In the Spring 2022 edition of Family Law Counts:
Preparing a Custody Case
In an ideal world, all custody cases would be worked out by agreement and no contested court hearings would be needed. But for those parents who are unable to settle their custody case, thorough preparations are crucial to presenting the best possible case to a judge. While some parents are focused on criticizing the other parent, judges are more interested in finding out about each parent’s strengths. While the other parent’s weaknesses are not unimportant, they should be part of balanced presentation of the evidence. It’s a truism that every case is different; yet there are some common strategies that should be employed when preparing for a custody hearing. The starting point is knowing what information is important to a judge tasked with making a custody decision. That knowledge will serve as a guide to developing evidence to present in court.
When Maryland judges are called upon to make a custody decision, they will invariably refer to the case of Montgomery County Dept. of Social Services v. Sanders, which is considered the seminal authority for custody factors that a judge must consider. The following is a list of the more important factors enumerated in Montgomery County v. Sanders (which is the case’s common moniker among lawyers and judges).
- Fitness of the parents
- Character and reputation of the parents
- Each parent’s desired outcome
- Any agreements the parents have made about custody
- Willingness of the parents to share custody
- Each parent’s ability to maintain a child’s relationship with the other parent and relatives
- Preference of a child
- Capacity of the parents to communicate and to reach shared decisions
- Geographic proximity of the parents’ homes
- Ability of each parent to maintain a stable and appropriate home;
- Financial status of each parent;
- Demands of parental employment;
- Age, sex and health of the child;
- Relationship established between the child and each parent;
There are two primary forms of evidence that will be presented in court: witness testimony and physical evidence. Plans to develop both forms of evidence should be made well before a court hearing is scheduled. Witnesses must be identified and possibly interviewed sufficiently in advance of a hearing in order to select the most helpful witnesses and prepare them for their testimony. The most important witnesses will be of course the parents themselves. Preparing an outline of a parent’s testimony will give the parent a feel for the flow of the testimony and the subjects to be covered. It also contributes to presenting testimony in a logical sequence and at a steady pace, both of which will be appreciated by the presiding judge. Physical evidence can take several forms, including photographs, a child’s grades, school attendance records, and medical reports, a parent’s tax returns and pay statements, an apartment lease or property deed, and emails/text messages between the parents.
Testimony of a parent must address their fitness first and foremost. Starting with a parent’s background will provide a good foundation for the rest of the testimony. Depending on the parent’s experiences, a good place to start is with education, current employment (or employment history if not currently employed) and military service, if any. Given that the focus of custody case is the children, the parent should be prepared to talk about each child’s health (particularly, anything that requires special attention or treatment), schooling (academic strengths and weaknesses, possible special educational needs), activities, social skills, friendships, and relationships with relatives (siblings, grandparents, cousins, etc.). Introducing a photograph of the children—especially one in which the parent also appears—as evidence allows a judge to visualize the children and adds context to the custody decision.
A parent should testify about the ways they are involved in the children’s routine care, education, medical care, and activities. The thing that will most drive a judge’s custody decision is the desire to assure that a child’s routines are maintained and basic needs can be met. One way to demonstrate a parent’s ability to care for the children is to elicit testimony about the parent’s daily routines with the children, from morning to night. Even in cases where one parent was historically the primary caregiver, it is likely that the other parent will assume greater child care responsibilities after the parents separate. To the extent that a parent’s skill as a caregiver has developed during a period of separation that can become an important part of the testimony, especially from witnesses who have had an opportunity to observe the parent’s interactions with and care of the children. A parent’s work schedule must also be presented in order to give context to a parent’s ability to care for the children around their schedule. Where the demands of a parent’s employment or profession interferes with their ability to personally care for the children, evidence of appropriate child care must be presented, whether by a trusted family member, a qualified childcare worker, or a licensed daycare facility. Testimony from parents about their methods of discipline should also be elicited. Given the prevalence of social media and technology today, a parent should address their rules for a child’s use of devices.
Not to be overlooked is evidence of a child’s home environment. A parent should be prepared to describe their home in terms of the type of home (e.g., apartment, townhouse, single family), the number of bedrooms (and sleeping arrangements, if not obvious), the types of other rooms, a description of the immediate neighborhood, and the home’s proximity to the children’s schools. Photographs of the home’s exterior and interior can add greatly to testimony in this area. If there is any question about a parent’s stability in their home, a copy of a deed or a lease may be offered as evidence.
It is reasonable for a parent to testify about their concerns regarding the other parent’s ability to care for the children. However, be careful not to unfairly criticize the other parent or to exaggerate the other parent’s weaknesses. When concerns are warranted and the facts support them—such as where there is a history of child abuse or neglect, substance abuse, or untreated mental health issues—have at it. But going overboard can backfire. Prudence and judgment must be employed here.
