Child Custody – The Courts Can Do [Nearly] Anything

In evaluating child custody cases, the Maryland appellate courts give wide berth to the decisions of the trial courts.  A judicial determination associated with child custody will not be disturbed unless the trial court abuses its discretion.  This standard of review accounts for a trial court’s unique opportunity to observe the demeanor and credibility of the parties and the witnesses. What happens in situations in which parents cannot communicate with one another?  Can a trial court require parents to participate in a joint legal custodial arrangement when parents do not have the ability to come to the simplest of agreements about the issues having a long term impact on the health, education, and religious practices of their children? According to the holding in the recently decided case, Santo v. Santo, filed on July 11, 2016, the answer to this question is ‘yes’.  The Maryland Court of Appeals did not abuse its discretion when it awarded the parties joint legal custody with tie-breaking provisions over several major matters affecting the lives of their children.  Trial courts have broad discretion in how they fashion joint custody awards.  The Court further held that although the parents clearly lacked the capacity to communicate or cooperate well, this inability to communicate does not preclude the court from making an award of joint legal custody.  To elevate effective parental communication so that it becomes a prerequisite to a joint custody award would undermine the trial court’s complex task of evaluating the facts and circumstances of each case; a task that is necessary to determine the best interest of the children. The Court of Appeals further...

Social Security & Determination of Monetary Award

In a case of first impression, a point of law never before presented to a Maryland Court, the Court of Appeals has now provided guidance on how social security benefits shall be considered when dividing marital property in divorce cases.   In the case Jackson v. Jackson, Maryland’s highest court ruled that trial courts are now required to take into consideration the parties’ actual or anticipated social security benefits as a relevant factor under the Marital Property Act when determining whether to grant a monetary award to adjust the equities and rights of the parties in marital property. The basic facts in the Jackson case help explain the issue.  In essence, the parties wished to divide their assets equally and were able to do so with the significant exception of their retirement assets in the form of their pensions.  During the marriage, Husband was employed for the majority of his career as a federal worker and was eligible for the Civil Service Retirement System (CSRS) pension.  Federal workers who receive retirement benefits from the CSRS are ineligible by law to receive social security benefits.  Wife was also employed during the marriage and was eligible to receive retirement benefits and social security benefits.  The dispute between them related to the accounting of Wife’s social security benefits when calculating the division of their marital property. In form, a social security benefit is a monthly payment to a beneficiary much like any other pension payment.  Social security benefits may certainly accrue during the time of a marriage, but because social security is a federal program created by Congress, states are prohibited by the...

Who Is The Parent? – Custody & Visitation

While summer is traditionally the time for us to kick back and relax, the Maryland Court of Appeals has been quite busy in the family law arena with the release of two important decisions in July 2016. In the case Conover v. Conover, Maryland’s highest court recognized the doctrine of de facto parenthood.  A de facto parent is a person who has raised a child together with the child’s other legal parent. Recognition of the de facto parenthood doctrine will have especially important consequences for children who are born into families headed by same-sex couples.  In such families, the court has held that a de facto parent, the parent who has neither a biological nor adoptive relationship with a child, will have standing to pursue custody and visitation claims. Here are the basic facts of the case.  Michelle Conover and Brittany Conover were a couple in a committed same-sex relationship.  In 2009, before the recognition of same-sex marriages in Maryland, the couple decided to have a child together via artificial insemination.  They chose an anonymous sperm donor to resemble Michelle.  Through this procedure, Brittany gave birth to Jaxon, who was given Michelle’s last name.  A few months after Jaxon’s birth, the couple married in nearby Washington, DC.  While Michelle did not formally adopt Jaxon, she raised Jaxon with Brittany for the first two years of Jaxon’s life. Michelle and Brittany divorced and as a part of the divorce case, Michelle requested that the court award to her visitation with Jaxon.  Brittany did not agree and argued that Michelle was a “legal stranger” to Jaxon and, as such, had no...
Lawyer Cynthia Lifson Featured in the Daily Record

