Difference between sole and joint custody

What is the difference between sole and joint custody?

sole and joint custody

Many have heard the terms “sole custody” and “joint custody”; however often times the meanings and implications of same are misunderstood. Joint custodial arrangements (physical and legal) are certainly more common than sole arrangements and are in most instances preferred by the Courts. In these arrangements, the parties share time with the children and have to consult with one another when making decisions regarding the children. However, a parent may be able to obtain sole custody dependent upon the particular details of their specific situation.

Sole custody means that one parent has exclusive legal and primary custody rights with respect to their minor child or children. The minor child or children primarily reside with the parent with sole physical custody, and that parent does not have to consult the other when making decisions for the children as they have sole legal custody.  A parent usually obtains sole legal and physical custody if the other parent is deemed to be unfit, which sometimes occurs in cases of drug or child abuse. Though a parent may have sole custody, this does not mean, and it is rarely the case, that the other parent does not have visitation rights with the minor child or children.

 Cynthia H. Clark & Associates, LLC is an Annapolis-based family law firm serving clients throughout the state of Maryland. If you are experiencing custodial issues with your partner regarding your children, please contact our firm to reserve a consultation time at our office

Co-Parenting: The Transition from Spouses to Former Spouses

co-parenting

Co-Parenting is one of the biggest concerns parents have when going through a divorce and/or separation is how the transition will affect their children. Adjusting to a new schedule and routine is hard on children, and parents should strive to ease as much stress on their children as they can.

A key way of achieving this is to develop a strong and supportive co-parenting relationship with your former spouse. This may not always be easy at first; however, accomplishing same will greatly ease the transition to your new relationship for your children.

It is important to separate the emotions that led to your divorce from the new co-parenting relationship you are forming with your former spouse. Harboring resentments and dredging up past events/feelings will only serve to negatively effect your communication with your former spouse. Your children should be your top priority and holding onto the past does not help to foster a positive environment for them.

No relationship is perfect and certainly disagreements will develop between you and your former spouse despite your best efforts to avoid them. It is helpful to take a step back before engaging in the disagreement to determine if there is a way it can be resolved without further conflict. If the disagreement cannot be resolved, seek outside support to help aid in resolving the conflict. A helpful resource could be co-parenting classes.

Cynthia H. Clark & Associates, LLC. is an Annapolis-based family law firm serving clients throughout the state of Maryland. If you and your spouse are considering a divorce, please contact our firm to reserve a consultation time at our office.

The Role of the Guardian ad Litem, or Best Interest Attorney

What is the role of the guardian?

If you have children, you have disagreements over co-parenting, especially if you are headed for divorce. If you are already there, adding stepparents or paramours to the mix may lead to actions that affect your children. Many times these situations lead you to court, and to minimize the impact on your children that a high conflict divorce, or a battle over a custody plan may have, a Guardian ad Litem may become involved.

A Guardian ad Litem is an impartial attorney appointed by the court to protect the best interests of a child during custody actions. While many states still use the term “Guardian ad Litem,” in Maryland these advocates are now referred to as Best Interest Attorneys (“BIA”). A BIA may be appointed to your child after the court considers factors under Maryland law, including:

  • The request of one or both parties;
  • Existence of a high level of conflict;
  • Inappropriate adult influence or manipulation;
  • Past or current child abuse or neglect;
  • Past or current mental health problems of the child or party;
  • Special physical, educational, or mental health needs of the child that require investigation or advocacy;
  • Actual or threatened family violence;
  • Alcohol or other substance abuse;
  • Consideration of terminating or suspending parenting time or awarding custody or visitation to a non-parent; or
  • Relocation that substantially reduces the child’s time with a parent, sibling, or both.

The court determines the best interests of the child through weighing a series of factors that can vary based on the relief being sought. It is the job of the Best Interest Attorney to provide the court with information sufficient to make sound decisions as to placing your child in the best environment available. In this sense, the BIA acts as the eyes and ears of the court to ensure decisions made on your child’s behalf are truly in their best interests.

What does the Best Interest Attorney do, exactly?

