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)

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!

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.

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.

I tend to see the workers compensation system from the claimant’s perspective. We are one of the premier law firms in Southern Maryland for workers’ compensation claims. Not many attorneys do workers comp cases. One reason is that the law is completely different from most other areas of law. The other reason is the fact that dealing with the constant barriers put up by workers comp insurers is a big hassle. You need to know how to deal with them, or you will pull your hair out.

The insurance companies have just about perfected the tactic of deny & delay. They are quick to cut the claimant off from the weekly check. Often the workers’ compensation claimant’s check is stopped on the thinnest evidence. When that happens, we have to file for a hearing. It takes 30-60 days to get one (usually more like 60). Who can afford to live without income for that long? It wears the claimant down, and it isn’t fair.

Sometimes the workers comp insurer will deny reasonable requests made by the claimants doctor. Fighting over medical care is something that takes a lot of my time. Often, a request for care will be denied or delayed, and the poor claimant cannot get that medical care for months while we wait for a hearing date.

Admittedly, there are some bad doctors out there and it is sometimes reasonable to deny the care requested by some of these guys. But when a well respected doctor requests reasonable medical care, it should be approved Sometimes the denial of that care is downright unconscionable. Sometimes, I strongly suspect it is done just to wear the claimant down.

All of these deny & delay tactics have the effect of wearing people down. They get sick of dealing with the matter. Sometimes they give up (always against my advice). Sometimes they just settle. Sometimes they pay for medical care out of their pocket. Sometimes they run it through their own health insurance, if they have it.

It isn’t a fair system. Until it is reformed, we just have to continue fighting when we have to. There is a good reason that very few workers’ compensation claimants try to handle their claim without an attorney. You will get eaten alive.

Hopefully, the workers’ compensation system will be reformed one day. But don’t hold your breath!

Normally, a home is a constitutionally protected area that the police need a search warrant to enter and search for evidence of a crime.  The issues before the court was whether the balcony is part of that protected area and whether McGurk, as a guest, was entitled to claim that protection.  This is a good case to illustrate when the police can search your property, and what having a “reasonable expectation of privacy” means in criminal law.   

The Supreme Court in Minnesota v. Olson, 495 U.S. 91 (1990) has ruled that an overnight guest has a reasonable expectation of privacy in the host’s home.  In McGurk, the Court held that the balcony was considered part of the home itself, which gave rise to a reasonable expectation of privacy.  The court considered the placement of furniture on the balcony, its visibility from the street, and how it was customarily used by the owner and his guests.  The court concluded that the balcony was not open to the public and hence there was a subjective expectation of privacy.

In McGurk, the Court stated that a delivery person would not come onto the balcony unless invited. The court examined where on the property a casual visitor might be expected to enter uninvited.  The homeowner impliedly consents to have members of the public for instance enter onto a front porch to reach a doorbell.  There is no reasonable expectation of privacy in those areas.  The court will consider whether there are physical barriers, such as fences, or signs such as “No Trespassing” or “Private Property” in making its determination.  The court also took into consideration that the police entered at 3:15 a.m. stating that one wouldn’t expect to have uninvited visitors on the balcony at that hour.

Ultimately the Court held there was a reasonable expectation of privacy for Mr. McGurk.  Therefore, the evidence against her cannot be used in her criminal trial.  Deciding whether one has a reasonable expectation of privacy is often a threshold question in criminal law to decide if the police can search or not. 

The State argued that there were exigent circumstances.  Exigent circumstances, such as a fleeing felon, imminent destruction of evidence or danger, are often important in criminal law cases.  They can create an exception to the requirement that the police obtain a search warrant prior to entry into a protected area.  Here the state argued that the marijuana would be destroyed prior to the issue of a warrant.  The court held that the exigent circumstances exception was not applicable in this case because the officer didn’t learn of any exigent circumstances until after he entered into the constitutionally protected area.

