What is a De Facto Parent versus a Third Party for Purposes of a Custody Case?

In most cases, only the biological parents of a child have a right to petition for or modify custody. But there are situations that can arise in which other adults in the child’s life may be a good custodial fit instead of, or in addition to, the biological parent. When those circumstances arise, Maryland recognizes different avenues for individuals who are not the biological parent to have standing in a custody case. This blog explains the two ways a non-biological adult has standing to participate in a custody case of a child, and how to prove those standing requirements in court.

The two avenues to achieve standing in a custody case where the child is not biologically related to the party is (1) the establishment of de facto parentage, or (2) if de facto parentage cannot be proven, the party can act as a third-party intervenor and prove the unfitness of the legal parents or exceptional circumstances.

To prove de facto parentage, Maryland requires the alleged de facto parent to show that s/he has met four factors, which were established in Conover v. Conover. There is a high burden on the party seeking standing because of the great impact that becoming a de facto parent has in our legal system. If a judge makes a finding that a party is a de facto parent, that party will have the same rights and legal standing as a biological parent would.

The four factors that must be shown by the party seeking standing are as follows: (1) the party must prove that s/he resided with the children for a certain period. This should go beyond an occasional overnight or quick visit. (2) the person must show that s/he has performed parental functions for the children to a significant degree. Parental functions often include taking responsibility for the children’s education, providing support for the children’s development, ensuring the children’s basic needs are met, and much more. (3) the party must demonstrate that there is an established parent-child bond with the children. (4) A party must show that the legal parents have consented to the de facto parentage and that the biological parents fostered the parent-child relationship between the de facto parent and the child. The consent by the biological parents can be expressed, or implied. If all four of the factors are met, the de facto parent will have the same rights as a biological parent would when it comes to standing. Following that determination, the court would then proceed to a typical custody determination by looking to the best interests of the child.

For interested parties who cannot prove de facto parentage, but are seeking to intervene in a custody case, that party must prove the unfitness of both legal parents or show that there is an exceptional circumstance that warrants the award of custody in their favor or prove both factors. The court, in In re Adoption/ Guardianship of H.W., has defined an exceptional circumstance as one “that would make parental custody detrimental to best interests of the child.” The standard of proof is preponderance of the evidence, meaning that the greater weight of the evidence points to the unfitness of the parents, or, that an exceptional circumstance has arisen.

Ultimately, a court’s custody determination can be one of the most influential decisions in a child’s life. While the court has acknowledged the right that biological parents have in the control of custody, it has also recognized that in some cases, the most “fit” person to have custody is not related by blood. To ensure that our legal system protects the children in those situations, de facto parentage and third-party intervention are mechanisms that should be used, if applicable.

If you are involved in a complicated situation in which you believe you are a de facto parent, you want to intervene because it seems the parents are unfit, or, if someone is seeking custody of your children that is not entitled to do so, contacting an experienced family law attorney can be instrumental to the success of your case. Call Markham Law Firm today to learn more about your rights and what you are entitled to regarding custody.

Exploring Parent Coordination in Cases of Coercive Control or Abuse

Parent coordination is a process designed to assist separated or divorced parents in resolving conflicts related to co-parenting and child custody outside of court. It is most often used in high-conflict cases, where the parties are unable to communicate effectively and reach shared decisions in the children’s best interest. Parent coordinators are either mental health professionals or attorneys, who have specialized training to assist parents with communication and reduce conflict in many cases.

Sometimes as the neutral third party, they can weigh in to break the impasse on certain issues so that decisions can be made more quickly than in court or formal mediation, however, its appropriateness and efficacy in situations involving coercive control or abuse are subject to scrutiny and debate. Let's delve into the complexities of parent coordination in these challenging circumstances.

Understanding Coercive Control and Abuse:

Coercive control refers to a pattern of behavior used by one partner to dominate, intimidate, and manipulate the other in an intimate relationship. This behavior may include isolation, threats, surveillance, and psychological manipulation, aimed at establishing power and control over the victim. Abuse, whether physical, emotional, or psychological, can have devastating effects on victims and their children, perpetuating cycles of trauma and dysfunction.

