee volunteers went into the Final Report, which soon should be posted to: http://msa.maryland.gov/msa/mdmanual/26excom/html/08childc.html. Now what Maryland needs is enactment into law of a custody statute that reflects the Commission’s hard work and recommendations!
Among the highlights of the proposed draft custody statute are a new definitions section, a new and expanded list of factors for judicial consideration, and a de facto parent remedies section. The new definitions include introduction of nomenclature such as “child-parent relationship,” “ongoing personal relationship,” “legal decision-making authority,” and “parenting time and responsibility.” Although “custody” and “visitation” still appear, their prominence is much reduced. This is consistent with the mandate and recommendation to reduce biased or emotionally charged wording. The list of factors for allocating parenting time and responsibility for a child are split between seven mandatory factors and seven discretionary factors. Many have a distinct focus on child developmental and interpersonal relationship needs. The draft statute also includes provisions for granting relief, including custody, visitation, or contact rights, to persons having a “child-parent relationship” or an “ongoing personal relationship” with the child. Courts would even have authority to grant these forms of relief without the need to find parental unfitness or exceptional circumstances.
The recommendations approved by the Commission are very extensive. Fortunately, they are summarized in 10 “guiding principles” found at the beginning of the Executive Summary. The Commission’s recommendations include the proposed draft custody statute, no presumed schedule of parenting time, more judicial training, use of non-discriminatory and gender neutral terms, expanded ADR processes incorporated into court procedures, the need for a state-wide and rule-based expedited/emergency hearing procedure, required parenting plans in litigated cases, and further exploration of a Maryland Family Court.
Perhaps more controversial are the last two sets of recommendations, which relate to the establishment of a civil right-to-counsel for parents in custody cases, and of a clear statewide policy regarding mediation in cases involving domestic violence. Indeed, mediation in cases involving domestic violence is one of the three areas where unanimity ultimately was unachievable within the Commission. The other two are whether to have a presumption of joint custody and the appropriate standard of proof required when a parental disability affects a custody determination.
Although much work remains in order to implement the Commission’s recommendations, including passage of a custody statute, Maryland parents surely owe a huge debt of gratitude to the members of the Commission and the many volunteers who helped this massive project along the way. I heartily recommend that every professional working with separating or divorcing families review the Final Report, and discuss it with their clients and colleagues. The more attention this effort gets, the sooner and more likely Maryland residents will see the benefits from implementation of the Commission’s recommendations.
(A special thanks this month to Delegate Kathleen Dumais, who generously helped me better understand some of the many elements of the Commission’s Report).
© 2014 by Hadrian N. Hatfield
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