The Court of Special Appeals  held that the motion to suppress should have been granted. This keeps the evidence obtained as a result of the illegal search out and will likely lead to an acquittal of the defendant.  There won’t be much evidence to use in her criminal trial, so she will likely go free.

How can anyone claim workers’ compensation when you are not actually doing your job when injured? She actually lost her claim, but it is not as simple as you might think. Under Maryland law, if you travel out of state on a business trip, and you are injured doing something you would normally do while on that trip, then you are covered by workers’ comp.

The Maryland Workers’ Comp case that set this standard involved a lady who slipped in the shower in her hotel room. She was clearly not working at the time, but the whole trip was work, and showering is a normal and routine thing to do while on such a trip. I represented a man who slipped in the hallway of his hotel while on an out of state business trip. He was walking to dinner. He won his workers compensation claim.

This woman did not win her claim in Australia, and I believe she would not win it here in Maryland. While showering, eating, walking, etc. are normal activities you would be expected to engage in while at work, having sex is not. And having a lamp fall on you during sex is definitely not a work accident than any employer can reasonably foresee. It is, however, pretty amusing and therefore good fodder for a blog!

Need more information about Workers’ Comp? Please contact Andrews, Bongar, Gormley & Clagett for a free consultation. We will be happy to answer your questions even if you do not hire us. Read more about Maryland’s Workers’ Compensation laws in our Free Legal Information Library

• Workers’ Compensation – What You Need To Know
• 7 Mistakes That Can Ruin Your Workers Comp Claim

The main driver in bankruptcy filings over the past 3 years or so has been the collapse of the housing market. People found themselves facing foreclosure when interest rates rose and home values plummeted. They had to file a bankruptcy to get out from under that giant mortgage.

But we suspect there are a lot of people who are on the edge, just barely hanging on and hoping for an economic turnaround. Now the promised economic turnaround looks to be further down the road than anyone thought. Home values have not risen. Jobs are not being created. And banks are holding back on millions of foreclosures that will be filed sometime soon. What will people do now?

We suspect there will be an increase in bankruptcy filings in the second half of 2011 as a result of this problem. Those who were barely hanging on and hoping for a miracle are going to have face reality and realize things are not getting better any time soon. Bankruptcy is going to be their only option.

What people do not realize is that bankruptcy is often a good option for them. Filing for bankruptcy is not nearly as bad as many people think. You can still live your life, keep your retirement plans, and move forward to a fresh start financially. It only takes a few years to rebuild your credit, and you will unburden yourself from debts that are crushing your future now.

If you have been holding on and hoping for a economic turnaround, perhaps it is time to at least find out what your options are. We offer a FREE consultation for anyone who is facing foreclosure, or wants advice on how to save their house, or needs to consider a bankruptcy. It won’t cost you anything but time to find out if bankruptcy is a good option for you. Call us today.

Read more about bankruptcy in our Free Legal Information library:

• How to Save Your Home – In a Financial Crisis
• Bankruptcy – What You Need to Know
• Foreclosures – A Resource Guide For Consumers
• Short Sales to Avoid Foreclosure – A Resource Guide

If you are the one paying child support this means your legal obligation to pay child support is over. No matter your child custody situation, no matter whether you are going through a divorce, the State of Maryland no longer requires you to pay child support.

Now, there may be an agreement between you and the other parent to continue to pay. There may be specific reasons why you would still have to pay child support. But if not and you still have that wage lien coming out of your check every pay period, you are probably not so happy.

Even if you do not have a wage lien and you are paying the other parent directly, I can only imagine that the other parent is not so willing to stop those payments. The child support enforcement agency is not able to give legal advice and is not about to step in where the Court system should.

Get Help: Notify the Court of Emancipation

So what do you do? It is hard to believe, but the judicial system is not going to remember that your son or daughter has had a birthday. They are not going to know that you have a problem unless you, that’s right YOU, do something. So do something.

