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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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
Custody Evaluations: Are they Worth It?
Custody evaluations are great tools that can be utilized in the context of a contested custody case, but they can be cost prohibitive. The uses and benefits tend to outweigh the cost, which is why attorneys continue to request them. This article addresses "private" custody evaluations, which are privately retained by the parties, or are court-appointed based on one party’s motion or a joint motion. It is important to remember that some courts provide free custody evaluations, so in the jurisdictions that do so, they are highly sought after.
What can custody evaluations be used for? Most simply, they are a single place to find information, and more importantly, a single report or witness to present as evidence or testimony to the judge. In terms of trial, it is much more efficient to present the evaluator and his or her report, rather than parading a child’s entire network of family, friends, and teachers through the courtroom.
Custody evaluators also have the luxury of taking time to see how all the different pieces of information fit together, and ask follow up questions to get the full picture, and can present the information from a neutral, third party perspective. Judges, on the other hand, are forced to take the evidence as presented, and hope that the system of direct and cross examining witnesses has done enough to minimize any bias that exists in the witness.
Custody evaluations are a full spectrum analysis, involving multiple issues, many interviews, and many hours to provide as complete an evaluation as possible. The process takes approximately fifty hours over the course of three to six months, at minimum. For cases in which the parents are farther apart in their beliefs of the child’s best interests, the process could take longer. Full custody evaluations can cost approximately $20,000 on the low end, but can easily be more costly. The evaluation can be quite costly, but the result can often help determine the direction of the case.
A second option for cases that have smaller, more limited questions regarding the children is a brief focused assessment, or specific issue evaluation. Topics that tend to lend themselves to a brief focused assessment include the child’s attachment level to each parent, relocation research, determining the child’s developmental level, and determining the child’s wishes. A brief focused assessment regarding the child’s wishes is a unique way to present the child’s desires without putting the child through the ordeal of testifying in court.
These brief focused assessments can be completed in as few as four to six weeks, and cost closer to $5,000. These assessments are faster and less expensive because they are so narrowed in scope that the amount of people the evaluator must interview is significantly decreased, so the process moves much quicker. However, the brief focused assessments provide the same benefits to a judge, simply on a much more limited scale.
Custody evaluations and brief focused assessments are performed by mental health professionals such as psychologists, psychiatrists, licensed clinical marriage and family therapists or licensed certified social workers-clinical (LSCW-C).
In sum, despite the hefty price tag, it’s safe to say that custody evaluations, in one form or another, will continue to be used in family practice. Their benefits and uses are significant, and typically justify the associated costs.
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