Posted on August 18, 2009 in Visitation

Many non-custodial parents (parents without primary physical custody) are left wondering what to do after being denied scheduled visitation with their child. As of July 1, 2009, those parents may not only have two, but three avenues to pursue.

The first and most frequent method of enforcing a Maryland visitation order that has been violated is through the court’s contempt powers. In accordance with Section 9-105 of the Family Law Article, Annotated Code of Maryland, if “the court determines that a party to a custody or visitation order has unjustifiably denied or interfered with visitation granted by a custody or visitation order, the court may, in addition to any other remedy available to the court and in a manner consistent with the best interests of the child, take any or all of the following actions: (1) order that the [missed] visitation be rescheduled; (2) modify the custody or visitation order to require additional terms or conditions designed to ensure future compliance with the order; and (3) assess costs or counsel fees against the party who has unjustifiably or interfered with visitation rights.” In practice, the non-custodial parent is often frustrated with the initial contempt process because the custodial parent more often than not receives a “slap on the wrist” from the Court. It is, however, a necessary step in order to build a case and to send a clear message to the custodial parent that the denial of visitation will not be tolerated. Ultimately, if the denial of child access continues, and subsequent Petitions for Contempt are filed and the allegations proven, the Courts, generally, take a more no-nonsense approach with the custodial parents and put more boundaries and restrictions upon the custodial parent to ensure compliance with the Court Order.

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 Posted on August 16, 2009 in Protective Orders

In the wake of the recent legislation signed by Governor O’Malley mandating Judges to order the surrender firearms as part of a final protective order, and authorizing Judges to order the surrender of firearms as part of a temporary protective order, it is helpful to differentiate between the two, and in addition explain the interim protective order.

An Interim Protective Order allows for domestic violence protective orders to be available 24 hours a day, 7 days a week. District Court Commissioners are available at any hour of the day and can issue an interim protective order if there is “reasonable grounds to believe” that the alleged abuser (the Respondent) has abused the person eligible for relief. This protective order lasts for up to 48 hours after the courts re-open, after which the individual seeking protection (the Petitioner) must seek a temporary protective order to extend the interim order.

A Temporary Protective Order is only issued after a hearing before a Judge. If the Judge finds that there is reasonable grounds to believe that the person eligible for relief has been abused then he or she may enter a temporary protective order, which will last for up to 7 days. However, the Judge may extend the temporary order for up to 30 days if good cause exists, prior to the final hearing (effective October 1, 2009 the temporary order may be extended for up to 6 months to effectuate service or for good cause). The Judge is authorized to order the alleged abuser to surrender all firearms when issuing a temporary protective order. Additionally, the Judge can order the alleged abuser to refrain from abuse or threats of abuse of the person eligible for relief, order the alleged abuse to refrain from contacting, attempting to contact, or harassing the person eligible for relief; order the alleged abuser to refrain from entering the residence of the person eligible for relief; order the alleged abuser to vacate the home immediately and award temporary use and possession of the home to the person eligible for relief; order the alleged abuser to remain away from the place of employment, school, or temporary residence of the person eligible for relief or home of other family members; order the alleged abuser to remain away from a child care provider of a person eligible for relief while a child of the person is in the care of the child care provider; and award temporary custody of a minor child of the person eligible for relief. The temporary protective order additionally states the date of the final protective order hearing, which is generally set 7 days after the temporary protective order has been entered.

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 Posted on August 15, 2009 in Divorce

In light of the Jon and Kate’s recent news and Kate Gosselin’s filing for a no-fault divorce, I have received many questions asking what is a “no-fault” divorce? Although the Gosselin’s divorce proceedings will be held in Pennsylvania, the law in Pennsylvania is similar to Maryland, in that a party filing for divorce may elect to proceed on fault (contested) or no-fault (uncontested) based grounds.

In Maryland, a no-fault (uncontested) divorce is based on the understanding that the marriage is irretrievably broken. Meaning, that the husband and wife mutually and voluntarily separated from one another, there is no hope or expectation of a reconciliation, and they are and have been living separate and apart without cohabitation for a period of at least one year. If the prior conditions are met, either spouse may file for a divorce once they have been separated for 365 consecutive days. If only one spouse believes that the marriage is irretrievably broken, that spouse may file for a no-fault (uncontested) divorce after the parties live separate and apart for 24 months.

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 Posted on August 14, 2009 in Common Law Marriage

As a practicing family law attorney in Maryland, I am often asked if Jack and Jill who have been living together for ten years now in the State of Maryland, but have never had a lawful marriage ceremony, are legally married under the doctrine of common law marriage? The answer is no, Maryland does not recognize common law marriages. Therefore, if Jack wanted to end his relationship with Jill, no legal action would be required on his part. Also, if Jill wanted to inherit from Jack, or participate in his health benefits, this may pose a problem as they are not married under the laws of the State of Maryland.