Though issues related to your child may be discussed with you, the other party, and your attorneys, the BIA reports factual information and makes recommendations to the court after performing a comprehensive, independent investigation. Investigations involve conducting visits to each home in which your child lives, and interviewing your child, the parties, and other witnesses in the home or who have an influence on the child, or who simply possess information to assist the BIA in forming a picture of your child’s life. He or she may also review your child’s medical records and school records. Today, given the vast amount of electronic information available, BIA’s may also conduct criminal background checks or research social media accounts as part of their investigation.

This may seem invasive; however, the BIA’s job is to protect your child’s wellbeing, which requires gaining an accurate picture of them and what he or she may be exposed to on a daily basis.

Additionally, while your child’s wishes are considered, the BIA is not required to adhere to his or her preference when making recommendations, and the court may give deference to your child’s age when making a decision to serve their best interests.

BIA’s are paid but may serve pro bono. Barring any financial hardship, the court will generally require both parties to equally share in the expense beginning with payment of an initial retainer.

If you have a contentious situation involving child custody or visitation and need help, speak with the Annapolis family law attorneys of Cynthia H. Clark & Associates, LLC today. Our knowledgeable and caring attorneys are ready to guide you through any family court issue you are experiencing. Please contact the firm or call 410-990-0090 to arrange a consultation.

Determining Parenting Time for De Facto Parents

In 2016, Maryland began recognizing de facto parents by giving them legal standing in custody and visitation decisions. A de facto (“in fact”) parent is a person who plays a significant, parent-like role in a child’s life. A de facto parent has taken on parenting responsibilities for the child and has bonded with the child, and the child depends on his or her relationship with that person. As long as the de facto parent has an intact relationship with the child’s biological or adopted parent or parents, his or her place in the child’s life is secure. However, when the spouses divorce, the de facto parent might feel as if he or she is on shaky ground when it comes to custody and parenting time issues. This also applies to grandparents and other domestic partners as well.

By acknowledging the validity of a de facto parent’s role in the life of the child, Maryland now gives the de facto parent equal footing. De facto parents can share the same rights and responsibilities as biological, legal parents to make decisions about the care, custody, and best interests of the child. They no longer have to prove there are exceptional circumstances, or that the other parent is unfit.

The court decides custody and visitation based on the best interests of the child, regardless of whether you are a biological parent, an adoptive parent, or a de facto parent. If you and your co-parent create a parenting plan that addresses these issues, the courts will likely go along with it. If you cannot create a parenting plan together, then the courts will make the determination for you.

What if there are exceptional circumstances?

If there are exceptional circumstances involved, or if the legal parent could be deemed unfit, Maryland courts may consider the factors listed in McDermott v. Dougherty, 385 Md. 320 (2005) in their determination:

  1. The length of time the child has been away from the biological parent
  2. The age of the child when care was assumed by the third party
  3. The possible emotional effect on the child of a change of custody
  4. The period of time which elapsed before the parent sought to reclaim the child
  5. The nature and strength of the ties between the child and the third-party custodian
  6. The intensity and genuineness of the parent’s desire to have the child
  7. The stability and certainty as to the child’s future in the custody of the parent

Deciding child custody has always been a challenging task. Parents develop deep, strong bonds with their children, and being forced to live apart from them can inspire desperate actions. If you are being denied your rights to parenting time with your children, seek the advice of an experienced family law attorney as soon as you can.

At Cynthia H. Clark & Associates, LLC we focus on protecting the best interests of your child. Our Annapolis child custody attorneys are here to represent you and your family in all matters of family law. You can reserve a consultation with a member of our team by calling 410.921.2422 or filling out our contact form.

Emergency Child Custody in Maryland

There is nothing more terrifying to a parent than believing your child is in danger. When the cause of the danger is your co-parent, however, there are certain steps you can take to ensure your child’s protection and may require an emergency child custody hearing to resolve the situation.

If you believe that your child is facing an immediate health or safety risk, you can request an emergency custody hearing by filing an emergency petition for child custody. The hearing will take place quickly – sometimes within a few days of the request; sometimes within hours following the request – which allows the court to make a quick decision regarding the child’s safety.

