If the court has entered an order requiring the noncustodial parent to pay child support and the noncustodial parent is able to pay the child support however refuses to pay the child support you can seek to enforce the Court's child support order by filing a petition for contempt. Rule 15-207 mandates the procedure to be followed in a civil contempt hearing. Subsection (e) focuses specifically on child or spousal support enforcement actions and provides that the alleged contemnor may be found in contempt upon a showing by clear and convincing evidence that he or she has not paid the amount owed. If the court makes a finding of contempt, it must issue an order specifying the amount of arrearage, the sanction, and how the contempt may be purged. Id. at 15-207(e)(4) (2001). The court may not make a finding of contempt, however, if the alleged contemnor proves that enforcement is barred by limitations or that he or she has never had the ability to pay despite his or her best efforts to obtain the funds necessary. Id. at 15-207(e)(3) (2001). In addition to the safeguards provided by Rule 15-207, the Court of Appeals has held that a court may not incarcerate a civil contemnor unless he or she has the to purge the contempt. As such there are actually two battlegrounds in any civil contempt proceeding. One is the initial finding of contempt and two is proof of the contemnor’s present ability to pay the amount of the purge provision.
Pursuing enforcement of child support orders can be expensive for both parties. Often times the best way to proceed with ensuring that you are paid your child support is to have the child support paid through the Department of Child support enforcement by wage withholding order. Now when the noncustodial parent fails to pay the Department of Child support enforcement will go after him. If you have any questions please feel free to call me at 1-888-760-7339 or visit my website at www.yourmarylandlawyer.com
Monday, May 17, 2010
Thursday, May 06, 2010
Restrictions on Visitation Access in Divorce in Maryland
Maryland has declared that a parent's interest in raising a child is a fundamental right that cannot be taken away unless clearly justified. In re Adoption, 103 Md. App 1, 12,651 A 2d 891, 894 (1994). Juxtaposed against this fundamental right is the state's primary obligation to see to the protection of those who cannot protect themselves. Maryland courts have long recognized that under proper circumstances a Maryland court may restrict or deny visitation Painter v. Painter 113 Md. App. 504, 688 A.2d 479 (1997).
To restrict and control access the court must consider the appropriate factors, must make a specific finding of fact on the record stating the reason for its decision, and there must exist a nexus between contact with the parent and harm to the child. If no clear, direct connection is found, then the noncustodial parent's visitation rights cannot be restricted. Boswell v Boswell 118 Md. App. 1, 701 A 2d 1153 (1997), aff’d 352 Md 204, 721 A 2d 662 (1998).
In Boswell, involving a homosexual father, the court focused on non marital sexual relationships affecting visitation restrictions. The restrictions therein prevented visits in the presence of specified persons and at specified times.
In Boswell, the reviewing court initially took note of the trial court's error. Specifically, the trial court failed to articulate any reason for restrictions on access other than what was characterized as the “inappropriateness” of the father’s homosexual relationship. Further the reviewing court took note of the trial court's failure to state on the record the manner in which the children would be harm by the father’s conduct. The court took particular note that the trial court could not have articulated any harmful effect, since there was no evidence to support such a finding. As such there was no showing that the restriction was necessary to prevent any adverse impact on the children. Clearly there was no nexus between conduct and an actual harm or potential harm.
The Court ultimately declared, “restrictions on access cannot be based solely on speculation, inferences, or presumptions about the likelihood of harm unsupported by adequate evidence”.
The Boswell Court recognized it is not necessary for a court to sit idly by and wait until a child is actually harmed before placing restrictions on visitation. However there must be sound evidence demonstrating that a child is likely to be harmed down the road. The need for a factual finding of harm to the child requires that the court focus on evidence-based factors and not on stereotypical presumptions of future harm. Therefore, before the court restricts the noncustodial parent’s visitation, it must make specific factual findings based on sound evidence in the record. If the court does not make these factual findings, instead basing its ruling on personal bias or stereotypical beliefs, then such findings may be clearly erroneous and the order may be reversed. In addition, if the trial court relies on abstract presumptions, rather than sound principles of law, and abuse of discretion may be found.
Maryland law has made clear restrictions on access cannot be based solely on speculation, inferences, or presumptions about the likelihood of harm unsupported by adequate evidence.
It is erroneous fact finding and abuse of discretion to require supervised visitation as necessary to prevent a harm or potential harm that is not supported by sound fact finding.
When a Court is permitted to place restrictions or limitations on visitation they must be reasonable, and must bear a reasonable relationship to the harm they seek to prevent. An “abuse of discretion" is said to occur "where no reasonable person would take the view adopted by the [trial] court," when the ruling is "clearly untenable, unfairly depriving a litigant of a substantial right ……..." North v North 102 Md App. 1, 648 A 2d 1025 (1994).
To restrict and control access the court must consider the appropriate factors, must make a specific finding of fact on the record stating the reason for its decision, and there must exist a nexus between contact with the parent and harm to the child. If no clear, direct connection is found, then the noncustodial parent's visitation rights cannot be restricted. Boswell v Boswell 118 Md. App. 1, 701 A 2d 1153 (1997), aff’d 352 Md 204, 721 A 2d 662 (1998).
In Boswell, involving a homosexual father, the court focused on non marital sexual relationships affecting visitation restrictions. The restrictions therein prevented visits in the presence of specified persons and at specified times.
In Boswell, the reviewing court initially took note of the trial court's error. Specifically, the trial court failed to articulate any reason for restrictions on access other than what was characterized as the “inappropriateness” of the father’s homosexual relationship. Further the reviewing court took note of the trial court's failure to state on the record the manner in which the children would be harm by the father’s conduct. The court took particular note that the trial court could not have articulated any harmful effect, since there was no evidence to support such a finding. As such there was no showing that the restriction was necessary to prevent any adverse impact on the children. Clearly there was no nexus between conduct and an actual harm or potential harm.
The Court ultimately declared, “restrictions on access cannot be based solely on speculation, inferences, or presumptions about the likelihood of harm unsupported by adequate evidence”.
The Boswell Court recognized it is not necessary for a court to sit idly by and wait until a child is actually harmed before placing restrictions on visitation. However there must be sound evidence demonstrating that a child is likely to be harmed down the road. The need for a factual finding of harm to the child requires that the court focus on evidence-based factors and not on stereotypical presumptions of future harm. Therefore, before the court restricts the noncustodial parent’s visitation, it must make specific factual findings based on sound evidence in the record. If the court does not make these factual findings, instead basing its ruling on personal bias or stereotypical beliefs, then such findings may be clearly erroneous and the order may be reversed. In addition, if the trial court relies on abstract presumptions, rather than sound principles of law, and abuse of discretion may be found.
Maryland law has made clear restrictions on access cannot be based solely on speculation, inferences, or presumptions about the likelihood of harm unsupported by adequate evidence.
It is erroneous fact finding and abuse of discretion to require supervised visitation as necessary to prevent a harm or potential harm that is not supported by sound fact finding.
When a Court is permitted to place restrictions or limitations on visitation they must be reasonable, and must bear a reasonable relationship to the harm they seek to prevent. An “abuse of discretion" is said to occur "where no reasonable person would take the view adopted by the [trial] court," when the ruling is "clearly untenable, unfairly depriving a litigant of a substantial right ……..." North v North 102 Md App. 1, 648 A 2d 1025 (1994).
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