Oftentimes, the depths of the abuse are not fully brought to light in an initial custody or divorce proceeding. Many people will try to avoid a protracted and costly court case hoping that once the case has settled the acrimony between the parties will subside. While this is generally the experience most parents will have, this is not true for high-conflict cases.

Challenges in Parent Coordination:

In cases involving coercive control or abuse, parent coordination faces significant obstacles that may compromise its effectiveness:

1. Power Imbalance: Coercive control dynamics often involve a profound power imbalance between the parties, with one exerting undue influence and control over the other. This power dynamic can undermine the ability of the victim to advocate for his/her interests and make informed decisions during parent coordination sessions.

2. Safety Concerns: Safety is paramount in cases of abuse or coercive control. The presence of ongoing abuse or the threat of retaliation may create an environment of fear and intimidation, making it difficult for victims to engage fully in the parent coordination process without risking further harm.

3. Manipulative Tactics: Perpetrators of coercive control may use parent coordination as a platform to perpetuate their abusive behavior, employing manipulative tactics to maintain control over the narrative and undermine the credibility of the victim. This can further exacerbate power imbalances and impede the pursuit of equitable outcomes. 

Critiques of Parent Coordination in Abuse Cases:

Critics argue that parent coordination may inadvertently perpetuate harm in cases of coercive control or abuse in these 3 ways:

1. Minimizing Abuse. Parent coordination processes that prioritize cooperation and conflict resolution may overlook or minimize the presence of abuse, failing to adequately address the safety and well-being of victims and their children.

2. Reinforcing Victim Blame: By emphasizing collaboration and shared decision-making, parent coordination may inadvertently reinforce societal norms that place responsibility on victims to mitigate conflict and accommodate the needs of their abusers.

3. Exacerbating Trauma: For victims of abuse, engaging in parent coordination sessions may retraumatize them, triggering distressing memories and feelings of vulnerability. The pressure to engage with an abusive ex-partner in a cooperative manner can compound the trauma and undermine the victim's sense of agency and autonomy.

On the other hand, those in support of Parent Coordination in cases involving abuse or coercive control would argue that a parent coordinator acts as a buffer for communications and can later become a witness in court if necessary. These sessions are often done remotely now, thereby alleviating the need for in-person interactions, and the parent coordinator can monitor the sessions and can step in to minimize the power imbalance or minimize the impact of negative behaviors by insisting on respectful communication and enforcing equal opportunities for both sides to be heard during the process.

In the end, there is a very delicate risk/reward analysis that each parent must discuss with counsel to decide if parent coordination is appropriate for that particular case. Remember, the primary goal is to provide a stable and supportive environment for your child. To further understand the pros/cons of this process, please contact our office to speak with a dedicated family law attorney. Our group of highly experienced attorneys is ready to help answer your questions and guide you through this process.

Navigating Custody Agreements in Maryland

In any custody dispute or divorce involving minor children, the goal is to negotiate a comprehensive written agreement that resolves all issues related to physical and legal custody until they emancipate. Unfortunately, when your co-parent is not adhering to the terms of your custody agreement, you may need to re-engage a family law attorney to help you address the situation.  Here are the most important considerations to take into account when deciding to take further legal action.

Understanding Custody Agreements in Maryland

In Maryland, a custody agreement is a legally binding document that outlines the terms of legal custody, the weekly time-sharing schedule and holiday arrangements, as well as the responsibilities of each parent. These agreements are also referred to as a Parenting Plan and are typically incorporated into a Court Order.  These agreements are put in place to ensure the children’s best are met and to provide clear guidelines for both parents.

Steps to Take if Your Coparent Isn't Following the Custody Agreement

1. Document the Violations

Start by meticulously documenting each instance where your coparent violates the custody agreement. Note the dates, times, and nature of the violations. Keep all emails/texts and a calendar and/or log that can later serve as crucial evidence if you need to take legal action. Note that in Maryland you may not record audio of your coparent without his/her permission.

2. Communicate

Try your best address the issues as they arise, but not when the child is present. Sometimes, violations occur due to misunderstandings or logistical issues that can be resolved through communication. Keep these discussions civil and focused on the best interests of your child.  If you are unable to have productive conversations in real time, then use email or text when you are calm and can express yourself clearly without being critical or antagonistic.  If you need help filtering your messages, you may consider hiring a parenting coach to help improve your communication.  Always remember these messages might later be read in court, so be respectful and don’t’ ramble.  