Reasons to request an emergency custody hearing

There are several different reasons for filing a petition for an emergency child custody order, including (but not limited to):

  • Abuse or neglect by the other parent or a member of the other parent’s household
  • Threats of abuse or violence by the other parent or a member of the other parent’s household
  • Alcohol or drug use and/or abuse by the other parent or a member of the other parent’s household
  • To avert a parental kidnapping
  • A conviction of child sexual abuse charges by the other parent or a member of the other parent’s household
  • Abandonment of the child
  • Changes in the safety of the other parent’s accommodations (utilities being turned off, risk of eviction, etc.)

Evidence to support your emergency petition

If the court consents, you and the other parent will be required to attend a hearing. The party filing the petition must have evidence to support the allegations, including:

  • Police report or an arrest record for the other parent
  • Records from Child Protection Services
  • Medical records for the child
  • Court records from previous protection order hearings
  • Evidence of the other parent’s alcohol or drug abuse
  • Evidence of domestic violence against the child, such as photos or videos
  • Records of previous convictions for the other parent

Understand that Maryland’s laws protect parental rights, so unless the child is in immediate danger of harm, or of being removed from the state permanently, it can be a challenge to obtain emergency custody. This is why having evidence is a critical part of the process.

How long does an emergency child custody order last in Maryland?

An emergency child custody order is a temporary change, which allows the court to quickly modify the custody order to protect the child’s safety. Before you can file an emergency custody order, you must have an open custody case. Once the final custody order is made in the case, the emergency custody order will expire.

If you are considering an emergency child custody order, you are facing a difficult situation for your child and yourself. Having an experienced Annapolis child custody lawyer from Cynthia H. Clark & Associates, LLC on your side can help you move through the process quickly and smoothly, ensuring the safety of your child. To learn more about our services, or to reserve a consultation at our Annapolis office, please call 410.921.2422 or fill out our contact form.

Second Parent, Stepparent and Adult Adoption – The Many Ways to Make a Family

Second Parent, Stepparent and Adult Adoption – The Many Ways to Make a Family

Although our laws have, historically, been based on a married man and a woman playing the role of the father and mother of a child, our culture is changing, and our ideas of what makes a family are evolving. Sometimes, the laws catch up quickly; sometimes, they do not.

The good news is that Maryland offers a number of ways to grow and protect your family. We wanted to explore some of the different adoption options for parents, so you can make the best possible choices for your future.

Second parent adoption

Second parent adoption allows a non-biological parent to have legal rights to a child. Even though marriage equality is the law of the land, and has been for years, LGBTQ couples still face potential problems – especially in other states which may try to circumvent the laws, or which do not accept de facto parenting. A second parent adoption can protect everyone.

For example, if a same-sex couple has a child together, and the biological parent dies unexpectedly or the couple divorces, the non-biological parent may be denied his or her parental rights. The same is true if a person adopts a child and then gets married, and the spouse does not also adopt the child. Seeking a second parent adoption gives the non-biological parent the same rights and responsibilities regarding custody and visitation.

Stepparent adoption

A stepparent adoption is a way to formalize the parent-child relationship in a family where one parent has remarried. It offers many benefits for both the second spouse and the child; not only will you have equal legal rights when it comes to raising the child, but it may make inheritance easier for the child, because it eliminates a potential contest during probate. It also allows your child to benefit from your insurance policies and Social Security. Another added benefit is that your entire family will share the same last name.

If the child’s other biological parent is still alive, you must have his or her consent to move forward with this type of adoption. This requires the other parent to give up his or her parental rights. Finally, if the child is older than 10, you may also need his or her permission to adopt.

Adult adoption

Adult adoption may not be as well-known, but it is legal in Maryland. It offers all of the same benefits that any adoption would – inheritance, name changes, solidifying family bonds – but it also allows the adult child to make important medical decisions on behalf of the parent, when necessary. Many times, adult adoption occurs in families where a foster child aged-out of the system before he or she could be adopted, and in families where a stepparent could not legally adopt the child.

By adopting an adult child, you are taking on this responsibility for his or her care. This means you can set up trusts and powers of attorney, and create a path forward for your loved one. It also grants you the right to appoint a guardian for the adult child in the event of your death.

No matter what kind of adoption is best for you, you are going to need an adoption attorney to help guide you through the process. At Cynthia H. Clark & Associates, LLC, our family law attorneys advocate for you and your family in all aspects of family law. To schedule an initial consultation at our office in Annapolis, please call 410.921.2422 or fill out our contact form.

