Maryland lawmakers will again consider bills that would make changes to the procedures for deciding custody in divorce cases. (The Daily Record/Archive Photo)
For the third consecutive year, child custody will be a key focus of family law-minded lawmakers in the upcoming General Assembly session.
The proposed legislation would codify the standards that a judge considers in custody matters – factors that are currently established in case law but not in law – and codify court standards for the qualifications of court-appointed custody evaluators.
This year, lawmakers and those familiar with the bills are hoping the two measures will pass thanks to a more collaborative approach between the drafters of the bills and those who oppose or question parts of the proposed law.
Sen. Chris West, R-Baltimore County and co-sponsor of the child custody review bill, said the bill seemed like a “no-brainer” but was facing opposition from the Maryland judiciary.
To help pass the bill, West said, the measure's authors modeled the legislation after the newly adopted Maryland Judiciary rule, which dictates the type of training child custody evaluators should receive.
“The theory of this bill is that the evaluator who will make recommendations to the judge should have the same training as the judge,” West said in a telephone interview.
But members of the Maryland judiciary have opposed that idea in recent years, testifying that the bill would have a number of unintended consequences, including significant delays and obstacles for applicants in obtaining protective orders.
“This bill would require the court to appoint custody evaluators in these cases because they involve 'physical, sexual, or psychological abuse of an intimate partner or former intimate partner,' as outlined in the bill,” the Maryland Judicial Conference of the Maryland Judiciary wrote last session as a witness. “This mandate is unworkable given the volume of cases… In short, this bill is inconsistent with the mandate of the judiciary to provide fair, efficient and effective justice for all.”
“It levels the playing field for everyone, everyone involved — both pro se litigants and attorneys,” family law attorney Michell Smith says of the custody factors bill. (Submitted photo)
Meanwhile, the bill to codify the factors a judge considers in custody cases has faced its own resistance in recent years.
West said the bill stalled last year because it made no presumption about which parent should be awarded custody of the child. Rather, opponents of the bill are of the opinion that the presumption of joint custody should apply.
“Why are we asking the courts to assume something? “The facts should prevail,” West said, noting that which parent is awarded custody of the child should depend on the facts of the individual case.
The Custody Factors Act is intended to help self-represented Maryland parents of children who may not understand what cases they need to consider and what factors they must prove in court to help the judge make the right custody decision, said Legislative Committee Co-Chair Michelle Smith of the Maryland State Bar Association and a council member of the MSBA Family Law Section.
“It levels the playing field for everyone, everyone involved — both pro se litigants and attorneys,” Smith said of the bill.
Smith, who works at Annapolis-based Trainor, Billman, Bennett, Milko & Smith, LLP, said the MSBA Family Law Section “thought quite a bit” between legislative sessions about the idea that there should be a presumption of shared custody between the parents. While the MSBA opposes the presumption of joint custody, Smith said her caucus may need to consider the position of some lawmakers who want the presumption of joint custody.
“This is a fairly complex legal analysis to undertake because the standard in Maryland has always been the best interests of the child without any presumption, rebuttable or not,” Smith said. “This is definitely one of the more weighty issues that I think will come up in this session.”
Still, West said the bill is necessary and would make it easy for someone to print out a copy of the law and learn what custody factors the judge will focus on, derived from numerous court decisions.
“The average layperson who comes to court has no idea what these court decisions are, how to look them up or find them, and they kind of go about it clueless, so they don't know exactly what the judges are going to be thinking about and when.” meet,” said West. “They can state their case, but if they leave out something critical or focus on something that isn’t part of the required criteria, they’re probably not doing their best.”
“It’s like a consumer protection law,” West added, pointing out that in up to 75% of custody cases, at least one spouse lacks legal representation.
Family law-minded lawmakers are also considering possible legislation that would allow a court to award certain personal items used during family time to a party, Smith said.
Although there is no sponsor yet, Smith said the issues “seem small and insignificant but can have an impact on families.”
Regarding the custody bills, Smith said she hopes the MSBA Family Law Division and lawmakers can work with opponents of the bills.
“We hope we can work with these opponents to create something that satisfies everyone, works and is in the best interest of the children of Maryland,” Smith said. “We hope to take a collaborative approach rather than continuing to oppose each other.”
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