Lawyer Cynthia Lifson Featured in the Daily Record

And not just featured- on the front cover. Cynthia Lifson is featured on and in The Daily Record under the powerful words “Halting Harassment.”  A long-time advocate against domestic violence, Lifson recently testified in support of legislation that significantly broadened the definition of stalking.  This legislation received the overwhelming support of the General Assembly and was officially signed by the Governor on May 19.  The new law will go into effect on October 1. While stalking has been a crime in Maryland for a number of years, the new law will prohibit a person from engaging in a malicious course of conduct in which the person intends to cause or knows or reasonably should have known, that the conduct would cause serious emotional distress in another.  Until the passage of this new law, stalking was limited to a showing that the malicious course of conduct would place another in reasonable fear of: serious bodily injury; an assault in any degree; rape or sexual offense or attempted rape or sexual offense; false imprisonment; or death. The Bureau of Justice Statistics, an agency of the U.S. Department of Justice, identified and measured seven stalking behaviors that that would cause a reasonable person to feel serious emotional distress. These behaviors include: Making unwanted phone calls; Sending unsolicited or unwanted letters, e-mails, messages or texts; Following or spying on the victim; Showing up at places without a legitimate reason; Waiting at places for the victim; Leaving unwanted items, presents, or flowers; Posting information or spreading rumors about the victim on the internet, in a public place, or by word of mouth. While these...

E-Discovery: What is it?

In any lawsuit, including family law cases, it is common to engage in the process of discovery.  In essence, discovery is intended to allow each party in the litigation process to collect information which is reasonably calculated to produce admissible evidence in advance of a court hearing or trial.  Failure by a party to respond to discovery requests may result in serious sanctions by the court and may also result in an overall negative outcome for the party who does not comply with the rules of discovery. Discovery takes on a variety of forms and can be an exhausting and time consuming undertaking.  Traditionally, the discovery process is “paper-rich” and may include the preparation of and answers to questions (referred to as interrogatories), the preparation of and response to requests for the production of documents, and depositions or the taking of testimony under oath of the parties or other witnesses. As our more and more of our means of communication take place electronically, discovery also encompasses the recovery of electronically stored information (ESI).  Retrieving ESI can be a much more complicated procedure than merely copying documents and courts have been developing rules to govern this process.  Certain difficulties emerge when collecting ESI.  For example, electronic records have multiple facets, including metadata, which may be considered privileged information. Metadata, at its simplest definition, is electronically embedded details about a data file, such as the date it was created, its author, or its connection to other files or information. Connections to otherwise confidential documents could potentially make that metadata privileged and not subject to discovery.  It can be a complicated process...

Notes From the Courts: A Rose By Any Other Name

Marital Share of Spouse’s Pension Includes All Elements of the Pension Benefit In a new application of an old theme, the Maryland Court of Special Appeals reiterated the basic concept of interpreting an agreement of the parties with regard to a spouse’s pension benefit.  In Pulliam v. Pulliam, filed on April 29, 2015, the Court held that a consent judgment was unambiguous and that all elements of the Husband’s pension benefit are to be included in the transfer to Wife of her marital share of Husband’s pension. The facts of this case are straightforward.  At the time of the entry of a judgment of absolute divorce, the parties reached a settlement of their differences and subsequently created a consent order for review and signature by the judge.  The consent order contained all of the elements in the agreement of the parties. The term of the consent order that the court was interpreting was written as follows: “ORDERED, that the Defendant shall assign to the Plaintiff an interest in the Pension System for Law Enforcement officers of the State of Maryland as follows: One half of the Marital Share of his entire pension benefit.” When the time came for Husband to sign the particular order needed to transfer Wife’s marital share to her, he refused to do so. He asserted that one particular piece of the Husband’s benefit (referred to as the Deferred Retirement Option Program or “DROP”) should not be included in the calculation of the transfer to Wife.  Husband argued that at the time of the divorce, Husband was not eligible to receive DROP as a part of...