Parenting Plans and the Holidays

maryland grandparents rights lawyer

The holiday season is upon us. For many, this means more time spent with family and friends. When you are divorced, however, and you co-parent your children, the holidays can add more stress than seems fair.

When you create a Parenting Plan, your holiday schedule is planned in that document. Perhaps your child will alternate holidays, or maybe you and your spouse agree to spend a specific day, like Thanksgiving, with your child together. If both parents agree, there is a lot of flexibility available for holidays, and under normal circumstances, whatever you decide will be approved by the judge (providing it is in the best interests of the children).

However, there may be exceptions to the rule that you did not consider, such as last-minute plans to go away, or the death of a family member, or a sudden illness, etc. You may also be dealing with a co-parent who feels he or she has been unfairly treated, or who simply refuses to abide by the Court Order.

Let’s look at some of these exceptions.

Making your case for flexibility

Changes in circumstances can happen quickly – and now you need to make a change for this particular holiday season. As the spouse making the request, it is important to be straightforward and honest. Along with your request to your ex-spouse, you should offer to make compromises elsewhere in your agreed-to schedule, such as allowing your children to stay with your ex for an extra day, or for more time during their next visit. Perhaps you can offer up “your” holiday in exchange for the extra time you want to spend for this holiday.

These types of exchanges should be written down, so that both you and your ex-spouse have a record of it. Even if you and your ex have always made allowances before, send an email to your ex with the proposed changes, and ask him or her to reply “I agree,” or “Okay,” or in some other way to show that both of you are onboard.

If you need a change in your schedule that is permanent, however, you should speak with your lawyer about your options for modifying the Order. Again, if you and your ex are in agreement about this permanent change, it should be a relatively smooth process.

Options when your ex-spouse refuses to follow the Parenting Plan

If your ex refuses to abide by the Court Order during the holidays, and all attempts to work it out on your own have failed, then you have a more complicated issue on your hands. There are a few things you can do to protect your rights to parent your children:

  • Have your lawyer send a letter to your ex. A letter from your attorney that informs the other parent he or she must obey the court-ordered custody arrangement or face legal penalties may be enough to change his or her behavior.
  • Ask for mediation services. If your ex is having a hard time sticking to the Parenting Plan, mediation may help you resolve those issues. The chances are good that you may still require a permanent modification to the Order, but you and your ex could reach a more amicable (and amenable) solution if you avoid jumping right into litigation.
  • Request changes to the custody arrangement. If your ex repeatedly violates the child custody order, it may be time to request modifications to the Parenting Plan. This does not have to be contentious, but it could be – and you should be prepared for that. Your lawyer can help you craft a strategy to move forward.
  • File a motion for contempt. Taking this action will force the other parent to appear in court and explain why he or she violated the child custody order. Penalties for determined violations can include sanctions or fines, or even a brief time behind bars in the case of delinquent child support.
  • Call the police. If you fear for the safety of your children, call the police. If your co-parent has kidnapped your children, call the police. This is not a catch-all answer to address any issues you have, of course, but in some cases it may prove necessary.

If you face child custody conflicts with your ex-spouse this holiday season, the Annapolis family law attorneys at Cynthia H. Clark & Associates, LLC are here to help you. We focus on representing you, and fighting for the best possible outcome in your case that leaves you and your loved ones with a fair and equitable arrangement. To request a consultation and our law office, call us today at 410.921.2422 or complete our contact form.

Can DNA Paternity Testing Be Done Without the Father’s Approval?

dna test without parental consent

Paternity testing is an issue that is naturally fraught with a lot of emotion. Proof of paternity answers an important question, which will have legal ramifications and a significant impact on the child’s life. However, getting the suspected father to submit to a DNA test can be difficult in some cases, and you might wonder if you actually need his permission at all.

The requirement of knowledge and consent in DNA testing

If you require legal DNA test results that will hold up in court, the person whose DNA is being tested must know about the test and give his consent for his genetic material to be tested. DNA testing facilities require signed consent forms from the person whose sample is being tested before they will conduct the test.

