Does the circuit court have jurisdiction to resolve a custody dispute if the parents are living together, regardless of whether the parents are married?  The answer is yes.

In Ricketts v. Ricketts393 Md. 479, 501 (2006), the Court of Appeals held that a court had such jurisdiction in a divorce action even if the parents were sharing the same household and even if the court declined to grant a divorce.  In a recent Court of Special Appeals case, Holbrook v. Newell, the holding of Ricketts was extended to cases where the parents are unmarried.

While the court has the authority to make a custody determination even if the parties are still living together, it may not be in a party’s or a child’s best interest to make such a request.   No two custody cases are the same and each case is determined by a subjective analysis of factors related to a child’s best interests.  If you are contemplating a custody action, Hess Family law can provide advice based on your particular situation and goals. 

Published in Custody

Up until now, Maryland law did not permit the non-biological, and non-adopotive "parent" (de facto parent) of a child to obtain custody or have visitation with the child when the family was broken apart by separation or divorce unless the de facto parent could prove that the biological or adoptive parent of the child was unfit.  

In a landmark decision, the highest court in Maryland, the Maryland Court of Appeals has ruled that de facto parents now have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis.    

This decision overrules the Court’s previous decision in Janice M. v. Margaret K., decided approximately 8 years ago.  The high court determined that its holding in Janice M. contravened the “universally accepted concept” that children “need good relationships with parental figures and they need them to be stable.” 

While unanimous in their recognition of de facto parenthood, the Judges were split 4-3 on a specific four-factor test for courts to determine if an individual qualifies as a de facto parent.  The factors require

  1. that the biological or adoptive parent “consented to, and fostered” the formation and establishment of the “parent-like relationship with the child;”
  2. that the de facto parent and child lived together in the same household;
  3. that the de facto parent “assumed obligations of parenthood,” such as the child’s care, education and development without expecting payment; and
  4. that the de facto parent was in the parental role for enough time to establish “with the child a bonded, dependent relationship parental in nature,” the high court said.

Source: The Daily Record, Steve Lash, Daily Record Legal Affairs Writer July 8, 2016

Published in Custody

If you have a child applying to college or currently in college then you have probably assisted them in applying for financial aid.  There are two major financial aid forms: the Free Application for Federal Student Aid (FAFSA) and the CSS Profile.   The FAFSA requires financial information only from the custodial parent, which for purposes of the FAFSA application is defined as the parent that the child lives with more than 50% of the time. This applies to students whose parents are divorced or have been separated for at least six months prior to filing the FAFSA application.   However, if the custodial parent remarries, the stepparent’s financial information must be included for financial aid purposes.  Additionally, any child support that a parent receives is considered income for both the FAFSA and CSS Profile.

Divorced or separated parents should note that most but not all colleges that require the CSS Profile expect the noncustodial parent to complete a noncustodial Profile form. Both the custodial and noncustodial parents’ income is considered.  However, the total family contribution from both parents is usually slightly less than if the parents were still married, because colleges take into consideration the added cost of maintaining two households.  If both parents income is considered by the college then a stepparent’s income is not usually included; however if the college only requires the custodial parent to report income and that parent is remarried, the stepparent’s income will also be considered. 

If a 529 college savings plan is owned by the non-custodial parent, you may want to consider changing the account owner to be the custodial parent. A 529 plan that is owned by the custodial parent is reported as a parent asset on the FAFSA (worst case impact, a reduction in aid equal to 5.64 percent of the account’s value) but distributions are ignored. If the 529 plan is owned by the non-custodial parent, it is ignored as an asset, but distributions count as untaxed income to the beneficiary on the FAFSA (reducing aid eligibility by as much as 50 percent of the distribution). Having a 529 plan owned by the custodial parent will reduce the impact on eligibility for need-based aid.

Generally speaking, a child of divorced parents will qualify for more financial aid if the custodial parent is the parent who earns the lesser income.  This may be a factor that parents want to consider when determing custody of their older almost college bound children.  However, if parents live in different school districts and the children attend public school it may be suspect for the custodial parent to live in one school district and the minor child attends school in the non-custodial parent’s school district.  Also, know that you may be asked to provide a court order demonstrating custody and/or a custody agreement so you need to make sure you take care of obtaining agreements and court orders before applying for financial aid. Attorney Geraldine Welikson Hess and Hess Family Law can assist clients with any initial or modification of custody needs.

While January has traditionally been the month when FAFSA applications can begin to be filed, starting with the 2017-2018 school year the FAFSA application can be completed as early as October 1st of the previous year.  Click here for more information regarding changes to the FAFSA during 2016.  If you have questions about the FAFSA or CSS Profile you should contact a financial aid expert or FAFSA directly.  

