Rule 9-204.1

Introduction

The new year brings with it new and updated Rules of Civil Procedure in Maryland’s child custody cases. Starting January 1, 2020, for cases filed on or after that date and “insofar as practicable” to all cases pending then, the new rules will apply. (How, practically, the new rules will apply to already filed custody cases remains to be seen.)

These posts summarize and discuss the Rules but are no substitute for reading the Rules themselves. I don’t pretend to know all the answers (or any, for that matter) about these Rules; rather, my discussion here is nothing more than my musings and reflection upon what is undeniably an important development for families experiencing parenting litigation and family law attorneys.

I use the terms “parties” and “parents” interchangeably here; so, when referring to “parents”, I also mean any non-parent litigants in cases involving custody and parenting of children.

Additionally, the forms referred to in Rules 9-204 & 9-204.1 (Parenting Plan Tool) and 9-204.2 (Joint Statement) have not, as of the date of these posts, been published by the Administrative Office of the Courts. I’ve not seen these forms and will comment on them in a future post if I have any insight or musings to offer.

Finally, due to the length of this piece, I’ve broken this into multiple, shorter pieces, each of which discusses a specific Rule in detail.

Overview

Where Are These Changes?

The changes appear in four (4) places:

• Existing Rule 9-204 regarding the parenting educational seminar in child custody cases;
• New Rule 9-204.1 defining important parenting terms and establishing a parenting plan tool and settlement process;
• New Rule 9-204.2 creating a mandatory Joint Statement regarding parenting to be filed in contested custody cases that do not settle; and,
• Existing Rule 9-205 regarding mediator’s role assisting with the preparation of the Joint Statement required in Rule 9-204.2.

What Changes? – Rule 9-204.1

Broadly speaking, Rule 9-204.1 does several distinct and important things:

• Defines commonly used terms in custody cases (Decision-Making Authority/Legal Custody; Parenting Plan; Parenting Time/Physical Custody);
• Requires Courts to inform parents of and direct parties to the Parenting Plan Tool;
• Articulates best interest factors regarding decision-making authority and parenting time; and,
• Requires parties who do not settle to submit a Joint Statement regarding parenting per Rule 9-204.2.

Definitions

Definitions are found in Section (a). In my opinion, the definitions attempt to shift the language we use about the legalities of the parent-child relationship. Specifically, shifting away from the possessory and polarizing term of “custody” and toward “decision-making” and “parenting”. This Section also clearly states that the “definitions apply, except as expressly otherwise provided or as necessary implication requires”. More about this below in my discussion of Are Rules Law?

“Decision-Making Authority” is defined to include decision about medical care, mental health, education, religious training, and extracurricular activities, also referring to itself as legal custody. Of all the definitions, this is the most detailed, leaning toward the exclusive instead of inclusive. By that I mean, the Rule doesn’t say that it is “including but not limited to” or applies to other decision-making subjects that parties may wish to address (such as, childcare providers or discipline). The Rule does not prevent parents from including other subjects important to their specific family. Hopefully, parties will not feel limited by the topics listed in the Rule and will feel empowered to go beyond if they choose.

“Parenting Plan” is simply defined as “a written agreement about how parties will work together to take care of a child.” Simply said. I am very eager to see the Judiciary’s Parenting Plan Tool and whether the standardized form is as equally simple.

“Parenting Time” is defined as “where a child lives and the amount of time he or she spends with each party”, also referring to itself as physical custody. Curiously lacking is language such as weekdays, weekends, school year, summers, holidays, or vacations. Perhaps these are covered in more detail in the much anticipated Parenting Plan Tool.

Notably, none of the defined terms use works like “joint”, “shared”, “tie-breaker”, “sole”, “primary”, or even worse “visitation”, “access”, “custodial”, or “non-custodial”. Perhaps wisely so, given how polarizing such labels are.

Parenting Plan Tool

Rule 9-204.1(b) requires the Court to inform and provide the parents in their first court appearance (so, likely the Scheduling Hearing/Conference) about the Maryland Parenting Plan Instructions and Parenting Plan Tool. So many of the Court’s resources for families require return trips to court, more time missed at work, and occur according to the Court’s schedule and not the family’s convenience. I see this Section of the Rule as prioritizing parents and families over the Court and legal process, providing them with a resource (the Parenting Plan Tool and Instructions, in hard and electronic versions) that puts control over decision making into the parents’ hands early in the case.

What is the Parenting Plan Tool? Don’t know until it’s published by the Maryland Judiciary. I hope it includes a standardized parenting/custody agreement form. Because the Maryland Judiciary has yet to publish one, which is unhelpful to parties with limited financial means who cannot hire an attorney to draft one.

Best Interest Considerations

In Maryland, the child’s best interests are the basis for determining decision-making and parenting time. Where, though, are the best interests factors stated? Until now, in various reported Maryland appellate opinions (which I’ll refer to as “case law”). And, Maryland’s legislature has yet to pass a statute consolidating those case law factors.

Welcome new Rule 9-204.1(c), which sets out in one place, sixteen (16) best interest factors that parents (and Courts, per Rule 9-204.2(d)) “may consider”. Some are the same as existing case law; others are similar; and, still others different, but not surprising, and focused on child-development and social science (such as, frequent, regular, and continuing contact with a parent who can act in the child’s best interests; the child’s physical and emotional security and protection from conflict and violence; the child’s developmental needs; the child’s day-to-day needs; how parents place the child’s needs above their own; and, how parents protect children from conflict).

If Parties Don’t Settle

Finally, if parents do not settle with a written parenting plan, then they are required to complete and submit to the court a “Joint Statement of the Parties Concerning Decision-Making Authority and Parenting Time” (which I refer to here as “Joint Statement Regarding Parenting”), referring to new Rule 9-204.2.

Are Rules Law?

A quick detour before moving on to new Rule 9-204.2…

The definitions and best interest factors contained in Rule 9-204.1 are significant because the law is made of words and words matter.

Rule 9-204.1(a) tells us that the definitions apply “except as expressly otherwise provided or as necessary implication requires”. Rule 9-204.1(c) tells us that the parties “may consider” (instead of “shall consider”) the best interests factors. Rule 9-204.2(d) tells us that the Court “may consider” (instead of “shall consider” or “is required to consider”) the best interest factors.

Then, Maryland Rule 1-201(c) states that “either these rules nor omissions from these rules supersede common law or statute unless inconsistent with these rules.” Which is consistent with Maryland’s Constitution, Article IV, §18 (“rules and regulations…shall have the force of law until rescinded, changes or modified by the Court of Appeals or otherwise by law”). And, cases tell us that rules have the force of law and will be construed to harmonize with statutes, not to produce an unreasonable result.

The short answer is yes, but…

Until we have law interpreting and applying these new Rules, we won’t know for sure if or how the new Rules will be interpreted in light of existing custody case law. In the meantime and to the extent the Rules speak about existing custody law and the best interest factors, the new Rules appear to defer to existing law and discretion of parents and Courts (who “may” but not “shall” consider them). A harmonious reading of existing law and the new Rules is entirely possible. Considering the Maryland’s legislature’s inability to pass any similar law (despite repeated efforts over many years), the new Rules are a welcome consolidation of existing case law and statutes, while modernizing the vocabulary we use to describe families and parent-child relationships.

In Conclusion

These developments are welcome (and long overdue) updates to how we approach and think about parent-child relationships in litigation, our vocabulary around those relationships, and access to forms for parties navigating contested parenting litigation and resolving their parenting disputes. How these Rules and their anticipated (and yet unseen) forms unfold in practice remains to be seen. They are, certainly, an improvement upon what we have had until now – nothing.

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.

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