Is mother’s preference still a factor in child custody disputes?

Posted on by Cameron Methner

Recently a client seeking a consultation on divorce and child custody asked me if a father has a real shot at getting custody over the mother. My response was, “of course fathers have a shot at getting custody of their child.” This person did not seem so convinced and said, “Well what about mothers being considered the better choice, isn’t that how Maryland does custody?”

Child custody in Maryland is very complex, and the details are always different for each case when child custody is at issue. But the mother’s preference is not something the Maryland Courts consider to be a factor in determining child custody, at least not anymore.

The mother’s preference originally to a child of “tender years.” It was felt a young child is better suited to remain in the custody of the mother. This preference for giving child custody to mom was supposedly applied only when all else was considered equal between the parties. The Court believed that the relationship between mother and child was so important that there became a preference to allowing the mother to keep custody of the young child(ren). The Court often called it a “primordial tie” or a “visceral bond.”

This then gave a preference to the mother in child custody disputes. But this preference was only one factor among many when deciding custody. If the Court found that the father was a better choice, the mother’s preference would not automatically change the Court’s mind about the father getting custody of his children. The best interests of the child was and is the largest concern by which all else is measured.

This preference became more of an issue in the 1970′s when some Courts started to rely on the Mother’s Preference as an easy answer to custody disputes. The General Assembly of Maryland, in 1974, amended the laws to ensure that the Mother’s Preference was no longer to be considered when determining child custody, in affect abolishing by statute the Mother’s Preference in custody cases as of July 1, 1974. The legislation including the amendment was entitled “An Act concerning Custody of Children–No Preference to Either Spouse.” When the Court has in front of it two fit and proper parents they can no longer take into account the sex of the parent as a tie- breaker when all other factors make them both equal and worthy of custody.

Today the Courts of Maryland considers both parents as having a joint responsibility to their child until the age of 18. This means both parents together and individually have the obligation to care for the welfare of their children. If the parents are not living together child custody cannot be given to either parent based solely on the parent’s gender.

So, as I told the person who originally asked, yes, the Courts of Maryland used to consider the mother as a more likely option for custody of a young child. But now the Court does not consider whether that person is mommy or daddy – just whether they are the best custodian in the best interest of the child.

Elza v. Elza, 300 Md. 51, 475 A.2d 1180 (Md., 1984), McAndrew v. McAndrew, 39 Md.App. 1, 382 A.2d 1081 (1978), Cooke v. Cooke, 319 A.2d 841, 21 Md.App. 376 (Md. App., 1974),Kirstukas v. Kirstukas, 286 A.2d 535, 14 Md.App. 190 (Md. App., 1972), Oberlander v. Oberlander, 256 Md. 672, 261 A.2d 727 (1970)

Get Emergency Contact Numbers on Grandma’s Drivers’ License

Posted on by Tucker Clagett

The Maryland Motor Vehicle Administration (MVA) may have done something right for a change. Do you want to make sure the right people can be contacted in a medical emergency when you can’t speak for yourself? Do you want to be sure YOU can be contacted in an emergency if something happens to a parent, or your grandmother?

The MVA has created a way to link 3 phone numbers to your drivers’ license numbers as emergency contacts. And the real wonder is that it is convenient to set up. You can do it on line in few minutes. All you need is your Driver’s License number, date of birth and last 4 digits of your social security number (which is used as your PIN).

This could save vital time in emergency. Being with your family over the holidays is the perfect time to set this up. You will need information like their drivers’ license number and SSN. If you have children, parents, friends or relatives who drive, make sure they have taken advantage of this feature. This could be especially important for someone who lives alone. Even if they have a cell phone with contacts, which number in that list is a Doctor or EMS Tech supposed to call? You can tell emergency services exactly who to call in an emergency by using this feature from MVA.

So to provide police and medical personnel with emergency contact tied to your drivers’ license, go to www.MVA.Maryland.gov and look for the “Online Transactions” section on the left side of the screen. Click on “more” in that list to see the entire list of online transactions you can do. There should be a link to click for “emergency contacts”. Just follow the instructions.

Have a safe and happy holiday season!

Protective Orders & Peace Orders – overused or not used enough?