Sources: Paul Bishop February 12, 2016 Want More Financial Aid?  Get a Divorce 

Emma Johnson September 9, 2015 College Financial Aid Advice for Divorced Families 

Published in Financial Issues
Tuesday, 02 February 2016 03:44

Text Messages Used as Evidence

Texting is a great way to stay in touch with your spouse, ex-spouse and/or your kids, especially if you are separated or divorced.  In some cases, parties that are separated or divorced have difficulty communicating.   Anger, stress, and frustration can cause parties to dread phone or face-to-face communication.   By sending short text messages, parties can communicate efficiently without having to engage in lengthy conversations.  However, you should be mindful that unlike phone conversations, there is a record of your text message conversations and just like emails; text messages can end up in the courtroom during your divorce or custody dispute.  

How common is this?   According to a survey by the American Association of Matrimonial Lawyers® (AAML), 94% of the respondents cited an overall rise in the use of text messages as evidence during a trial.   In fact, text messages were the most common forms of evidence taken from smart phones holding the top spot at 62%, e-mails follow at 23%, phone numbers and call histories at 13%, with GPS and Internet search histories each sharing 1%.  Why the increase in text messages as evidence in divorce and/or custody cases?   Unlike phone conversations, text messages are a written record of a dialogue between spouses, ex-spouses or children.   They can be used to highlight problems such as parenting issues, irresponsible behavior, and even contradict sworn testimony.  

If text messages may end up in Court, what are your options?   As I discussed in Technology Makes Communication Easier, if you cannot verbally communicate, it is better to use email and/or text messaging then to not communicate at all.  But, never send an email or text message in the heat of an argument.  And, never send an email or text message that you would not want a Judge to read.  While technology has its drawbacks, if used properly, it can make managing two households a lot easier.

Ms. Hess is a Fellow of the Maryland Chapter of the American Association of Matrimonial Lawyers® (AAML).  Click for more information about the National AAML or the Maryland Chapter of the AAML.  

Published in Technology

Although some believe that shared custody arrangements expose children to additional stress due to constantly moving from house to house, a Swedish study indicates that the potential stress from living in two homes is outweighed by the positive effects of close contact with both parents.  Despite the hassles of living in two homes, most children in the survey stated that a close relationship with both their parents was most important.

The study, Fifty moves a year: is there an association between joint physical custody and psychosomatic problems in children? published in the Journal of Epidemiology and Community Health suggests that kids fare better when they spend equal living time with both parents.  The study compared children in joint physical custody arrangements, with those living only or mostly with one parent and those living in nuclear families. Based on a national survey of nearly 150,000 Swedish children aged 12 and 15 years, the study found that children who live equally with both parents after a parental separation suffered from less psychosomatic problems such as sleep problems, difficulty concentrating, loss of appetite, headaches, stomachaches and feeling tense, sad or dizzy than those living mostly or only with one parent.  However, children in joint custody arrangements still reported more psychosomatic problems than those in non-separated or divorced nuclear families.

For more information on Child Custody, please click here.


Published in Custody
Saturday, 02 February 2013 00:26

Sesame Workshop

Study Finds Children of Divorce Much Better Off When Parent’s Find Ways to Co-Parent and Maintain Civility.

            Are you wondering how you can help your children during and after divorce?    Robert Hughes, Jr.’s blog post discusses this very topic.  A study has found that children of divorce fare better when their parents learn to co-parent and maintain civility when dealing with each other.   Continued conflict creates damaging stress and interferes with a child’s ability to learn how to manage their own emotions. 

            At Hess Family Law, we recommend that you have an agreement or court order that provides specifics in an effort to eliminate future conflict so that you and your spouse can develop positive interactions in the future rather than arguing over items that could have been resolved.  For example, your agreement or order should include visitation dates, times and other important details.  We understand that sometimes clients want flexibility and life often requires it.  If you and your spouse or former spouse are co-parenting and maintaining civility, you can always choose to agree for a particular visitation to change the pick-up date, time, or location. The benefit of having specifics in your agreement is that it provides a default plan if you cannot agree to do something different, and therefore lessens the need to argue.  

There are many resources available to parents who are divorcing, such as therapists and mediators, who can help with communication and problem solving.   Parenting plans can be drafted to address specific concerns and allow both parents to be involved in their children’s lives.  A new resource developed by Sesame Workshop called “Little Children Big Challenges:Divorce,” provides a series of activities both online and offline for parents and children.  The website is designed to help children ages 2-8 understand their parent’s divorce and provides parents advice on how to talk to their children about divorce in an age appropriate manner.      


Published in Custody

Ground Rules for the Separated or Divorced and Dating: Introducing a New Partner to Your Children


Karla has been divorced for two years. She has been dating Ethan for eight months and wonders if she should introduce him to her three children. Are there any “rules” for dating with children?

