Archive | 2013

Unique Service Problems in Hagerstown Custody Cases

A Father whose spouse had left the marital home and relocated (temporary or otherwise) into Chambersburg, Pennsylvania.  He had filed divorce papers on his own and had been biding his time for weeks, which seemed like an eternity.

The unendurable waiting game of the Hagerstown and Maryland Circuit Court process is lamented by 100 percent of my clients.  If you had the benefit of seeing how slow other jurisdictions can be, you might actually be impressed, but that will probably not console you.

Hiring a lawyer in Hagerstown or otherwise, won’t automatically “Speed up” this arduous process. That being said, every job goes faster when it is done by a professional.

In this Father’s case, he shaved a month off the waiting game just by speaking with me.  Here is how:

The serving of a lawsuit or complaint initiates the timelines of the default and/or the trial process.  In any Washington County Circuit Court civil lawsuit, the initiating party known as a complainant or plaintiff files a complaint or claim.

The “complaint” is a document signed under oath that indicates the responding party or defendant owes the money and why.  After that complaint is filed with the court it is then served upon the defendant.

If he/she fails to respond within a defined period of time the plaintiff “wins” by what is called a default.  

The timelines for the defendant to reply to this complaint are driven in large part upon not just when, but also where the defendant is served.  By “where” I do not mean at home versus at work, I mean what state or country.

You see, in a Circuit Court case the defendant has 30 days to respond if he/she is served in this state.  If the defendant is served outside of the state of maryland he/she has sixty days to file a response or answer to the complain.  If the defendant is served in another country he/she has ninety days to respond.  These rules, or timelines are described in Maryland Rule 2-321.  http://www.lexisnexis.com/hottopics/mdcode/

This difference in the timelines can be uniquely significant in Hagerstown, Washington county, and other parts of western Maryland known as the “panhandle.”

In Hancock (which is in Washington County and subject to the Hagerstown court)  less than 2 miles  divides Maryland from West Virginia and Pennsylvania.  At other points, this region can bring as many as four states in close proximity to the jurisdiction of Maryland’s family courts.

Think of it, Maryland, West Virginia, Pennsylvania, Virginia and Ohio, not to mention the District of Columbia. Thus, a case can present itself such as a husband and wife (or an unmarried couple) living in Hagerstown.

They separate and the wife  (or mother) takes the couple’s child and enrolls him/her in school in Pennsylvania.  The father in such a situation would find himself understandably, impatient to present his case (or claim) to a judge as soon as possible.

Given the foregoing example, if the father serves the mother with his custody papers in Maryland versus in Pennsylvania, he can shave a month off of the process.  A one month period of time under those circumstances seems like an eternity.

Bear in mind that the Hagerstown court (absent emergency circumstances and specialized pleadings/motions) won’t even set a hearing date until the defendant’s time to respond has expired, let alone make a decision which would be dispositive.

Furthermore, each month/week/day that goes by weakens his case and brings father one step closer to her claiming…. “it’s the status quo”…”maybe I should not have moved, but they are fine now, why put them through the move back?”

Thus, you can see that even this little issue of where she gets the papers can be a game changer. If this seemingly inconsequential issue in a case can have such extreme implications costing weeks or months unnecessarily, imagine mistakes in more substantive regards?

This is a HIGHLY simplified example and does not address the glaring implications of interstate jurisdiction in a custody, visitation or child support case. My point is that, in any domestic case, details can make all the difference in the world.   All facets of a case require consideration, including something so small as service of the paperwork.  Any of these facets are not mere details but can eventually be the very crux of winning or losing custody of your children.

This is a cautionary tale, with the lesson to consult a lawyer who regularly practices in Hagerstown.   Maybe consulting even more than one can be valuable?  If you can’t afford a full private counsel, Hagerstown has a legal clinic with a free lawyer who can help with these details.
Consider this; your family law lawyer in Hagerstown, and his staff, lose lots of sleep worrying that all the details in your case are covered.  Why not make sure you are covered and let him lose sleep?  I bet as you are reading this you could use a few winks;)

Tim Conlon, Esquire for The Custody Place

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FREDERICK MARYLAND 21701

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Once The Judge in Hagerstown Decides, it’s done…except

Once a Judge has made a decision, there’s no coming back to alter it, not even if both parties agree

The doctrine of Res-Judicata (Latin: a matter already adjudged) dictates that litigants can’t resurrect a case after the judge has made a decision.  This doctrine bars litigants in civil cases from bringing their cases over, and over again.  It includes decisions in a divorce case as to the money, alimony and property decisions.

The notable exception to the doctrine of Res-Judicata in Washington County, and elsewhere in Maryland, is any decisions in custody, child support and child visitation cases.

The reasons that cases involving children are exceptions to the rule of Res-Judicata are twofold.  First:

Children are not static like property or money.  They’re living beings and they develop.

They have needs that change over time and under different circumstances.  For example, if parents who previously lived close to one another in Hagerstown and Boonsboro, move a greater distance away from one another, it may preclude the frequent visitation they previously enjoyed

The mere passage of time may alter circumstances.  Consider a case where from age 2yrs old through age 5yrs old parents in Williamsport and Maugansville exchanged their child every 3 days.  When the child reached school age (Kindergarten) the parents being in different school districts precluded the previous schedule.

