Maryland's New Family Law Changes Effective October 2023: What You Need to Know

The family law landscape in Maryland has undergone groundbreaking changes that come into effect on October 1, 2023. Read on to get the full scoop.

Maryland is a two-party consent state for purposes of recording another person's oral communications. That is, you are not permitted to record someone’s oral communications in Maryland without the other party’s consent. However, there are important exceptions to the two-party consent rule. The first and most clear exception is that you can video record without violating Maryland’s consent laws. As the Court of Special Appeals recently stated, “a video recording without audio recording or without oral communication is not prohibited under the wiretap statute.” Holmes v. State, 236 Md. App. 636, 654, 182 A. 3rd 341 (2018). (There is a separate statute prohibiting surreptitiously recording in someone’s house. Md. Crim. Law Section 3-903 - Camera surveillance.) If you want to be on the safe side and you want to document an event turn on the video but not audio. The question of whether you can record audio is less clear. At a recent divorce trial, I successfully argued that the cell phone videos my client took of his wife yelling and throwing knives at him were admissible. The other side’s divorce attorney argued that because his client did not consent to the recording my client violated the Maryland Wiretap Act, Cts. & Jud. Proc. § 10-401 et seq. (2006), that the recordings were inadmissible and that my client should be criminally prosecuted. He said two other judges had accepted his argument and excluded cell phone recordings from being used as evidence—but the other lawyers did not know about the case I found that contradicted that position. The secret to success in my client’s case was Martin v. State, 218 Md.App. 1, 96 A. 3d.765 (2014), cert. denied 440 Md. 463(2014), cert denied 135 S. Ct. 2068 (2015) in which the Court of Special Appeals held that cell phone recordings are not covered under the state wiretap statute. Recording someone speaking is generally an “interception” for wiretap act purposes. However, the Maryland Wiretap statute only prohibits interceptions if they occur through the use of any “electronic, mechanical, or another device.” CJP §§ 10-401(10) and 10-402(a). According to that case, the Act specifically excludes “telephone” from the definition of an “electronic, mechanical or another device.” Therefore, by using his cell phone to record the incidents, my client was within his rights, the evidence was admitted and he got the divorce he wanted, on the terms he wanted without having to pay any alimony, divide his pension, or pay her attorney’s fees. However, the Holmes case has muddied the water. In Holmes, the mother secretly recorded a conversation she had with her daughter regarding alleged abuse of the daughter by the mother’s boyfriend. The court emphasized the secret nature of the recording several times in its opinion and never mentioned the Martin case. The Court excluded the cell phone recording on the basis that the cell phone recording violated Maryland’s wiretap statute. Practice pointer: It is difficult to reconcile the two cases, from the same court (Court of Special Appeals) but with different judges. Clearly under both opinions, one can videotape using the cell phone. If audio is necessary, the cell phone should be visible so that the other side cannot claim it is a secret recording. (The Court acknowledged that under the full logic of its opinion parents could not record audio of their child’s birthday parties, which may be why they emphasized several times the secret nature of the Holmes’ recording.) Of course, if you can get the other side to consent—make sure it’s on tape, even in “the heat of the moment” --then the audio portion of the cell phone recording is also clearly acceptable. This blog is the opinion of the author and does not constitute legal advice. It should not be relied upon for any purpose; it is presented solely as a discussion point with an attorney of your choosing. It does not in any way create an attorney-client relationship between the author and the reader.

The American Psychological Association has published an article that neatly sums up the benefits to the entire family if the parents can work out a separation agreement without going to trial. https://www.apa.org/helpcenter/healthy-divorce.aspx. It reminds us that divorce mediation can be “a good alternative to court proceedings” and that “research shows that mediation can be beneficial for emotional satisfaction, spousal relationships, and children’s needs.” Those statements also apply to Collaborative Law. Studies time and again show that how the parents get along post-separation and post-divorce are the best predictors of how the children will fare. If the parents can effectively co-parent then the children will usually adjust to the split. If the parents continue to fight then the children will remain (or become) torn which can have lasting, negative impacts on them. The article also mentions the benefits of using psychologists during the divorce process. Social workers are also beneficial. It is difficult but not impossible to find mental health professionals who will accept health insurance. I keep a list of psychologists and social workers that have experience in helping people with marriage and family issues. If you would like some referrals please let me know.

The following article , published in the investment newsletter “The Motley Fool” reminds us that protecting retirement savings during a divorce is important, and third-party mediation or collaborative law may be the best way to protect what was accumulated during your marriage. Remember, you’re better off owning your share of the retirement accounts than having to pay those funds to your lawyer for divorce litigation.

