What is a DeFacto Parent and what does it mean?

       Although slow on the uptake, Maryland has finally gotten on board with giving de facto parents custody and visitation rights with their (non-biological) child. Let’s break it down – what is a “de facto” parent? A de facto parent is a person who in all senses acts, appears, and is understood by the child, the parent, and society at large to be the child’s parent. However, there is always a catch – here it is that the parent is not actually related to the child, biologically, or legally such as through adoption. Previously, Maryland held that in such circumstances, the biological or adoptive parent had absolute rights over the child in terms of custody and visitation, and could cut off access to the non-related parent.

            Imagine a non-married couple of 5 years gives birth to a beautiful baby girl. The child is biologically related to one parent, but not the other. They name the child with both last names, send out birth announcements together, and hold themselves out in the community as equal parents, such as going to the parent teacher conferences together, sharing transportation of the child to events, and playdates, and sharing in the child’s care at home with cleaning, mentoring, education, and homework, etc. For some reason, when the child is 7 years old the relationship between the parents sours, and biological Parent A moves out, taking the child. Non-biologically related Parent B seeks to continue the relationship with the child, but is blocked by Parent A.

            Parent B can seek to establish de facto parent status, which would result in a court Order to allow Parent B visitation and/or custody of the child, just as Parent B would be able to do if s/he was a biological parent.

            Parent B must first establish that s/he satisfies the 4-factor test:

        1.    Parent A (the biological parent) consented to the establishment of the parent-like relationship between the child and Parent B;

           2.     Parent B and the child lived in the same home;

           3.     Parent B assumed the obligations of parenthood without the expectation of financial compensation from Parent A; and

        4.   Parent B has been in a parental role sufficiently long enough to create a bonded relationship that is parental in nature.

        Once Parent B satisfies the 4-factor test, then s/he must prove that it is in the best interests of the child to have a parental relationship with Parent B. The 4-factor and best interest test is not easy to prove, though it can be done.

        Courts want to keep parents in a child’s life if that parental relationship is going to be beneficial to the child.  However, the Court will make sure that it is only awarding custody and visitation to people who are truly parents, by the intent of Parent A, function Parent B, and the intent of Parent B. Courts will be extremely careful only to award custody and visitation to a person who was truly a parent in the past and present, and intends to remain a parent in the future.

            This is a new and burgeoning area of Maryland law. The information explained here is to present the new law in Maryland, which is likely to change and evolve as cases arise.

***This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should contact an attorney to discuss your particular legal situation.***

How to Make Your Divorce as Difficult as Possible

I read somewhere that readers appreciate "How To" lists.  Since I couldn't think of one that hasn't already been done to death, here is a reverse "How to" list:

If you'd like to make your divorce as negative as possible, be sure to:

1. Bad mouth your soon-to-be-ex to anyone who will listen to you.

2. Make life changing decisions. Don't consult a lawyer. Or consult one way after the fact.

3. Try to alienate your children from your spouse. Or simply explain everything that has happened to you, and ask them to side with you or to speak to your spouse on your behalf.

4. Post detailed play-by-plays on your social media accounts.

5. Use litigation to exact revenge. Be surprised when litigation doesn't make you feel any better. Prioritize "winning," "making a point" or "the principle of the thing," over your own self-interest.

Obviously, this is an over simplification of complicated issues. Everyone loves winning, and making a point. Right?  Divorce is complex and highly emotional.  But don't do ALL, or most of these, repeatedly, and expect a positive impact on your divorce. 

Areas of Practice

We receive a number of calls on a regular basis, inquiring about the services we provide. The short answer is that we handle all areas of family law in Maryland and Washington D.C.  However, to clear up questions, we've created a new page on the website that describes our areas of practice a little more fully.  Please check it out! 

http://www.markhamlegal.com/legal-services/

Starting a business... It's a New Year!

I started this firm in 2015, and I am so proud of what it has become, and the high quality of work that we do here every day. 

One of the most unexpected things about starting my own business, is being approached by others who want to do the same.   It has been so rewarding talking to others about their (sometimes previously unspoken) dreams to start their own businesses, hearing their aspirations and talking about my experiences. 

When I’m asked “how I did it” I tell them my story.  In a nutshell, it consists of taking a leap of faith and working very hard day in and day out, with a group of wonderful women who do the same.  Then I tell them, “If I did it, you can do it too.”

A good friend of mine had been dreaming of starting her own retail business for some time.  After speaking to me about the opening of my firm for many months, she decided to expedite her plans.  She told me that I was an “inspiration” to her.  That was such an unexpected compliment that I never imagined I would receive. I am so pleased that I could motivate or inspire someone else to chase her dream and make it seem all the more attainable.  I know that I have been inspired by so many others, in the legal industry, and outside of it as well.

So, looking back on my 2015, and looking forward to 2016, I say, life is short.  Chase your dream.  If you’re thinking of starting a business, consider giving it a fair shake this year.  I wish you all the best in your endeavors!

Things I like about practicing family law, in no particular order

Things I like about practicing family law, in no particular order...

1. Helping people envision a new future for themselves. People tend to start out disillusioned and unclear on the future. I like helping them figure out next steps. 

2. Getting to know interesting people. Most of my clients are extremely interesting and I love hearing about their work, families and what makes them tick. Getting to know each client is an important step in helping them identify and reach their goals. 

3. Working with professionals who are experts in their fields. I often work with mental health professionals (social workers, psychologists, psychiatrists), accountants and financial advisors. They've receiving extensive training in areas where I've received minimal training by comparison. I love having some of their knowledge rub off on me. 

