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Recent Decisions Concerning Family Law

August 9, 2012

By: Ferrier R. Stillman

The Maryland General Assembly and Maryland Appellate Courts made several important decisions in recent months concerning family law. Here are the highlights of those decisions:

Same Sex Divorce in Maryland is Legal

Maryland's highest court has held that same sex couples who were married in another state where same sex marriage is legal can get divorced in Maryland. This is despite the fact that same sex marriage in Maryland is not currently permitted.*

The legalization of same sex marriages in some other states had put Maryland same sex couples who were married in such states in legal limbo when it came to divorce. Often, they could not divorce in the state where they were married because they are not residents of that jurisdiction, and they could not get divorced in Maryland because Maryland does not allow same sex marriages.

Recently, the Maryland Court of Appeals held that Maryland courts can grant divorces to same sex couples who had been married in states that recognized the legality of their marriage.

*It should be noted that the Maryland General Assembly, in its 2012 session, passed a law, signed by the Governor, that will make same sex marriage valid under Maryland law beginning in January 2013. But, opponents have petitioned that law to referendum. So, for the law to stay in effect, it must be upheld by the voters in an election to be held in November 2012. 

Authority of Child's Best Interest Attorney Restricted

The Maryland Court of Special Appeals ruled to limit the authority of children's best interest attorneys. (These are lawyers appointed by the Court in custody disputes to advocate for what custody arrangement is in the minor children's best interest.) The Court ruled that a child's best interest attorney may not serve as a "tiebreaker" to decide future disputes between the parents regarding custody and visitation. If the parents themselves cannot resolve such arguments, they must seek redress from the courts, not the child's former or current best interest attorney.

Complete Removal of Information from Public Websites Concerning Peace and Protective Orders

This 2012 Maryland statute specifies that, in domestic violence cases, all parties' names, case numbers, or references to the proceeding must be removed from the judiciary's public website. This is an attempt both to give more protection to victims of domestic violence and to shield people against whom a protective order was sought, but not obtained. 

Extension of Duration of Interim and Temporary Peace and Protective Orders

Under this new law, if an interim or temporary order will expire on a day the court is closed, the order is effective until the next day that the court is open. At that time, the court will hold a final or temporary peace or protective order hearing.

Child Abuse and Neglect - Alternative Response

This new law allows an alternative by Child Protective Services to an investigation or formal determination as to whether abuse or neglect has occurred when a report of such abuse or neglect is made to CPS. The alternative response is only allowed in cases where there is a low risk of abuse or neglect. Such alternatives include: a) evaluating the risk of harm to the child; b) assessing the risk of future abuse or neglect; c) family strengths and needs; and d) a referral for necessary services, such as counseling or parenting classes.

The alternative response is NOT allowed in cases where there's an allegation (1) of sexual abuse; (2) of abuse or neglect that occurs in an out-of home placement; (3) that results in death or serious physical or mental injury; (4) that is suspected to have been perpetrated by an individual previously identified as responsible for abuse or neglect; or (4) that the suspected individual has had a report diverted to the alternative response program within the previous 12 months or two such reports within the previous 24 months.

Child Support: Suspension of Payments and Accrual of Arrearages for Incarcerated Obligors

The 2012 General Assembly also passed a law ordering that child supports payments are not past due, and prohibits the accrual of arrears, while the obligor is incarcerated for eighteen consecutive months, is not on work release, does not have sufficient funds to make payments, and did not commit the crime for the purposed of becoming incarcerated or impoverished. This period of suspension continues for sixty days after release from incarceration. A major reason for this was to not have convicted felons starting out upon release in debt. It is believed that will increase the likelihood of more consistent paying of child support when they are released from prison. It also frees up resources that are better spent by child support enforcement agencies obtaining payment from obligors who are more likely to actually pay arrearages than are newly-just released convicts are.

If you have any questions, or would like more information on any aspect of Maryland Family Law, please contact Ferrier R. Stillman at 410.752.9731.

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