Another important subject of a parent’s testimony is the ability and willingness of the parents to communicate with each other. Where communication between parents is healthy, that may be all that needs to be said on the topic. But where the opposite is true, a history and the pattern of communications between parents may be the most important evidence in the case. Communication skills directly and profoundly impacts the parents’ ability to make joint decisions about significant matters that affect their children. Those areas include education, health, extracurricular activities and religion. The ability of parents to make joint decisions is the penultimate factor for a judge in deciding whether to award joint legal or sole legal custody. Regardless of a parent’s position on the issue of legal custody, a parent must be prepared to testify about the history of the parents’ efforts to reach joint decisions. As much of those conversations take place today via email or text messages, samples of those written conversations should be introduced as evidence to support a parent’s position.
A parent should also be prepared to call witnesses in support of their case. As a parent’s character and reputation are among the more important factors for a judge to consider, people who can speak positively about them will be crucial witnesses. Those witnesses are likely to be relatives or friends of the parent on whose behalf they will testify. That is expected. So, the credibility of the witnesses can make or break the case. Also important is a witness’ opportunity to have developed an opinion about a parent’s character and reputation. The length and nature of a witness’s relationship with the parents will impact the weight of the witness’s testimony. Character witnesses that can serve this role are the children’s coaches, teachers and instructors, or a parent’s employer. They can also provide insight into a child’s relationship with a parent by describing their observations of parent-child interactions. Interestingly, judges are known to weigh heavily the testimony of the children’s grandparents because it is widely understood that grandparents care more about their grandchildren than they do about their own children, and thus are willing to be critical of their own child (when justified) in order to do what’s best for their grandchildren.
Parents often ask whether a child’s preference about custody is important to a judge. The answer is…it depends. The age and maturity of the child controls here. Judges usually won’t consider the preference of a child less than 11 or 12 years old—by convention and not as a matter of law. Even when a child’s preference is presented and considered, the preference is not controlling and a judge may disregard it. The weight a judge gives to a child’s preference depends on the circumstances. Is the preference expressed by a child genuine or is it the result of a parent’s undue influence? The maturity of a child, the closer the child is to the age of majority (18, at which point the court no longer has authority over a child), and the likelihood that a child will defy a custody decision and follow their own will (for instance, by not getting in the car for a custody exchange, or by taking the bus from school to the home of whichever parent they choose to live with), will all influence the degree to which a judge defers to a child’s preference.
Among the areas of inquiry of a parent that should be presented at the conclusion of the parent’s testimony—highlighting its significance and giving it, hopefully, lasting effect—is a statement of the parent’s desired outcome. This testimony should cover both legal custody (decision making) and physical custody (the schedule of time spent with each parent). For instance, if a parent is seeking sole legal custody, that should be made absolutely clear—and will be most effective if stated by the parents themselves. It is just as important for a parent to articulate the reasons for their position. Given the importance of this testimony, a parent should be prepared well before the day of trial to present it.
If you are involved in a custody dispute or if someone you know (and care about) has questions about their custody case, feel free to contact me, Fred Kobb, at email@example.com or (410) 659-1348. My colleagues and I have appeared in most every jurisdiction in Maryland and we have offices in Baltimore, Towson, and Bethesda. We have also become very comfortable with Zoom (Covid’s silver lining), so remote consultations can easily be arranged.
 38 Md. App. 406 (1977).
 And precisely because such written communications will likely end up as evidence in the case, a parent needs to be warned early in the process about what they put in writing to the other parent or to anyone else, and what they post on social media.
Insight from the Maryland Legislature on Tracking Devices
From time to time, clients in family law disputes ask whether it is legal to put a GPS tracker on another person’s vehicle. This investigative tactic allows a party to track the whereabouts of the other party, which may provide evidence to support a claim of adultery or unfitness as a parent. The answer to this question, as well as many other legal questions, is, it depends. For the time being, installing a GPS tracking device on a car is legal, provided that: (1) the vehicle is titled in your own name, alone; (2) there are no active protective orders issued between you and the person operating the vehicle; and (3) the tracker is not collecting audio recordings.
Notwithstanding that information, whether one should implement such a plan is another question. One should keep in mind that the existence of a tracking device and the information collected from it are discoverable during the course of a lawsuit, so you may be obligated to disclose that you engaged in such investigative measures. There may also be some questions about the value and admissibility of the evidence collected from a tracking device.
And yet one more consideration to keep in mind is that the law may soon be changing, which will squarely impact the answer to this question. The legislature in Maryland is in full swing and House Bill 148 seeks to expand the criminal definition of stalking to include, among other things, conduct through the use of a device that can pinpoint or track the location of another without the person’s knowledge or consent. This bill would address GPS trackers on a vehicle as well as a cellphone. So, if you are considering this investigative tactic, keep your eye on this bill, as tracking a person’s whereabouts without the person’s knowledge or consent may soon fall within the criminal definition of stalking.