3.  Refer to the Custody Agreement

Review the custody agreement carefully to ensure that you have a clear understanding of its terms. This will help you reference specific provisions when discussing the matter with your coparent or a legal professional.  In the event circumstances have changed now requiring a revision of the Parenting Plan, or if there is a dispute in how you interpret the agreement, most agreements require the parents to attend mediation before filing in court. 

4. Consult with a Family Law Attorney

If you are unable to address your issues on your own, consult with a family law attorney. An experienced attorney can provide legal advice tailored to your situation and help you understand your rights and options.  They can help prepare you for mediation and provide valuable information as to the pros/cons and costs of the court process so you can make an informed decision before filing anything in court.

5. Consider Mediation

Even if your Parenting Plan does not require mediation before filing in court, this alternative dispute option is an effective way to resolve disputes without going to court. A neutral third party can help facilitate discussions and negotiations between you and your coparent to reach a mutually agreeable solution. 

6. File a Motion for Contempt 

If your spouse continues to disregard the custody agreement, you may need to file a motion for contempt with the court. This legal action requests the court to enforce the agreement and hold them accountable for violations. Your documentation of the violations will be essential in this process. Contempt requires willful violation of an agreement and may result in limited remedies, including an award of attorney's fees.

7. Request a Modification of the Custody Agreement

If the current custody arrangement is no longer feasible or in the best interest of your child, you might consider requesting a modification of the custody agreement. This involves going back to court and demonstrating that a change is necessary due to substantial and material changes in circumstances.

Remember, the primary goal is to provide a stable and supportive environment for your child. Please contact our office to speak with a dedicated family law attorney. Our group of highly experienced attorneys are ready to help answer your questions and guide you through this process.

Understanding Brief Focused Assessments in Custody Cases

In contested custody cases, courts may order evaluations to assess the well-being of the child and determine custody arrangements. One such evaluation method gaining prominence is the Brief Focused Assessment (BFA). Let's delve into what BFAs entail, their purpose, and how they impact custody proceedings.

What is a Brief Focused Assessment?

A Brief Focused Assessment is a specialized evaluation method used in custody cases to gather targeted information about the family dynamics, parental capacities, and/or the child's needs. Unlike comprehensive psychological evaluations or custody evaluations, BFAs focus on specific issues or concerns raised by the court or the parties. These assessments are designed to be more efficient and cost-effective, providing timely insights without the extensive time commitment of traditional evaluations.

Purpose of Brief Focused Assessments:

The primary objective of BFAs is to provide the court or parties with relevant and actionable information to aid in custody decision-making. BFAs must have a referral question, meaning a specific BFA may explore issues such as allegations of abuse, substance misuse, parental alienation, or the child's particularized needs. By honing in on key areas of contention, BFAs streamline the evaluation process and help courts address pertinent concerns promptly and skip over less important factors. By way of example, if the appropriateness of each parent's home is not at issue, a home visit may not be conducted.

Process of Conducting a Brief Focused Assessment:

1. Initial Stage: The evaluator meets or speaks with the involved parties, and/or the attorneys, to discuss the purpose and scope of the assessment. They clarify expectations, gather background information, and identify the specific issues to address.

2. Data Collection: Through interviews, observations, and collateral information from relevant sources (e.g., therapists, teachers), the evaluator gathers pertinent data related to the identified issues. This phase may involve home visits, and reviewing documents, and is dependent on the issues being explored.

3. Analysis and Report Preparation: The evaluator synthesizes the collected information. They compile their findings into a concise report, outlining recommendations for custody arrangements or interventions as deemed necessary.

Benefits of Brief Focused Assessments:

1. Targeted Evaluation: BFAs focus on specific issues, avoiding the need for comprehensive assessments unless warranted, thus saving time and resources.

2. Timely Completion: By promptly addressing key concerns, BFAs expedite the custody process, reducing prolonged legal battles and minimizing the emotional strain on families.