The second reason cases involving children are not subject to the constraints of Res-Judicata, is because children are too important to “close the book on them” after the case has closed

Imagine a.case where the parties were divorced in 2010.  At the time of the divorce the mother lived in Keedysville and was granted custody because she was a stay at home mom.  Fast forward 3 years to the present.  Now mom is using drugs and working as an exotic dancer in Funkstown..

Nevertheless, the Maryland Family Law Courts in Hagerstown and elsewhere, don’t want people coming back over and over just to put on the same case.  The solution to these competing interests between bring cases to closure but recognizing that the needs of children change has been resolved by the Maryland Courts as follows.

Once a custody, child support, or visitation case has been decided the court requires that a party seeking modification must demonstrate that there has been a “material change in circumstances” before the court can consider the merit of the requested modification.

This burden makes modification cases a trial within a trial, as one Judge in Hagerstown has described it.  The movant (( One who makes a motion before a court. The applicant for a judicial rule or order. Generally, it is the job of the movant to convince a judge to rule)) has the burden to prove that circumstances relative to the child(ren) in question have changed in a material way.  If he/she is unable to demonstrate such a change, the case is over before it even starts.

After the moving party has demonstrated that there has been a material change in circumstances then, and only then, will the court consider whether a change to the status quo is in the best interest of the child.

Timothy Conlon, Esquire for The Custody Place

Custody Attorneys in Hagerstown MD

301 865-1101 Call 24/7

Consultations always Free

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Interstate Jurisdiction of Child Custody

In any dispute or case regarding child custody and/or access, the first thing which must be determined is jurisdiction.  The question of what state and county family law court has the appropriate jurisdiction over the parents and the child(ren) is resolved by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

If the children and parents reside in Washington County, be it Hagerstown or elsewhere, the Washington County Circuit Court is the appropriate Maryland Court.  This becomes less clear where one parent lives in Boonsboro but the other parent has moved to West Virginia.  What if one parent lives in Williamsport, Maryland with one child and the other parent has moved to Williamsport, Pennsylvania with another child?

Child custody is almost always a state court decision. In 99.999 percent of all child custody and visitation cases the Federal Courts and Federal Statutes have little or no impact.  State laws regarding custody vary a great deal. There are purportedly states where a child decides which parent he/she will live with after age 12 and a state which bars an award of custody to a parent who has committed adultery.

Maryland is not among the foregoing states, nor is Hagerstown and the Washington County Court system.  Furthermore, at the time of this publication verification of these other states is not possible, however, the very rumor of such laws is an incentive for some parents to flee Washington County Maryland and seek out these unusual jurisdictions.

 

In the 1970s divorce became a growing component of our culture and with it came a growing problem of parental kidnapping.  Parents faced with a divorce would remove their child(ren) from Washington County, Maryland where the family had traditionally resided in search of a jurisdiction which might be more favorable to that parent’s cause.

The nationwide response was the establishment and adoption of the Uniform Child Custody Jurisdiction Act  (UCCJA) and subsequently the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

In Washington County, Maryland these statutes are codified in Maryland Law under the Maryland Annotated Code, Family Law Article Section 9.5 et seq.

Timothy Conlon, Esquire for The Custody Place

Child Custody Lawyers in Hagerstown MD

301 865-1101 Call 24/7

Consultations always Free

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Child Support in Washington County Maryland

In Hagerstown Maryland and other communities in Washington County, the enforcing and collection agency for child support is the Washington County Department of Social Services (hereinafter DSS) located at 100 South Potomac in Hagerstown.

Md. FAMILY LAW Code Ann. § 5-1001  (2013)

§ 5-1001. Definitions

  (a) In general. — In this subtitle the following words have the meanings indicated.

(b) Administration. — “Administration” means the Child Support Enforcement Administration of the Department.

Parents living anywhere in Washington County, from Williamsport to Sandy Hook, who wish to open a child support case are charged 25.00 and are required to complete an application.

For example, a mother in Funkstown might apply for support including an Affidavit of Paternity.  At this point the case is assigned a CSES number which is a child support “account.”  If the “putative” father in Boonsboro contests paternity, he is required to do so in writing.

If a parent is the recipient of any “services” including Maryland State Health Insurance, Day Care Vouchers, WIC or TCA they are required to participate in the establishment and collection of child support .  Then the Maryland Child Support  Administration may prosecute the matter as provided in Maryland Annotated Code, Family Law Volume Section 5-1011:

§ 5-1011. Administration as complainant

  (a) Representation. –

  (1) The Administration may be the complainant in any proceeding under this subtitle in which the Administration is providing child support services under federal law.

After a Complaint for Establishment is filed by DSS, and paternity is established, the parents will be required to go to the Hagerstown office and participate in a “Support Conference” as described in Maryland Annotated Code.

The parents will be required to bring documentation necessary for calculation of the appropriate Maryland Child Support Guidelines.  These documents include, but are not limited to income, work related child care expenses, health insurance expenses for the child and other expenses as may be appropriate.

Following the Support Conference, an agreement is usually reached and the child support amount is established along with any arrearages which might be appropriate.  Once the child support is established the payor parent’s wages will be attached.

The wage garnishment would be effective on a weekly, bi-weekly or monthly basis depending upon when and how the payor parent is paid.  A salesman for a business in Keedysville might be paid monthly, while a seasonal employee in Smithsburg might be paid weekly.

The funds are credited to the respective parents’ CSES account number and can be confirmed by phone or on the internet.

Timothy Conlon, Esquire for The Custody Place

Custody Lawyers in Hagerstown MD

301 865-1101 Call 24/7

Consultations always Free

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