Maryland Court of Appeals Reverses Itself and Recognizes De Facto Parents

I am among the first trained attorneys in Collaborative Law and still believe in its usefulness. However, its use peaked a few years ago and now it is used infrequently, and virtually only in divorce cases. Why? First and foremost, Collaborative Law got a bad reputation for being very expensive. In the early days most cases had two lawyers, two therapists, a financial neutral and others. Cases would cost tens of thousands of dollars, not settle and the parties would have to hire new lawyers to litigate the case (the Collaborative Law attorneys could not further represent their collaborative law clients if the case proceeded to court because of the Collaborative Law recusal provisions.) Furthermore, newly minted Collaborative Law attorneys saw every divorce case as a collaborative law case, when in most instances the issues could be settled more quickly and less expensively through mediation. So parties lost faith in recommendations for recommendations to resolve a case through collaborative law. In Maryland, Collaborative Law attorneys have done a lot of work to reform the collaborative law process, to make it quicker, cheaper and simpler. Collaborative Law 2.0. Collaborative law has gone from being over-utilized to under-utilized. While it should still be the exception rather than the rule, It deserves a second look. With that in mind, I commend you to the Maryland Collaborative Practice Council’s information. Its mission is to “support Collaborative Practice Groups, advocate statewide on legislative, executive, and judicial initiatives, and to advance the use of the Collaborative Process as a method of dispute resolution.” They offer the following information on collaborative practice:

Lorriane C. Ladish Posted in the Huffington Post the Following 10 Tips for Successful Co-Parenting. Although this list is geared towards mothers, I think it is useful for either mothers or fathers:

A recent article in the Washington Post highlights how courts are trending to awarding fathers more time with their young children, even when the child is an infant. Titled “What’s more important than breast-feeding a baby? Giving a father time with his child” https://wapo.st/2gm0Xkq?tid=ss_mail&utm_term=.64728a23e3c5 the article discusses how a local court rejected a mother’s claim that the father should not have overnight visits because she could not pump enough milk for the father to feed the infant during that time. Despite the mom’s insistence that the child should only be fed breast milk, the Court ruled—by two different women judges-- that the child should also be fed formula so that the infant could spend overnights with the father. Bottom line: at least after the child was six month’s old, the child’s time with the father was more important than the mother’s desire that the child only be fed breast milk.  When I started in family law, the Montgomery County Circuit Court handed out a packet stating that the customary access schedule for fathers was every-other-weekend and maybe a mid-week dinner or overnight—after the child was at least three years old. Overnight visits for newborns to at least three years was unheard of. Even the American Bar Association published a book of access schedules, that did not recommend overnights for infants. In a trial I had about ten years ago, the judge found that both parents were fit parents to have custody, and so he explicitly stated that he was ordering the “usual” custody schedule of every other weekend and weekday overnight to the father. Today, it is unlikely that the judge would rule that way. It is common for courts to award father’s equal custody of the children, or at least close to equal custody of the children. Why? To a large extent, judges are more accepting that fathers are equally qualified to raise children and that the children deserve to have both children equally in their lives. Of course, and I can’t say it enough, studies show that the best predictor for how children will fare after a divorce is how well the parents co-parent. Fighting over a night here or there is not good for the children or the parents. If the children are caught in the middle for years of post-divorce strife then they are less likely to do well. Related to that is that parents who successfully resolve custody issues through mediation or collaborative law have a much greater likelihood of the agreement being followed and the strife lessened.

I recently had lunch with a friend who commented that he had several friends who wouldn’t talk to each other because of the election results. Some even changed their Thanksgiving plans because they didn’t want to have to share a meal around partisan recriminations. He then told me that he had a friend who was going to work for the Vice-President elect, as if to inquire whether it was OK to keep that person as a friend. I related to my colleague the story of how I met my friend Ed. One day at college one of my roommates came in and said, “Bob, I’d like you to meet Ed. He’s a really nice guy as long as you don’t speak to him about abortion.” Ed and I spent the next five hours, until 3 a.m. debating the issue. We’ve been best friends ever since.  The times between my college experience and this recent lunch are quite different, and not for the better. People have become less willing to listen to other points of view. I grew up in a family where we were taught to seek out other points of view, not to flee from them. My grandfather was as staunch a Republican as you’d ever find. He never voted for Franklin Roosevelt because he thought he as a socialist. Yet each morning he would go to the local newspaper vendor and buy all of the newspapers, including the communist “Daily Worker” paper, so that he could become familiar with opposing points of view. My grandfather’s example is more relevant now than ever before. We should embrace people of different opinions, not shun them. We should be eager to listen to their point of view-but they should be equally willing to listen to ours. When I mediate I give each party “Ground Rules for Mediation” so that we can have productive, respectful, positive meetings. As we gather for Thanksgiving, Christmas and other holiday meals, think about these four Rules, which may make the day more civil and enlightening.