3. Customized Recommendations: The focused nature of BFAs allows evaluators to tailor recommendations to address the unique disputes of each case, promoting child-centered outcomes.

4. Court Guidance: BFAs provide courts with valuable insights and expert opinions, aiding judges in making informed custody determinations based on empirical data and professional expertise.

Brief Focused Assessments serve as valuable tools. They may aid in settlement, or they may aid the judicial officer in determining the best interests of the child. If you are unsure whether a BFA may be right for your case give our office a call at 240.396.4373.

Using Maryland's Child Abduction Prevention Act in Interstate and International Family Law Matters

The Maryland Child Abduction Prevention Act took effect in Maryland on October 1, 2023. It is codified in the Maryland Annotated Code, Family Law Article, Title 9.7 (new). The Act is consistent with the Uniform Child Abduction Prevention Act (“UCAPA”), which has been adopted in its entirety or with modest amendments in sixteen states, including two surrounding jurisdictions (the District of Columbia and Pennsylvania). In 2024, UCAPA was introduced as legislation in five additional states.

Maryland’s UCAPA addresses important facets of assessing and preventing the risk of international and domestic child abductions. Abduction is defined as the wrongful removal or wrongful retention of a child. The Act establishes a comprehensive framework to impose abduction prevention measures at any time before or after a child custody determination if the court finds a credible risk of child abduction.

Child abduction prevention has been an important topic, particularly with the increasingly transient nature of families. Many family law practitioners routinely advise their clients about the risk of child abduction and the preventive measures custodians can take. Separating families often memorialize preventive measures in their written settlement agreements. Maryland’s UCAPA allows judges to be proactive rather than reactive by providing a mechanism for swift court intervention to minimize the risk of child abduction.

Maryland’s UCAPA provides helpful guidance on how and what to address in largely non-routine issues. Attorneys and litigants now have guidance on what the court will consider so that evidence can be streamlined and presented in a useful way. Judges will review objective facts and apply the risk factor guidance (based on years of research) set forth in UCAPA. The Act’s factors-based analysis is fair in its approach to both foreign and non-foreign parties. Courts will retain discretion in what remedies to impose depending on the facts of the case.

Importantly, Maryland’s UCAPA addresses both domestic and international child abductions. The Act permits a Maryland court to address a petition if it has custody jurisdiction or, if there is no custody jurisdiction in Maryland, under the temporary, emergency jurisdiction provision codified in the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).

Bringing awareness to the risk of child abduction and available remedies is essential in preventing child abductions. Adopting the Maryland Child Abduction Prevention Act brings desired clarity to the court process and to litigants who have genuine concerns about international and domestic child abduction.

The Act has only been in effect in Maryland for a few months. It may take some time before courts routinely use the Act to address child abduction matters. Notably, the preventive measures set forth in the Act are not exhaustive. Petitioners may request other remedies that may be available to prevent abduction. Families who are concerned about preventing or deterring child abduction should seek advice from an experienced family law practitioner. Contact our office at 240-396-4373 to schedule a consultation. 

Article originally published in AFCC Maryland Chapter February 2024 Newsletter. Click here for full newsletter. 

Leah Ramirez

Leah Ramirez, JD is a Principal of Markham Law Firm. She represents clients in domestic, interstate, and international family law matters.

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What is Collaborative Law?

When you think of a divorce or custody case, you probably think of a contentious courtroom drama. However, there is a lesser-known, family-centric process to resolve divorce and/or custody. This process is known as Collaborative Law.

What Is Collaborative Law?

The Collaborative Law process is a multidisciplinary approach that utilizes professionals in relevant areas such as law, accounting/finance, and psychology/social work to consult with clients on various objectives and outcomes. The Collaborative process is party-focused with professionals offering advice and the parties making the decision. This process is intended to help alleviate any anger and resentment between parties and facilitate a positive, healthy relationship following the divorce. The professionals and parties work collaboratively to achieve the goals of the family.

How Does Collaborative Law Work?

