Posts Tagged ‘custody’

Maryland Law Must Adapt to Same Sex Marriage

For more than ten years legislators in Maryland have kicked around the idea of legalizing same sex marriage, prohibiting same sex marriage, and providing for domestic partnerships. During the 2012 legislative session Maryland’s General Assembly passed a bill allowing same-sex marriages and the bill was signed into law by the governor. The law then went to the voters of Maryland as a referendum in November 2012 to determine if it would be upheld and it was.

However, the legalization of same-sex marriage in Maryland is only the beginning of the issue, not the end. Maryland law will need to catch up to accommodate this recent change, leaving judges in the meantime on their own to interpret and apply the statutes currently in existence to the new situations that are beginning to occur. For example, due to the current statutory definition of sexual intercourse in Maryland, sexual relations between same-sex partners, even if one of the partners is married to someone else, do not meet the statutory definition of adultery!

Maryland has recognized legal same-sex marriages performed in other states for some time; therefore it is not as if there is no legal precedence available. However a case that was recently filed in the Circuit Court for Calvert County highlights how a seemingly typical issue that often arises can become hotly contested matter, giving rise to compelling legal briefs, oral arguments, and much consideration prior to a judge’s ruling.

In the above referenced case a Calvert County judge had to issue a ruling on whether a California court order finding the non-biological same-sex partner (who was married to the biological mother of the child) to be the “presumptive parent” for the purposes of establishing custody of a child was entitled to Full Faith and Credit (valid) in Maryland. The answers seems simple because under the legal doctrine of comity a valid court order entered in one state is generally valid in another state; this is also commonly referred to as legal reciprocity. In this case however biological mother argued that Maryland law does not have a statute that recognizes a “presumptive parent”, or de facto parent, and that in order to have standing to sue for custody in Maryland the person must be the legal parent of the child or must have adopted the child. If the person is not the legal or adoptive parent of the child then they must proceed as a third-partyunder Maryland law.

The legal relevance is that in Maryland custody cases a third-party (non-parent) must prove that both biological parents are unfit or that exceptional circumstances exist before a best interest of the child analysis can even begin. In other words, you have to clear a huge hurdle before you can even be in the race. In the referenced case, biological mother’s argument was that non-biological mother could be nothing more than a third-party under Maryland law. If the judge agreed with this argument, then non-biological mother would have an additional burden of proving biological mother unfit or that exceptional circumstances existed prior to the court allowing the case to proceed to the required best interest of the child analysis. However, the Calvert County judge did not agree with biological mother’s argument and instead ruled that the California Order is valid in Maryland.

As always, we here at Delaney & Keffler, LLC will keep up with legal developments and changes in the law to help you understand, assert and protect your legal rights. Contact us today at 410-535-3476 (FIRM) or for a free consultation.

Five Myths about Divorce

1. I cannot get alimony if I committed adultery – There are many factors that the court must consider before making a determination regarding alimony such as the age of the parties, their ability to be self-supporting, their education and wage earning capacity, and health.  What led to the end of the marriage, and this is where adultery may be a factor, is only one of the factors that the court must consider along with many others.

2. I will be required to pay alimony if I committed adultery – See above, there is not one factor that carries such weight that it would automatically entitle someone to pay or receive alimony.  However one factor that carries a lot a weight on the issue of alimony issue is income.

3. I should waive child support to keep my spouse from fighting for custody – Your child is entitled to the support, both financial and emotional, of both parents.  This is your child’s right to waive, not yours.  Even if the other parent does not provide emotional support, does not exercise visitation, or is an absentee parent by all accounts, the court will still order that parent to pay child support pursuant to the Maryland Child Support Guidelines.   Although the type of custody or amount of visitation may have an impact on the actual amount of child support ordered, child custody and visitation have no bearing on whether a child should be financially supported by both parents.  Whether a parent is exercising visitation or not a child still needs food, shelter, clothing, and medical care.

4. If I move out of my marital home then I have given up my rights to it – If you are on the Deed to your home then you still own it no matter where you live; this is the case for married and non-married people alike.    If you are married, then even if you are not on the Deed to the home, you likely still have a marital property interest in the home.   There are many factors that go into determining what your actual property interest may be, however, moving out of your house does not change the nature of your ownership interest.

5. I do not need an attorney if my spouse and I reach an agreement on all of our property and custody issues – Although it is always best to try and come to an agreement on as many issues as possible to avoid the expense of litigation even if the parties reach an agreement on all issues it is still better to have an attorney at least draft the agreement.  People often ask me, do I need a lawyer?  I give them this analogy; I do not need a plumber to replace my hot water heater.  I can do it myself, and did, but because I only knew the basics when I failed to use the correct fittings and sealant and everything started leaking, I called the plumber to fix it.  Unfortunately for divorce there are certain issues that if overlooked or not properly addressed at the time of divorce cannot be “fixed”.   People come in weekly and ask me if there is anything I can do to “fix” their separation agreement or to “fix” a particular issue regarding alimony, health insurance, mortgage interest deductions, financial liability on a loan, transfer of pensions or other retirement, and so on.   Unfortunately about 8 times out of 10 there is absolutely nothing I or anyone else will be able to do to “fix” their problem.