4. Problem solving. Every day I am faced with problems to solve. I love brainstorming, particularly while mediating. Are the parties fighting over how to divide up the pie? Redefine the pie. Get another pie. Or a bowl of fruit. Is it even about the pie? Or something else?

5. Every day is different. And that's an understatement.

Do one thing every day that scares you

Do one thing every day that scares you.- Eleanor Roosevelt

On April 13-14, 2016 the Montgomery County Bar Association is again sponsoring a two day training called the Rita Rosenkranz family law training. This popular program occurs every year and provides valuable information and voluminous materials to new practitioners and those hoping begin taking Family law cases. I will be speaking to the group as part of the panel, and my topic will be "Litigating Custody Cases."

Every year I attempt to set a personal goal and this year has been the "year of public speaking." My paralegal was amazed when I told her that I don't have much experience speaking to crowds. She assumed that speaking multiple times per week in front of magistrate and judges would be the same as speaking to a group. To me it certainly doesn't feel the same!

When I first started practicing law, any moment that I was in the court room, and addressing the court I was nervous and conscious of every word that came out of my mouth. Now, I am in court so often that it feels like second nature. A few weeks ago I was in court for five different hearings in five days. Yet when I speak to a crowd the old butterflies return, at least for the first few minutes. Fortunately, I'm finding that the more I speak to crowds, the fewer butterflies. 

So far, I'm enjoying my year of public speaking.  It's good to do something a little scary. That's how you grow.  Now I need to decide what to do in 2016.

2016 SuperLawyers Rising Star!

I am pleased to announce that I have been selected for both Maryland and Washington DC as a 2016 SuperLawyers Rising Star.  Actually, this is a full recap of my SuperLawyers nominations to date!

2016 Washington DC Rising Stars
2016 Maryland Rising Stars
2015 Washington DC Rising Stars
2015 Maryland Rising Stars
2014 Washington DC Rising Stars
2014 Maryland Rising Stars
2013 Washington DC Rising Stars
2013 Maryland Rising Stars
2012 Maryland Rising Stars
2011 Maryland Rising Stars

Thank you to my peers who nominated me. Whoever they may be!

Bitcoin CLE- February 4, 2016

I'm helping to plan and execute an exciting CLE in February, which is the first of its kind for Montgomery County, Maryland.   The vast majority of my peers seem to still be in the dark about virtual currencies, if they have heard of them at all.  It is not to be missed by local attorneys.

Bitcoin for Lawyers: Bitcoin, Virtual Currencies, and the New Asset Transfer Paradigm

Speaker: Andrew M. Hinkes, Esq., Berger Singerman LLP.

In this seminar you will understand bitcoin and other virtual currencies, how they function and operate, how they are regulated, how they are taxed, how they compare to other forms of value transfer, and how they do, and will impact multiple existing areas of law.  

Topics include:

-              How distributed virtual currencies actually work

-              How distributed virtual currencies are (currently) regulated

-              Virtual Currencies and Tax

-              Virtual Currencies and Real Estate Transactions

-              Virtual Currencies and Litigation

-              Impact of bitcoin on clawback/fraudulent transfer actions/insolvency proceedings

-              Future applications of bitcoin and blockchain technology

-              Digital currencies and regulatory arbitrage

Register Online: http://montbar.site-ym.com/events/event_details.asp?id=712575

Signing Documents

In my practice I often need to obtain client signatures on documents very quickly.  In litigation, they must sign under oath their pleadings (Complaint or Counterclaim, Motions, etc.) and discovery responses (Answers to Interrogatories, Response to Request for Admissions).  Once in a while a client needs to drop what he or she is doing to receive an emailed document, print it, sign it, and scan it back to me.  10 years ago it was iffy whether the client would even have ready access to a scanner.  These days, luckily, most do, which makes it easier for me.  However, I also always look for ways to make my client's life easier.  It occurred to me that there should be a way to sign a document on your phone, and of course, it turns out there's an app for that.  

I have been using Sign Easy for a few weeks now. http://getsigneasy.com/  They have an app for apple devices, web and android phones.  You pull up the document, sign it with your finger and then email yourself the document.  So far, it has been working great.  

What happens on Facebook does not stay on Facebook

I have introduced Facebook photos and screenshots as evidence in many a divorce or custody trial.  But, I have yet to meet an attorney who has successfully subpoenaed Facebook for this information.  I assume it has happened somewhere, ever, but not in my neck of the woods. Yet in my world of DC/Montgomery County divorces, Facebook contains a lot of valuable information and it's a struggle to figure out how to get it ALL in discovery.

What's significant that can be found on Facebook?  People post photos of their paramours, how they spend their money (vacations, designer stuff, you name it), and they tag their locations.  It bears on finances and judgment. Information from Facebook posts can be pertinent to alimony, child support, custody-  the full gamut. 

I have requested the content of a party's Facebook page in discovery, but the question is, what is "everything"?  I usually get dribs and drabs in response.  Every time that person "likes" an article, do I need that?  How does a person even obtain that information, assuming they want to bother to give it to me?  What about if certain posts are public and others are private?  If someone is posting privately, how will I ever know whether everything has been produced in discovery?

Have you ever scrolled the feed of a frequent user and just hit Expand, Expand, Expand?  It can be a daunting project to unravel all the posts and print or take screen shots of them all. And you still can't be sure you got it all, for example, if a post has been deleted.

When I am preparing the discovery request, I need to be concerned about tailoring it narrowly enough to make it possible for the person to reasonably respond. But I always want it to encompass everything I need.  

So... I just realized something that blew my mind a little bit.  I noticed while using Facebook, the ability to download all activity.

 And, with that, I'll be amending my discovery requests accordingly in the very near future. I'm looking forward to seeing what it yields.