            Many think of the first step in divorce or custody as filing and serving “papers,” aka initiating a lawsuit against your spouse/partner. In Collaborative Law, your case is kept out of the courtroom. Rather, the first step in Collaborative Law is to establish your goals and interests with your attorney. These goals and interests will guide the process and ultimately help you reach a resolution in line with those goals and interests. In the beginning, you and your attorney will determine which professionals can assist with your matter, including, if applicable, a parent coach and a financial neutral. A parent coach is a mental health professional who will help you execute a parenting plan that is in the best interests of your child(ren) and your family. A financial neutral is a certified financial professional that aids you in reaching an agreement on the division of your assets and property. The process develops through a series of meetings with the coaches, your attorney, and the team. Team meetings consist of all professionals and parties and is a forum designed to facilitate transparency between the parties and promote open discussion on issues and options with professional guidance. The process ultimately concludes with the execution of a global agreement made for and by you.

Why Choose Collaborative Law

            The family court system is designed to be adversarial. As such, divorce/custody litigation is painful, destructive, and costly to families. Collaborative Law circumvents the adversarial process and helps families remain whole and resolve their divorce/custody matter with their interests at the forefront. By working with professionals in various disciplines, you are well-equipped with the resources and information to make the best decision for your family. Unlike in Collaborative Law, in litigation, a judge, who has limited information on you and your family, would make those decisions for you.

Our attorneys are trained and experienced in Collaborative Law, so if you are interested in engaging this process, please contact us at 240-396-4373 and we are ready to assist you.

Can My Child Testify in My Custody Case?

In both Maryland and the District of Columbia, the Court looks at several factors to determine a custody arrangement in the best interests of the child. In both jurisdictions, the child’s preference is a factor, which is most relevant when the child is old enough and mature enough to state a thoughtful preference. There is no specific age at which a judge will consider a child’s preference; it is handled on a case-by-case basis.

Does this mean children testify in custody cases?

The short answer is generally, no, a child will not take the witness stand during a custody trial. Judges, practitioners, and experts generally agree that bringing the child into the middle of the conflict between the parties can emotionally impact the child. Further, children are susceptible to coaching and undue influence.

 What are other ways to show a child’s preference in a custody case?

There are other ways to introduce evidence of the child’s preference:

1. In camera interview: a judge may, in his or her discretion, decide to interview the child in private, upon either party’s request or the request of an attorney who has been appointed for the child. The interview will usually occur once, at the time of the trial, and can be recorded. If it is not recorded, the judge will place a summary on the record. The interview is therefore not confidential.

2. Custody Evaluation: an expert professional may conduct an investigation which can include interviewing the child, interviewing both parties, observing the child with each party, speaking with collateral witnesses, and reviewing documents such as medical/school records and party communications. After the investigation, the evaluator may submit a report to the court and may testify at the custody trial regarding his or her recommendation.

3. Child Advocate Attorney: A child advocate attorney advocates for the child’s wishes. A child advocate attorney treats the child in the same way they would treat an adult client, which means they must follow the client’s instructions. This form of representation is only appropriate for older children who are deemed to have considered judgment.

4. Best Interest Attorney/Guardian Ad Litem: A Best Interest Attorney (Maryland) or Guardian Ad Litem (D.C.) represents the child’s best interests. They are required to tell the court if the child has stated a preference, but ultimately can make recommendations in the child’s best interests which may be different than the child’s wishes.

5. Child Privilege Attorney: A child privilege attorney (“CPA”) has the limited function of determining whether a child’s confidential or privileged communications with his or her mental health professional should be waived. There exists a strong preference for preserving confidentiality. However, if privilege is waived, the privileged information may be made available to the court through records or permitting a mental health professional to testify. A child’s parent cannot waive the child’s privilege on the child’s behalf.

If you have any questions about introducing your child’s preference in a custody case, please contact Markham Law Firm at 240-396-4373 to setup a consultation.

Legal v. Physical Custody Explained

One of the most challenging parts of separation and divorce is determining the most appropriate custody arrangements for your children. During this journey, parents must find a way to put their children’s interests first to determine the best custody schedule.

There are two types of custody: legal and physical. Legal custody, also known as “decision-making authority,” relates to a parent’s right and obligation to make decisions with lasting impact on their children. Such topics include education, religion, and medical care. Legal custody may be joint, sole, or have a parent designated as a tie-breaker when the parents cannot cooperate.