Posted on by Cameron Methner

If you are going through a divorce or other family law matter, you may find yourself in need of a Protective Order or Peace Order. Heaven forbid you ever find yourself in a situation where you need to call the police to protect yourself from your spouse, or someone living in your home, or someone you have a relationship with, or someone who is related to you. If that does happen and the police are called they will often recommend filing for a protective order. It can be a scary experience all around especially if you feel like you are in danger. A protective order is not something to consider lightly. If there will be divorce or family law matters going to court, this will figure into the proceedings.

There are some who manipulate the protective order process. Some will use the family law system to get back at someone or use the process to hurt someone. Some are looking for advantage in their divorce or child custody dispute. Sometimes, what is in a temporary protective order is not completely true and would not result in any criminal charges.

Then there are those who desperately need the Court’s protection in a dire family law situation – those who cannot or are unable to protect themselves. There are women and men out there who are suffering and who are in danger and do not know where to turn. The protective order process is made for these people, and they should not hesitate to use it. Use the protective order process wisely or you could end up taking the Court’s time and attention away from someone who really needs protection.

It is very easy to get the court to give you a week long or temporary protective order. Often the other party is not present and has no notice that a protective order has been filed until they are served with the papers. The Court is going to use as much caution as they can when someone asks for help in this type of situation. No judge wants to read in the newspaper the next day that a protective order they denied resulted in someone getting hurt.

Protective orders are not criminal filings, there are no jail time charges, and there are no criminal penalties from a protective order only. If the police take someone into custody or the State’s Attorney’s Office gets involved then that is a different story. However, if the protective order is broken or violated there are criminal charges that can result, since it is still a Court Order.

Once the temporary protective order has expired there is a hearing for a final protective order. Both parties should be present and Court decides whether or not to grant a protective order that lasts from more than a week to a year. Filing a protective order can have long lasting affects. The person who has filed for the protective order must prove their case, the burden is on them. The Court and the judge then has the job of deciding who to believe, who to protect, and who is lying.

Are Private Zoos Legal In Maryland?

Posted on by Tucker Clagett

Could your neighbor run a private zoo in their backyard like the one in Ohio? If you live in Maryland, the answer is probably no. So chances are your Maryland neighbor cannot legally have lions, tigers and bears (oh my!). However, I have to use the word “probably.” There is one big exception to the general ban on dangerous animals in Maryland, which I will discuss below. I will also give you the full list of banned animals.

The guy in Ohio did not technically run a zoo. A zoo is technically a collection of animals held for exhibition to the public. Zoos are regulated by federal and state law. This guy ran his own private exotic animal collection. Surprisingly, the laws in many states do not regulate this type of activity. Ohio does not. The closest states to Maryland that do not are West Virginia, and North & South Carolina.

So in Ohio, this guy was perfectly within his legal rights to keep the 18 tigers and 17 lions that he let loose on his neighbors yesterday. That must have been a very scary situation for the neighbors. They had to live next to that nut for years wondering if his pet tigers were going to greet them at the front door one day.

Maryland has a law against the private ownership of “exotic” animals. What’s on the list? Probably most animals you would not want your neighbor to own. I am not enough of an animal expert to know this covers all the dangerous animals. I know, for instance, there are several species of snakes like boa constrictors and pythons that are legal in Maryland and people do own them. I don’t want them in my back yard either.
The Maryland Criminal Code (Section 10-621) prohibits the private ownership of these animals: fox, skunk, raccoon, bear; caiman, alligator, crocodile, member of the cat family other than the domestic cat (which would exclude the lions and tigers), hybrid of a member of the cat family and a domestic cat if the hybrid weighs over 30 pounds, member of the dog family other than the domestic dog, hybrid of a member of the dog family and a domestic dog, nonhuman primate, including a lemur, monkey, chimpanzee, gorilla, orangutan, marmoset, loris, or tamarin, and poisonous snakes in the family groups of Hydrophidae, Elapidae, Viperidae, or Crotolidae.
Why do I say your neighbor “probably” doesn’t own dangerous exotic animals? Because the law here came into effect in 2006, and there is an exception for anyone owning a banned animal before May 31, 2006, as long as they provide notice to the local county animal control authority. So if your neighbor had a tiger or cobra before 2006, they could still legally own it as long as they gave the required notice. And you can find out by calling your local county animal control authority.