If the father is present, available and willing, he participates in the test and has the sample analyzed in a DNA testing lab. The lab would also require a sample from the child and the child’s mother. Once the results are in, if the DNA test proves paternity, the court will declare that the father is the legal father, his name will be added to the birth certificate, and the issues of child support and custody and visitation can be decided. DNA test results are about 99.9999% accurate when done correctly and using a sample that comes directly from the father.

If the suspected father does not agree to take the test of his own volition, the court can issue an “order of parentage” and compel the potential father to submit to DNA testing. If he refuses to take a court-ordered paternity test, he will face legal consequences such as being held in contempt of court, and he will be subject to fines and possible criminal charges.

Testing for paternity when the father is unable to be tested

If the father is no longer living or unreachable somehow, the child’s paternal grandparents’ DNA can be tested. The DNA samples from the DNA of full siblings of the alleged father, the child and the mother can also be used to determine if there is a match. Another option is to test the DNA of a known child of the possible father.

It is always best to get the father’s consent, and be honest when it comes to the issue of establishing paternity. A skilled Annapolis child custody attorney from Cynthia H. Clark & Associates, LLC can help you work through the challenges of establishing paternity and deciding child custody and visitation issues.

At Cynthia H. Clark & Associates, LLC, we are here for you during the entire child custody process. You may reserve a consultation at our office in Annapolis by calling 410.921.2422 or filling out our contact form.

Division of Property or “Child” Custody – Who Keeps the Dog in a Divorce?

pet custody lawyer

Our pets light up our lives with faithful companionship and unconditional love. We consider them members of the family. Some of us think of our furry friends like children. If your pet is important to you and your family, and you are thinking about divorce, you should keep the future of your pet in mind when it comes to division of property.

Some states have specific laws in place when it comes to custody of pets, but as of this writing, Maryland does not. As cold as it may sound, pets would fall under Maryland’s Family Law §8–201, which defines “family personal property.” Unless some kind of agreement or trust exists which provides guidelines on who might get custody of the family pet in the event of a divorce, the court can resolve the issue just like any other property disagreement – by deciding who keeps the pet, and who does not.

Protecting your pet in a divorce

Some couples who divorce on amicable terms, or who have children, will devise their own “custody” agreements for their pets: for example, the family dog might follow the children around, or perhaps one person will take the pets in summer or on weekends. An informal arrangement such as this can work for some people.

However, if you are worried about the fate of your pets – out or love and attachment, or out of fear that your soon-to-be-ex-spouse will neglect or mistreat the animals – you should work with your attorney to ensure that your pet remains with you as part of the terms of the divorce settlement.

If you cannot come to an agreement, then the court will decide how to divide the property – in this case, your pet. A judge may look at the following factors when deciding the future of your family pet:

  • Original ownership. Which spouse acquired the pet? If you have adoption or ownership papers, provide them to the court.
  • Primary caregiver. Who took the cat to the vet? Who walked the dog every morning? Trained the dog and spent quality time with it every day?
  • Future care. Who can provide the best care moving forward? Will one party be moving to an apartment or condo where outside space is limited? Does one party have work hours that make it difficult to spend time with the animal?
  • Financial ability. What is each person’s financial ability to realistically take care of a pet after the divorce? Vet bills, pet food, medication: these items add up.
  • Purpose for the original purchase or adoption. Is the animal a show animal, or considered a support or therapy animal to a specific party? Certainly, a judge will not award a service animal, such as a seeing-eye dog, to the spouse who does not need it; but, he or she may consider other matters when it comes to the animal.

To be candid, some judges may not want to get involved in issues regarding pets. There have even been cases where the judge has ordered the pet be sold and the parties split the proceeds, although this is obviously an extreme case. There have also been cases where the judge has ordered the parties to split custody of the pet. If neither of these solutions sound appealing, you and your ex-spouse should attempt to remedy this disagreement on your own if at all possible, with the assistance of your attorneys.

At Cynthia H. Clark & Associates, LLC, we advocate for you during your divorce. We understand that being prepared is part of a strong strategy. To reserve a consultation at our office in Annapolis, please call 410.921.2422 or fill out our contact form.

