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Take Advantage of these Resources for Your Maryland Custody Court Case

During a custody case, most parents come together to make decisions based on the child’s best interests. If you and your co-parent disagree about what is best for your child, however, and your case lands in Court, how will a judge (who has never met you or your child) decide what is best?

After all, a trial is only a small window of time where the judge will receive a modicum of the information available about you, your co-parent, and your child. So how can you ensure that the information most helpful to the judge will be presented at your custody trial? Luckily, in Maryland, there are several resources available.

An Attorney For Your Child

There are three classifications of attorneys that may become involved in your custody case.

A Child Privilege Attorney is appointed by the Court when a child has his or her own therapist or mental health treating professional. Even though your child is a minor, he or she has their own privilege with their treating therapist, and neither parent is able to waive that privilege. This means that neither parent can require the child’s therapist to testify, for example.

So the Court can appoint a Child Privilege Attorney whose sole role is to make a decision about whether to waive or maintain the child’s privilege with his or her therapist. If the privilege is waived, then the therapist can testify at trial (or through the discovery process). If the child’s privilege is not waived, then the therapist cannot testify, and neither parent can override the Child Privilege Attorney’s decision.

Next, the Court can appoint a Best Interest Attorney (BIA) for your child (formerly called a Guardian Ad Litem). A BIA’s role in the case is to represent the children’s best interests. This may be the same as what the children themselves are asking for, but not always. The BIA participates in the case just like the parents’ attorneys, for example by issuing discovery requests, taking depositions of witnesses, and participating at trial in support of what the BIA believes will serve the children’s best interests. The BIA does not issue a report or a recommendation to the Court and does not testify; rather the BIA puts on evidence at trial to support the BIA’s position about what custody arrangement will serve the children’s best interests. A BIA may also serve in the Child Privilege Attorney role as part of his or her work in the case.

Finally, a minor child can have a Child Advocate Attorney (CAA) in a custody case, which is where the child’s stated desires and goals are advocated for by his or her own attorney. A CAA does not make an independent decision about what is best for the minor child, rather the CAA participates in the case by advocating for what the child wants. A CAA is rare, however, since the child needs to have considered judgment in order to state an opinion about the desired outcome of the custody case, and because of the public policy considerations weighing against empowering young children to be decision-makers for their own custodial situations.

Custody Evaluations

There are two types of custody evaluations: private custody evaluations and Court custody evaluations. The goal of either, however, is the same: the evaluator undertakes an investigation to gather information about the parents and the children, forms an opinion about what custody arrangement would serve the children’s best interests, and then offers his or her opinion to the Court in the form of a recommendation. At trial, a custody evaluator would testify as an expert witness, and explain the process he or she undertook to come to their expert opinion, as well as what his or her expert opinion/recommendation is.

The differences between the two types of evaluations have to do with the kind of investigation that happens, the expertise of the evaluator, and the cost. The evaluator in a private custody evaluation is typically either a Ph.D. or a Psy.D., and the investigation tends to take longer and be more thorough. In addition to interviewing the parents, the children, and third party collateral witnesses; and reviewing information provided by the parents (and their attorneys); a private custody evaluator often also performs psychological testing on the parents and/or the children, which then informs the evaluator’s opinion and recommendations. A private custody evaluation often takes 4-6 months to complete, and typically yields a detailed and lengthy written report.

In Montgomery County, the Circuit Court employs an office of Licensed Clinical Social Workers who perform home investigations for adoption placements as well as Court custody evaluations. The Court custody evaluation process typically takes 6-8 weeks, and involves (in non-COVID times) in-person interviews of each parent and the children, at least one home visit at each parent’s home during their respective custodial time, telephone interviews with collateral witnesses, and review of documents provided by the parents (and their attorneys).

The Court custody evaluator then gives his or her report and recommendations on the record at a Settlement Conference held by the Court, which can then be transcribed if a written report is later needed. The Court custody evaluator may also review prior test results for either party (such as for a substance abuse evaluation or prior psychological testing), but a Court custody evaluator cannot conduct such testing themselves. A Court custody evaluation in a free resource (although the Court has to order it, so they do not happen in every single custody case); whereas a private custody evaluation can cost tens of thousands of dollars.

With your attorney’s guidance, you may choose to employ one or more of these resources as part of your case in order to attain your goals and, most importantly, to protect your child’s best interests.

Heather Collier and Casey Florance are divorce attorneys who handle cases involving domestic relations and family law. For more information on Maryland custody cases, contact Heather at hscollier@lerchearly.com or Casey at cwflorance@lerchearly.com.

This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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