Once you file a divorce in Maryland, the process slightly differs depending on if it’s contested or uncontested.
Contested Divorce. For a Contested Divorce; first, you file your complaint, the court will send you a writ of summons. It’s your job to get that complaint and writ of summons served on the opposing party; there are specific ways under the law to get service for this. Your spouse then has 30 days to answer if they live in the state of Maryland, longer if they live elsewhere. Once they’ve filed their answer, generally you are going to have a scheduling conference first, that will be your first court appearance, although this process differs slightly from county to county. The appearance is brief. You let the court know what the issues are in the case, then you get some dates and deadlines for the rest of the case. This may also be your opportunity to ask the court for additional services like home studies, drug and alcohol evaluations etc.
Depending on the county you’re in, after the scheduling conference you may have a settlement conference, court-appointed or court-ordered mediation, or various family services like a home study, custody evaluation, court-appointed attorney for your children. You may also have a pre-trial conference—another appearance in court—or another settlement conference, where you appear and give the court a status on your case. This is the court’s opportunity to see if the magistrate, or sometimes a retired judge who is presiding over that conference, can help the parties reach a resolution or help settle the case.
After these steps, if you have not reached a settlement, where you agree on the contested issues, then you will have a trial. Trials for a contested divorce case can be a couple of hours to two full days, depending on what the issues are.
Uncontested Divorce. With an uncontested divorce, you still file a complaint, and your spouse must answer within 30 days. However, as soon as the court receives the answer from the opposing party and sees that the case is not contested and there are no issues for the court to decide, they will set a hearing. An uncontested divorce hearing is usually set for 15-30 minutes. You do have to give some brief testimony to prove your grounds for divorce, but an uncontested divorce is going to be much simpler.
How Is Custody Determined in Maryland When a Couple Is Divorcing? Is There an Age When a Child Has Input Into Who He or She Will Live With?
When it comes to the court deciding custody, the judge’s directive under the law is to do whatever is in the best interests of the minor child. Best interests is the overriding guiding factor in all things related to custody. Custody is a very complex issue in Maryland, but generally, there are two types of custody: physical custody and legal custody.
Physical custody is where the child lives and on what schedule do they see each parent. Do they live primarily with one parent and see the other on weekends? Every other weekend? Fifty-fifty, etc. Physical custody is where the child physically spends time.
Legal custody is about decision-making authority. Legal custody is the ability of a parent to make decisions for the minor child on issues related to education, religious training, and non-emergency medical care. Legal custody can be shared; this is generally the default situation. Courts do not like to take away a parent’s decision-making authority over their children, even in a case where one parent is going to have primary physical custody. Courts will award shared legal custody unless the Judge finds that the parents are unable to communicate well enough to make joint decisions in the best interests of the child or children.
If a court does award sole legal custody, where only one parent makes the decisions, this doesn’t mean the other parent gets no information—that’s a common misconception. If one parent has sole legal custody, the other parent is still entitled to be on the emergency contact forms, to get information about the child’s medical care, to have information about the child’s schooling, etc. Legal custody is only about who actually makes the decisions.
Legal custody can also be shared legal custody with tie-breaking authority. If there are some issues with legal custody, the court expects the parents to discuss decisions in good faith to try to reach an agreement, but if they can’t, one parent might be given the power to break the tie and make the decision.
With respect to children having a say, most parties, attorneys, and judges do not want to bring children into a courtroom to have them testify. Nobody usually wants to put them on the stand. Children should not be subjected to testifying in front of both parents and participating in a legal battle. There is no hard and fast rule about when a child has input into a custody decision, but there are several ways a child’s voice can be heard on the matter.
An attorney may be appointed for the child, referred to as a best interest attorney (BIA) or the older term guardian ad litem. A best interests attorney will gather information, interview the parties, children, and collateral witnesses, then make a recommendation about what’s in the child’s best interest.
A best interest attorney for an older child, say14 – 16 years of age, will have a slightly different job—to convey to the court what the child wants. They’ll still talk to the parties, child, and witnesses. However, they have a responsibility to not just make an independent decision about what’s in the child’s best interest, but to convey to the court what the child’s wishes are.
Another type of attorney that can be appoint for a child is called a Nagle v. Hooks attorney or a Privilege attorney. This is an attorney who is only appointed to complete the discreet task of deciding whether to waive the therapist/client privilege on behalf of a minor child who is in individual counseling or therapy. If the attorney decides to waive the privilege, then the child’s therapist can be called to testify about the therapy, if the attorney does not waive the privilege then the therapy sessions remain privileged and cannot be discussed in court.
In the absence of having an attorney appointed for an older child, you can request the judge speak with the child in camera or in chambers, not in the courtroom. This entails having a more casual conversation in their chambers with the child. This generally is less pressure for the child, but still helps the court to get the information from the child about what they want and how they view the situation.
Judges talking to a minor child occurs at the discretion of the court; you cannot force the judge to do so. Oftentimes, a judge will decline the request, refusing to bring the child in. Other times, the judge will want to speak to the child or will only grant the conversation if both parties agree to it. Each case depends on the situation and facts involved.
If the request is granted, through the conversation the judge will evaluate whether the child knows the difference between right and wrong and that the child understands what’s happening. The judge needs to be confident that whatever the child says in the interview can be relied upon. Once the judge has spoken to the child, they’ll come back into the courtroom to convey to the parties the general message the child relayed so it goes on the record.
The child’s statement is a piece of evidence weighed by the judge in consideration of the child’s best interest. Ultimately, if the parties have not reached an agreement on their own, the custody decision is always going to be up to the judge.
For more information on Divorce Law in Maryland, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (443) 300-2335 today.