Family Law Legislation
SUPPORT HB402, 403, 816, 1037; OPPOSE HB1052, 1132
February 25, 2011
Yesterday the House Judiciary Committee held hearings several family law bills that impact women:
House Bill 402 Family Law - Grounds for Absolute Divorce - Time Requirements
House Bill 402 would reduce the amount of time that is currently required that parties be separated prior to being eligible for an absolute divorce. The current one year period for a voluntary separation would be reduced to six month and the current two year separation requirement for a "default" ground would be reduced to 12 months. The Women's Law Center supports House Bill 402 because the lengthy requirements do not serve any valuable public policy.
Current Maryland divorce law is onerous for its citizens. In many circumstances married parties are able and willing to end their marriage and don't need or benefit from such long separation periods. Especially in simple or uncontested divorces, adults should be allowed to resolve their private issues with minimal intrusion or paternalism by the State. A shorter separation time can help families to move forward and enable people who should not or no longer want to be together to end their relationship. The Women's Law Center administers the statewide Family Law Hotline, in conjunction with the Legal Aid Bureau. We receive many hundreds of calls a year from all over our state from people who are stymied in trying to end their marriages more quickly than the current law allows.
House Bill 403 Family Law - Grounds for Divorce
House Bill 403 would eliminate the need for parties to live separate and apart in order to file for divorce on voluntary separation grounds by redefining "separate and apart" as still being in the same residence and sharing living expenses but maintaining separate bedrooms. The Women's Law Center supports House Bill 403 as it recognizes that in these very difficult economic times it may be difficult for parties to maintain two separate households while they wait for their divorce and legal disentanglement of their finances. Couples who own a home together but have determined that their marriage is no longer viable need an option that allows them to move forward to obtain a divorce.
House Bill 816 Family Law - Child custody Determinations
The Women's Law Center supports House Bill 816 because it codifies the existing Maryland case law regarding custody determinations into a statute that continues to rely on the best interest of the child standard, but allows litigants to know what factors a court considers in custody cases. House Bill 816 assists litigants and courts with what factors to consider in custody and visitation cases. The factors are sufficiently broad to allow judicial discretion to craft a custody and visitation arrangement that is feasible, in the best interests of the child, and that maintains the safety of all parties.
Currently, there is no statute that sets out the factors a court must consider in making a custody determination. While cases decided over years in Maryland have established general guidelines for judges, including that the overriding concern in determining child custody should be the best interests of the child, no current statute clearly articulates all factors to be considered. Judges, lawyers and litigants must interpret case law and do not have the benefit of a legislative description of the factors to be considered. This is particularly problematic for litigants who are not represented and are hampered in their ability to appropriately present their case for custody and/or visitation without clear and accessible law. House Bill 816 incorporates all the standards that have been developed by Maryland judges in case law into statutory provisions and carefully outlines the mandatory factors which a court must consider and factors a court may not consider.
The Women's Law Center's empirical research about outcomes in family law cases, reported in Families in Transition, shows that joint legal custody is the outcome in many custody cases. In cases filed in 2003, 55% of custody cases resulted in joint legal custody. In most of these cases, the parties voluntarily agreed to this outcome. The research also showed that when custody arrangements are resolved through judicial intervention, the rate of subsequent litigation is twice as high than when resolved by parties, indicating that custody outcomes are more effective when the parties can reach an agreement. Joint legal custody determinations had the highest rate of subsequent litigation when resolved through judicial intervention.
House Bill 1037 Family Law - Grandparent Visitation
House Bill 1037 clarifies that a court may order visitation for a grandparent over the objection of a parent if there would be detriment to the child if visitation is not allowed, visitation would not interfere with the parent-child relationship and visitation would be in the best interests of the child. House Bill 1037 would conform the existing grandparent visitation statute with recent case law. The Women's Law Center supports House Bill 1037 because children's relationships with their grandparents can be of great benefit to the children and in those appropriate cases, grandparents should be able to seek visitation.
House Bill 1052 Family Law - Child Custody - Visitation Rights of Noncustodial Parents
House Bill 1052 would require courts to order a specific schedule of visitation to noncustodial parents, including every other weekend, four weeks in the summer and alternate holidays. The Women's Law Center opposes House Bill 1052 because it is inappropriately confining and does not recognize the individualized needs of children and families. Currently, judges and masters make visitation decisions on a case by case basis, using the best interests of the child as the guiding factor in those decisions. This is appropriate and leaves the proper schedule in the hands of the trier of fact who has reviewed all the evidence. It is inappropriate to dictate that the schedule proposed by House Bill 1052 is the right one for a given family. Judges and masters have the ability to use their discretion in sensitive matters to craft a schedule that best works for that given family considering a schedule that works for both parties and is appropriate for the needs and developmental stage of the child. A specific visitation schedule is best left to the discretion of the court. Furthermore, the bill has no protections incorporated for cases where there is domestic violence in the family.
House Bill 1132 Family Law - Children's Civil Rights - Equal Parenting Time
Contact members of the House Judiciary Committee and urge them to
SUPPORT House Bills 402, 403, 816 and 1037. Also urge them to OPPOSE House Bills 1052 and 1132.
House Bill 1132 creates a preference for joint legal custody and physical custody for equal periods of time for each parent. The Women's Law Center opposes the presumption for joint legal and equal physical custody created by this Bill. House Bill 1132 is particularly egregious in that there is no exception for situations in which there has been domestic violence.
Joint legal custody is already awarded in many cases in Maryland. The Women's Law Center's study Families in Transition: A Follow-Up Study Exploring Family Law Issues in Maryland revealed that more than half (55%) of custody cases resulted in some form of joint legal custody. Therefore, a presumption is not necessary. Furthermore, the research data indicate that custody arrangements are much more successful if they are agreed to by the parties, rather than imposed by the judge.
Current law specifies the cases in which joint custody is appropriate. Among other things, the key factors the judge must consider are the capacity of the parents to communicate and to reach shared decisions affecting the child's welfare and the willingness of the parents to share custody. Joint legal custody is a challenging legal arrangement and should be imposed only when there is evidence that it will be successful. The current standards for joint custody are sufficient and help ensure that the best interests of the child are protected. The presumption for joint legal custody proposed by House Bill 1132 would make it more likely that joint custody would be imposed in inappropriate situations.
The preference for joint custody and equal physical custody is particularly problematic when domestic violence is involved. A joint legal custody and equal physical custody arrangement requires an intense level of communication and contact between the parents. This degree of interaction could put the victim of domestic violence at significant risk.
The Women's Law Center recognizes and deeply respects the benefits of having both parents actively involved in a child's life. This goal can be accomplished through joint legal custody and through various other custody and visitation arrangements. The current standards are sufficiently broad to allow judicial discretion to craft a custody and visitation arrangement that is feasible, in the best interests of the child and that maintains the safety of all parties. Imposing a preference for joint legal custody and equal physical custody that is difficult to overcome would increase the incidence of this type of custody arrangement when it is not appropriate or constructive. This could be counter-productive and detrimental to the well-being of the child and the parents' ability to work together.
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