Physical custody, also known as “access” or “parenting time,” describes where the children will live. Included in this determination is the right and obligation of a parent to spend time with the children, provide a home for the children, and to make the everyday decisions that arise. In contrast, the children are in the care of that parent. Physical custody may be shared/joint or sole.

Because no one knows your family better than you, parents are encouraged to make physical and legal custody decisions by reaching a mutual agreement. However, if they cannot reach agreement, Maryland courts are equipped to resolve custody matters.

A court favors neither parent and is bound by what is in the children’s best interests. In order to make this determination, the court will consider several factors to determine what arrangement is in the children's best interest. Such factors include the parents' fitness, the parent's ability to communicate, and the geographic proximity of the parents, among many other relevant factors. Cynthia Callahan & Thomas C. Ries, Fader’s Maryland Family Law § 5-3(a) (6th ed. 2016).

Custody matters are some of the most challenging cases for parents, attorneys, and judges alike. If you want to pursue a custody agreement or seek legal representation in your divorce, contact our office at 240-396-4373 today.

Child Custody and Relocation: What You Should Know Before Packing Your Bags

Are you thinking about moving, but worried how this might affect your custody agreement? 

For many parents, relocating to a new place presents new and exciting opportunities. Whether it would allow you to seek a better job, or the move would put you closer to extended family, your reasons for moving may be completely valid. However, when this move would create a conflict with your custody arrangement, there are important factors you must first consider. 

1. First things first – are you planning to move across the street or across the country? There is a big difference between moving somewhere in driving range versus somewhere that requires a plane ride to get there. This is because regardless of whether your custody arrangement was established through a separation agreement or by a custody order from the court, you must follow its terms. 

2. Modifying your agreement – But what happens if you want to move to a different state, or maybe even to a different country? When relocation would absolutely make your current agreement or order impossible to follow, you will have to have the arrangement modified. While this can be done through a consent agreement with the other parent, you may have to seek a court order regarding custody. 

3. In analyzing a relocation request, a court will consider many things, including whether the relocation establishes a material change in circumstances to trigger modification of custody, and whether relocation is in the best interest of the child. Courts use this high standard as a way to avoid unnecessary disruption for the child. As part of the best interest analysis, courts will generally consider the following: 

   • What are the reasons for the move? Are you moving to pursue an advanced degree or for employment reasons?

     • Do you have a plan for where you wish to move? Have you looked into neighborhoods, or schools for your child? 

     • If you are the relocating parent, are you able to meet your child’s needs on a day to day basis? 

     • What is your relationship with your child? And how does that compare to their relationship with the other parent?

     • How old is your child? 

     • Will relocation enhance the general quality of life for both you and your child? 

It is important to note however that while a court may find that relocating your child is not in their best interest, they cannot restrict you from moving alone. Rather, the court can amend the custody order so that your child remains in-state with the non-relocating parent.  If you have questions, we can help. Call our office at 240-396-4373.

Divorce and Custody Agreements: How to Navigate the Coronavirus Quarantine

            How do you successfully co-parent when you are also forced to quarantine? The spread of COVID-19 has divorced parents asking a lot of questions about how to stay safe and practice “social distancing” while also following their custody agreements. Here are some good tips.     

Stick to the agreement

While this may not be easy, try to follow the terms of the agreement as much as possible. These are stressful and changing times for everyone, which is why maintaining some form of stability can benefit both you and your children.  

Prepare for flexibility 

 With schools closed and activities cancelled, there may be certain aspects to your agreement that actually require change. That being said, both parents should be prepared to be flexible. Communication is essential. 

For example, if pick-up and drop-off typically takes place at your child’s school, you may want to establish an alternative location or agree to some other form of exchange. Regardless, remember that this must be a mutually agreed upon decision that works for all parties involved. 

Be safe

Given the contagious nature of the virus, it is important to avoid social contact if someone in your family presents with symptoms. This may cause disruption to your agreement, however, ensuring that the rest of your family is safe should remain a top priority. Fortunately, there are no shortage of virtual hangout applications that allow you to remain in isolation while also getting facetime in with your kids! 

Don’t forget the priorities 

Remember, it should always be about what is in the best interest of your children.