What is AA v. Ab D?

AA v. Ab D is a 2020 Court of Special Appeals opinion involving these important concepts in child custody cases:

• The court’s obligation to children when deciding child custody.
• Children’s rights to have their best interests fully considered at trial.
• Consequences for parents who do not comply with court procedure.
• Not limiting the court’s consideration of best interests evidence.

In result, the Court found that best interests of the child must be considered when deciding whether to refuse to receive evidence at a custody trial as a discovery sanction. (A discovery sanction is a consequence of not providing information and documents in response to discovery requests.)

The Court said: “ur decisional law has long recognized that a court commits legal error when it makes a decision that impacts a custody determination without first considering how that decision will affect the child’s ‘indefeasible right’ to have his or her best interests considered.”

The Court also instructed that the sanctions imposed “not impact the court’s analysis of the children’s best interest.”

Why does this matter?

One way to read AA v. Ab D is not to exclude evidence about the children’s best interests, full stop. If correct, the impact would be very broad.

AA v. Ab D addresses one issue (discovery sanctions). But this concept already applies to another procedural consequence: default judgments (a judgment against a person served with a lawsuit that doesn’t respond, to limit and/or prevent their participation at trial).

One can think of other examples where procedural non-compliance & best interests overlap. But a few:

• Expert witness designations – late or not filed at all;
• Failure to appear at a hearing or trial;
• Witnesses or exhibits not listed on a pretrial statement; or,
• Not finishing one’s case in the amount of trial time scheduled.

AA v. Ab D focuses on the court taking action because a parent didn’t comply with court procedure.

But, there are also other ways courts limit consideration of best interests evidence that have nothing to do with party non-compliance.

Does AA v. Ab D apply in other ways?

As written and considering the default judgment example (which is also procedural non-compliance), no.

Examples of when best interests evidence might be excluded (when procedural compliance is not the issue):

• Admissibility of evidence;
• Whether to grant a third party motion to intervene;
• Whether to consider a request for emergency relief; or,
• Whether to dismiss a case or claim.

In these examples the same concepts behind the AA v. AB D decision are also at work: the court’s obligation to children, children’s rights to full consideration of their best interests, and not excluding evidence of best interests factors.

Should AA v. Ab D also apply in these situations? That remains for our appellate courts to decide. At trial, make the point while being candid about the law. If not made, the opportunity is likely lost.

So, are there limits to AA v. Ab D?

There are an increasing number of unreported appellate opinions applying and interpreting AA v. Ab D about:

• Discovery Sanctions
• Expert Witnesses
• Witnesses

The results are…interesting & inconsistent.

Admittedly, there’s a tension at work – between maintaining the orderly flow of cases and protecting the best interests of children. Made all the more complicated by the incredibly high number of parents who represent themselves in court.

The takeaways?

When the court has to decide whether to exclude best interests evidence, AA v. Ab D invites one to point the court to that opinion and:

• Identify how the decision to be made limits the court’s access to best interests evidence
• Proffer the evidence potentially to be excluded
• Emphasize the court’s obligation to the children and their best interests
• Ask the court to first consider if the decision will limit the court’s ability to consider the best interest factors
• Identify the specific best interest factors impacted
• (Despite the unreported opinion linked above to the contrary), invite the court to state its analysis on the record

After all, the Court of Special Appeals stated: “Plainly, a child’s best interests are best attained when the court’s decision is as well-informed as possible.”