On January 10, the Maryland General Assembly begins its 2018 legislative session. The Maryland State Bar Association’s (MSBA) Family and Juvenile Law Section Council’s (FJLSC) Legislative Committee actively monitors family law and related legislation, testifies in Annapolis, meets with legislators, and educates Section members about legislative developments. I have the pleasure of chairing the FJLSC’s Legislative Committee during the 2018 session.
The following is a brief preview of some anticipated family law and related bills in the 2018 legislative session.
Divorce – Mutual Consent
In the 2015 session, the Legislature enacted a new ground for divorce – Mutual Consent. At present, the Mutual Consent ground (Fam. Law Art., §7-103(8)) is limited to couples who do not have minor children in common. There was an unsuccessful attempt in the 2017 session to eliminate the requirement that both parties appear at the divorce hearing. While this may not be attempted again in 2018, there will be renewed efforts from the 2016 session to expand the ground to all couples. Specifically, to eliminate the requirement that the spouses have no minor children in common. The FJLSC supported eliminating the exclusion of couples with no minor children in common during the 2016 session.
- 7-103(8)(ii)(2)’s reference to §8-208 regarding use and possession is an artifact of the original draft (which did not exclude couples with minor children in common), which may result in a corrective bill or may remain if attempts to expand the ground to include couples with minor children succeed.
Divorce – Adultery
The 2018 session is expected to see two related pieces of legislation from different sponsors regarding adultery: 1) to decriminalize adultery, so it is no longer a misdemeanor; and, 2) to eliminate it as a ground for divorce. On the one hand, eliminating adultery as a ground would not prevent a spouse from raising the circumstances that contributed to the estrangement of the parties, since these are considerations for a monetary award and alimony. Nor would it prevent a parent from raising adultery in a custody case if it resulted in harm to the child. On the other hand, adultery is one of few grounds for divorce that entitle a spouse to file for immediate divorce (without waiting period) and without separation. Eliminating one ground invites consideration of all the grounds and whether an overall is in order. The FJLSC has not taken a position on these anticipated changes and wants to hear from you about this and any other updates you would like to see to the grounds for divorce. Please send your thoughts to Lindsay Parvis.
Parenting and Custody
The Commission on Child Custody and Decision-Making drafted a model custody statute, which was introduced in substantially similar form in the 2015 session. It was unsuccessful in the 2012, 2016, and 2017 sessions. A version of the model custody statute is expected to be introduced again in the 2018 session, likely updated to reflect recent legislative and caselaw developments regarding third parties and parent disability in custody cases. The FJLSC has supported, and continues to support the model statute.
As ever, legislation proposing a presumption for joint physical and joint legal custody will inevitably be reintroduced this session. The FJLSC continues to oppose a presumption.
For my personal thoughts on a presumption versus shared parenting, please read “Joint Custody Presumption v. Shared Parenting Advocacy”.
Since 2016, there have been multiple failed attempts by Delegate Vanessa Atterbeary to pass legislation increasing the minimum age to marry in Maryland. The 2017 session saw two such attempts: 1) to increase the minimum age from 15 to 18-years-old, with exceptions for 16 and 17-year-olds who have parental or guardian consent and meet other qualifications; and, 2) to increase the minimum age from 15 to 18-years-old, without exceptions. In 2017, the second of the two passed the House, crossed over to the Senate, passed the Senate with amendments, landing and dying in Conference Committee without resolving the differences. It is anticipated that these efforts will be renewed in 2018. Increasing the minimum age to marry is important for public policy reasons – because it can be used to conceal human trafficking, domestic violence, child abuse, and statutory rape. But also for legal reasons. Marriage is not an emancipating event. A married minor does not have legal capacity in most instances, including to file suit on his/her own behalf for divorce and protection from domestic violence. A next friend (prioritizing the parents, who under current law likely consented to the marriage) is required. Maryland does not have an emancipation statute, which could address some of these concerns. Opponents to increasing the minimum age to marry to 18 without exception point to minors who wish to marry of age military spouses, and so provide benefits for the spouse and any children. We shall see what the 2018 session brings. The FJLSC has not taken a position on this bill and welcomes your input.
For more detailed discussion of this subject, please read “Marrying Minors – More than Meets the Eye”.
A proposed emancipation statute is expected this session, likely dovetailing with an increase in the minimum age to marry, even if preserving the right for those under age 18.
While not specifically a domestic violence bill, the Rape Survivor Family Protection Act has a long legislative history without passing. Progressing further in the 2017 than any other session – passing both the House and Senate but in different forms – the differences went unreconciled and it died in Conference Committee. This same fate is not likely in the 2018 session with sponsorship announced from both House Speaker Busch and Senate President Miller and ongoing efforts of its tireless proponents. The MSBA supported this legislation in 2017. If passed, the Act would provide an expedited process for terminating rapists’ parental rights, so the child can be raised or adopted without the parent’s involvement (and interference).
Please look for legislative updates, debriefs, and post-session summaries throughout and after the 2018 session concludes. If you are a Section member and wish to volunteer for the Legislative Committee, please contact me.
Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked In, Facebook, LindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.