5 Tips to Reach a Child Custody Agreement Together

5 Tips to Reach a Child Custody Agreement TogetherYou love your child more than anything; all that you want is to make sure that he or she is cared for, and has his or her best interests taken care of by both you and your spouse. However, the two of you do not agree on how the custody arrangements should go, and it is causing a lot of stress. Perhaps you tried mediation, but found it did not work. Perhaps your spouse has already found an attorney, and you have heard that he or she is a real bull dog.

Or perhaps – if you are like many of the clients we have met and helped through the years – you and your spouse simply don’t want to be married anymore, and neither one of you has the appetite for a long, drawn-out battle.

We would never recommend trying to handle your own divorce; there are too many moving parts, and too many potential complications. But if you and your spouse are able to be amicable, there is no reason why you cannot come together to work on your parenting plan. These are five things you can do to help the process go more smoothly.

Always keep an open mind.

The goal is to create a plan together, that not only leaves both parents feeling satisfied and in control of their lives, but also ensures you can both parent your children. You may believe that you know what is best for your child, but your co-parent also has his or her own thoughts and perspectives about what is right for your children. When you keep an open mind, and are willing to listen and compromise, the process will run more smoothly.

Gather the documentation you can

Documentation – medical histories, sign-up sheets, special tutoring or programs, expenses and bills, etc. – helps reinforce and clarify what the most supportive access schedule and routine would be for your children and their needs. You may be surprised at how much time your child spends doing after-school activities. If your job prevents you from being home during the same hours as your child, perhaps your spouse is better suited to primary residential custody. Or, if your spouse plans on moving to another town, he or she may be more receptive to your child living primarily with you, because of how much driving and transport is involved.

This type of paperwork can help you and your spouse when it comes to addressing payment of expenses for your children as well. The courts do have specific mandatory guidelines for the amount of child support one parent pays to the other; however, you and your spouse can work out an agreement to split any additional costs of raising your child, such as extracurricular activity and uninsured medical expenses, in a way that is conducive to your particular financial circumstances.

Come prepared with several options regarding co-parenting

In Maryland, there are two types of custody, legal and physical. Physical custody pertains to where the children physically reside. Parents can have joint physical custody, which means the children reside with both of parents, or one parent can have sole physical custody, which means that the children primarily reside with one parent instead of the other. Legal custody entails decision making authority for major issues regarding the children, such as medical, religious or educational decisions. Parents can have joint legal custody, which provides them both equal decision-making authority with regards to major decisions regarding their children, or one parent can have sole legal custody, which gives them sole decision-making authority.

The process can be, in a word, confusing.

The parenting plan agreement outlines with whom the children actually live at any given time; specific information about the child’s health and educational needs; a summer vacation and holiday schedule; and any other stipulations required. Usually it contemplates both parents having input on major decisions involving the children and keeps both active in the children’s medical, educational and other activities.

Parenting plans are generally best when specific – but because life is not totally predictable, being too specific can leave both parents feeling frustrated. Consider also adding in special circumstances into the agreement – birthdays, vacations, family reunions, etc.

Even if you feel overwhelmed, attempt to find ways to remain calm and communicative

Even the most rational parents can be overwhelmed by the custody process. If you feel like your emotions are getting out of control, remember to take some deep breaths. You can always ask for a break so that you can leave the room and clear your head. The more calm, civil and composed you can remain during the custody discussion, the more effective you will be in reaching a fair resolution. Sometimes it might take more than one meeting to process the information and the important decisions you are considering for your children’s best interests.

Remember that it is all about your child’s needs

This is the most important thing of all. The best interest of the child is what is most important – not only to you, but to the courts. If you find yourself being a bit vengeful, or feel you are being treated unfairly by your co-parent, stop the conversation. You can pick it up another day.

Finally, keep in mind that if you cannot come to an agreement together, neither of you has “failed” as a parent. Sometimes, we need a third-party to point things out. Sometimes, you need an attorney who will fight to protect your child, and who can prove that your best interests are aligned with your child’s.

At Cynthia H. Clark & Associates, LLC, we are your advocates. Our attorneys treat you and your goals with respect and dignity, and know how to build a case designed to protect those goals. To reserve a consultation at our office in Annapolis, please call 410.921.2422 or fill out our contact form.