By something, I of course mean that you have to let the Court know that your paycheck should no longer be taken and that you no longer need to pay child support. They need to know that those payments should stop and that if you have been making payments when your child support obligation is over then there is a problem. You cannot however, “jump the gun”, you have to wait until your child has emancipated before you do anything. So, the day after their birthday or the day after high school graduation is the time.

Will I Be Reimbursed for Overpayment?

I often get questions about the overpayment, and whether that money can be reimbursed. Sadly, a majority of the time the Court defines that as a contribution to your child and is not inclined to give it back to you. However, if the money is still within the child support agency’s system and has yet to be deposited to the other parent’s account there is a slim, but possible chance.

Speak Up

The Court in every county is dealing with cases on all types of issues. If you do not tell them that you have a problem nothing is going to change.

But speaking to the Court takes a specific language that often can be difficult to understand without someone there to help. If you have questions or just want some information your best bet is to have a consultation and save yourself from paying more child support than you can afford.

Read more about Family Law and Child Support in our Free Legal Information library:

• Divorce – What You Need to Know
• Child Custody – What You Need to Know
• Child Support – What You Need to Know
• Ease the Pain & Expense of Divorce – Learn More

Ouch! Having a federal judge tell you that a first year law student is smarter than you is a real slap in the face for any criminal lawyer. He must have been really, really angry. And while the press will discuss this case in terms of larger meanings, that is rarely the real story. Here is what I think was really going on.

Roger Clemmons is one of baseball’s biggest celebrities. In 2008, he told Congress he did not use human growth hormone. Other witnesses said he was lying, and the Feds decided to charge him with the crime of lying to Congress. Yesterday, on the very first day of trial, Roger Clemmons won his criminal case on a mistrial by the prosecution.

In short, the Judge had ruled a particular piece of evidence inadmissible in Clemmons criminal trial. The evidence had to do with Andy Pettitte who said Clemmons told him he took human growth hormone. Pettitte told his wife about it, and his wife signed an affidavit confirming only that Pettitte told her about the conversation. So she only heard this third hand, and the Judge said that was not admissible. Then the prosecution showed a video which included that affidavit, along with a Congressman quoting from the affidavit.

Do did they goof up? If so, that is a rather large mistake for a seasoned criminal prosecutor. How did they not know this inadmissible evidence was clearly discussed in one of their first videos? If this was a simple mistake, it is unlikely the Judge would have thrown the whole criminal case out. Mistakes happen and lawyers are human too. Judges do not usually call a mistrial just for a simple mistake, unless it is truly and completely prejudicial.

I am not so sure this slip up met that burden. The jury was going to see tons of evidence from 45 government witnesses who would testify that Clemmons was lying about taking human grown hormone. If he was lying, he is guilty the crime he was charged with. Was this one extra piece of evidence really enough to make such a big difference? Maybe it was, since Andy Pettitte was one of the star witnesses. But I think the Judge suspected something else was going on here, and that is what made him so angry at the prosecutors.

Say you have a really good piece of evidence in your criminal case, but it is inadmissible. The temptation is great to get it in somehow. And if you try, we lawyers call that “getting it in through the backdoor.” Sometimes it can work, but you have to be creative. In this case, it looks like the prosecution was trying to get in evidence through the back door, and they did it in a most uncreative manner.

The Judge probably saw this as a deliberate attempt to get around his rulings. If this is what the prosecution was doing, it borders on prosecutorial misconduct. What most news outlets are not reporting is that the prosecution had already done this once when they mentioned inadmissible evidence during opening statements. So this was their second attempt to back door inadmissible evidence during their criminal prosecution. And it was only day 2 of the trial!

Once is a mistake. Twice is a pattern. And the Judge probably thought mistrial was a fitting punishment for the pattern he saw developing. Mistrials are very rare. In essence, three years of government investigation is thrown out in one fell swoop. For the Judge to declare this mistrial, he must have thought this was more than a simple mistake, and he must have thought it was being done deliberately as part of a pattern.