Marina Sbrochi’s article Dating with Kids: 5 Ground Rules For Introducing Your New Partner To Your Kids recommends that Karla wait at least six months before even thinking about introducing Ethan to her children. Why wait? Ms. Sbrochi suggests that it takes at least six months before you really begin to know someone. Karla’s children do not need to become attached to a man who may not remain in her life. 

Karla believes her relationship with Ethan is serious. What ground rules should she follow when she introduces him to her three children?

1. No Expectations. What does this mean? Do not force the relationship. Have the meeting be casual and let everyone get to know each other.

2. Group Setting. Karla should introduce Ethan as a friend. She can plan a small get together with other people her children know so the meeting does not feel forced. Karla should plan at least five group meetings so the children can get to know Ethan in a relaxed atmosphere without any pressure. Karla and Ethan should refrain from showing affection. For now, he is just a friend.

3. Go Slowly. While Karla and Ethan have known each other for 8 months, the children have just met him. It is important for Karla to take her time and follow the cues of her children. Karla should talk to them if they seem unhappy or angry.

4. One Mom, One Dad.  Karla’s children may worry that Ethan will replace their father. It is important that Karla reassure the children that they will only have one mom and one dad.

5. Rules for the New Family.  Merging families can be complicated. Karla and Ethan need to discuss expectations, discipline, money, education, and any other issues that may affect them.  If and when can Karla update her Facebook status to “in a relationship” and post pictures of herself and Ethan together as a couple? At Hess Family Law, we recommend that Karla use caution when posting information about her personal life on any social media sites. Even though Karla has been divorced for two years, custody issues can always be modified. While Karla and her ex-husband may have a good relationship, situations can change. If Karla believes that updating her status will not be a problem, she should certainly wait until her children have been introduced to Ethan and understand that he is more than just a friend.


Published in Custody

Practical Advice for Successful Co-Parenting

     Dr. Edward Farber, a licensed Clinical Psychologist in Virginia and Maryland, and a partner at the Reston Psychological Center, recently published a book titled “Raising the Kid you Love with the Ex you Hate.” Based on his years of experience, Dr. Farber’s book offers practical advice for successful co-parenting. This book will tell you the why's and the how's of:

  • Both parents together telling the children about the separation and/or divorce.

  • Determining the right time for you and your spouse to inform the children about your separation and divorce. Over the weekend and in the early afternoon is a good time so that there can be several conversations throughout the day. A conversation at bedtime is not a good idea unless you want your child to be up all night.

  • Knowing what to say, and not to say, to your child about separation and divorce.

  • The importance of being honest with your child.

  • The importance of providing concrete information about how the separation will affect the child's daily and weekly routine, but not providing too many specifics that may overwhelm the child.

  • The how and when of introducing your child to your new residence, which should be done slowly and in stages.

Coping with child support and other money issues.

Handling the holidays and special family occasions

  • Choosing and adjusting to new schools

  • The when and how of introducing your child to a potential new partner.

  • Co-parenting when an ex has a personality disorder, addiction problem, or is a bully.

  • Raising a healthy child while co-parenting.

     I highly recommend this book to clients who have children and are contemplating or in the process of a separation or divorce. And, despite the title, I recommend this book for all clients, not just those in a high conflict divorce and co-parenting situation.

     To read more reviews about this book click here and here.



Published in Custody

     A new school year can be stressful for any family, but it can be especially stressful for a family when parents are newly separated or divorced. Questions may arise such as: Whom does the school call first if there is a problem? Who pays for school supplies? Do you need school supplies in both households? What activities will your child participate in? Some of the answers may be addressed by your Court Order or Agreement, but if you do not have one, or even if you do, there may not be clear answers.

     Many experts agree that divorced or separated parents should be on the same page when it comes to their child’s school. The most important things parents should do are communicate, coordinate, and cooperate. For some this may be easy, but for others this can prove to be difficult, especially if your divorce was not amicable.


Published in Custody

    In July 2013, Governor O’Malley authorized a commission to review the current Maryland child custody system and to make recommendations for reforms to provide better outcomes for children and their families. The Commission is comprised of attorneys and legal leaders in Maryland such as Judges, Delegates, Senators, and Psychologists.

    Currently Maryland does not have a statute that lays out the factors to be considered when making child custody decisions. Instead, Judges must rely on case law. The Commission will analyze how custody decisions are being made and study how to make them more uniform and fair.

Published in Custody
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Mailing Address

Geraldine Welikson Hess, Esq
Hess Family Law
451 Hungerford Dr,
Suite 119-307
Rockville, Maryland 20850

Geraldine Welikson Hess, Esq
Hess Family Law
344 Maple Ave West,
Suite 355
Vienna, Virginia 22180

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Rockville, Maryland 20850
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