Rule 9-204.2

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 9-204.2

New Rule 9-204.2 establishes a new court form for contested custody cases and a process for its preparation, filing, consideration by the Court, as well as consequences if the form is not filed with the Court.

The Joint Statement Form

Rule 9-204.2 introduces the Joint Statement of Parties Concerning Decision-Making Authority and Parenting Time (which I will refer to here as Joint Statement Regarding Parenting for ease). The Judiciary is responsible for creating and publishing a standardized form (Rule 9-204.2(b)), which has yet to be published as of this writing.

The concept is reminiscent of the Joint Statement Regarding Marital and Non-Marital Property required by Maryland Rule 9-207, in which both parties are required to identify items of property and their positions regarding each item’s title, value, and marital/non-marital sources. It is a spreadsheet that provides a single reference for the Court about the parties’ positions on each item of property.

Presumably, the Joint Statement Regarding Parenting will serve the same purpose – to summarize for the parties and Court the parties’ positions on parenting time (hopefully to include proposed schedules for the school year, summers, holidays, and vacations) and decision-making authority. Not only will this force parents to articulate this for the Court in advance of trial, it will educate the Court about the specific family (for example, what holidays the family celebrates), and will identify disputed and undisputed areas (which can simplify trial presentations).

I am curious to see how the language changes of Rule 9-204.1 translate into the standardized Joint Statement Regarding Parenting form. To what extent will the form refer to decision-making authority instead of legal custody? Or, parenting time instead of physical or residential custody? And, to what extent will the form refer to joint, shared, tie-breaker, sole, or primary (considering these are not referred to in Rule 9-204.1 at all)?

The Joint Statement Process

A Joint Statement Regarding Parenting is required only when parties do not reach a comprehensive Parenting Plan (Rule 9-204.2(a)). Rule 9-204.2(c) sets out a series of deadlines for exchanging and filing the Joint Statement Regarding Parenting, with either the settlement conference or trial as the triggering dates.

The Rule is silent about updating the Joint Statement Regarding Parenting after its original filing but before trial. Section (d) requires the Court to consider the “entire Joint Statement” before rendering its decision. Since the Court “shall” consider the Joint Statement Regarding Parenting, the better practice will probably be to submit any updates before or at least during trial. For example, if the Joint Statement Regarding Parenting becomes a reference point for arguing an attorney’s fees award based upon substantial justification of a party’s position, then timely updates may mitigate against an award. Likewise, timely updates may also save parties from identifying undisputed issues sooner and reducing trial time.

If a party willfully fails to cooperate with the Joint Statement Regarding Parenting process, then the court may enter “any appropriate order in regard to the noncompliance” (Rule 9-204.2(e)). What an “appropriate order” may be remains to be seen. An order to compel? Contempt? Sanctions limiting a party from presenting evidence, witnesses, or testimony (which is not strongly supported in child custody case law)? The Committee Note for this Section makes clear that failure to comply with this Rule cannot be the basis for denying a party’s request for decision-making authority or parenting time. I take this to mean that a party who fails to submit or contribute to the Joint Statement Regarding Parent will not automatically lose his/her case. But, I am curious if failure to comply could be a basis for limiting evidence.

As often happens in the context of Rule 9-207’s Joint Statement Regarding Marital and Non-Marital Property, non-compliant parties are often instructed at the start of trial to go into the hallway and complete the form before trial begins. One might expect the same for the Joint Statement Regarding Parenting.

Court’s Review & Consideration

Rule 9-204.2(d) requires the Judge or Magistrate handling the trial to consider the entire Joint Statement and instructs that the Court “may consider” the best interest factors listed in Rule 9-204.1(c). This is an interesting shall/may distinction. As discussed in an earlier post, the Rule both leaves intact the Court’s discretion and refrains from definitively changing established case law on best interest factors.

While the Rule does not go so far as to require the Court to state its specific reasoning for its decision, the only way to be sure that the Court considered the Joint Statement Regarding Parenting as the Rule requires is for the Judge or Magistrate to state this on the record. This invites two likely possibilities: either that the Court will simply and generally say, on the record, that it considered the Joint Statement Regarding Parenting when making its decision or the Court will state how it considered the Joint Statement Regarding Parenting and the weight given. One hopes to see more of the latter.

This is not uncommon. Currently, we see Judges and Magistrates who state each best interest factor from case law and the facts that relate to that factor. While the Rule does not require consideration of the Rule 9-204.1(c) best interest factors, perhaps Judges and Magistrates will incorporate these into their decisions after January 1, 2020.

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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