A common law marriage, by definition, is a marriage formed between two individuals who have lived together for a specified amount of time, rather than participating in a lawful ceremony. However, the parties must be of the legal age to be married, must mutually intend to take on the status of husband and wife, and must not only live together, but represent to the community that they are husband and wife.

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 Posted on August 11, 2009 in Automobile Accident

Tragic and somewhat confusing news coming out of North Carolina today. The Baltimore Sun is reporting two separate vehicles, both driven by Maryland residents, were involved in a head-on collision on U.S. 17 in North Carolina.

Apparently Loriann Bobotek, 47, of the 4000 block of Hopi Court in Ellicott City was driving her Dodge Caravan south on U.S. 17 when she attempted to pass a slower moving vehicle. When she moved into the other lane of travel, her van slammed into a black Mitsubishi Montero operated by Christina Sonn, 35 of the 3000 block of Edwards Avenue in Parkville, Maryland. Both drivers shortly after the collision.

Seven total passengers in Bobotek’s van and the Montero were taken to an area hospital in Greenville, N.C. and five have since been released.

The facts of this accident bring to light a legal dilemma victims and family’s of victims face when confronted with an out-of-state accident. Do you retain a lawyer where the accident occurred or where you live? The question is complex, but the simple answer is where you live. Using this case as an example, an experienced Maryland personal injury lawyer should be able to do everything a North Carolina injury attorney can do, and more.

For more information on the question of where to hire a lawyer in multi-venue cases, please contact us for a complimentary consultation.

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 Posted on August 11, 2009 in Recent Court Decisions

On June 3, 2009, in the case of Barrett v. Ayres, the Maryland Court of Special Appeals found that Sharon Barrett did not need to show a material change in circumstances in order to modify the current set visitation schedule between her daughter and her daughter’s paternal grandparents, Bryan and Helen Ayres. Sharon Barrett had agreed to a visitation schedule between her daughter and the Ayres after her husband was seriously injured in a car accident in 2004. However, the relationship had become strained and Sharon believed that it was no longer in her daughter’s best interest to visit with her grandparents. The Court stated a parent’s decision that their child’s visitation with a third party should be modified is a material change in and of itself. The burden then shifts to the third party to establish that the parent is unfit or other exceptional circumstances exist. In this case the grandparents now have the burden to prove the parents are unfit or exceptional circumstances exist.

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 Posted on August 11, 2009 in Federal Criminal Defense

I recently wrote a blog about the recent and dramatic change in the federal DOJ policy regarding the disparity between federal sentencing guidelines for crack and powder cocaine. https://www.marylandcriminalattorneyblog.com/2009/06/the_disparity_between_federal.html On May 1, 2009, the United States Department of Justice (DOJ) released a Memorandum to all U.S. Attorney’s Offices instructing all federal prosecutors to inform sentencing courts “that the Administration believes Congress and the Commission should eliminate the crack/powder disparity . . .” and that prosecutors should not object to variances in sentencing to achieve that result.

The new DOJ memorandum gives federal criminal defense lawyers a powerful new tool to fight the draconian sentences that clients have faced for federal crack cocaine offenses.

Most recently, I convinced a federal judge in Maryland that the new DOJ Memo not only reduced the sentencing “regular” 2D1.1 guidelines for crack cocaine offenses, but it also reduced the Career Offender Guidelines under section 4B1.1. I argued that the DOJ Memo applied across the board to all disparity between crack and powder cocaine. Because my client was charged with conspiracy to distribute more than 50 grams of crack, the maximum possible punishment for the offense was life under 18 U.S.C. §841(b)(1)(A). The maximum possible penalty, however, for a similar offense involving powder cocaine was only 20 years under §841(b)(1)(C). This difference caused the career offender guidelines to drop from level 37, to level 32 because the career offender guidelines are keyed directly to maximum possible sentence for the charged offense.

In my recent case, the client was facing – after acceptance of responsibility – a sentencing guideline range of 262-327 months. Because the Judge agreed with my argument regarding the applicability of the DOJ Memo, he reduced the guidelines by five levels, to a range of 151-188 months – an immediate reduction of almost 12 years incarceration!

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 Posted on August 09, 2009 in Automobile Accident

On Tuesday August 4, 2009, a wonderful man named John “Jack” Yates (age 67) was killed, while safely operating his bicycle, by a hit and run driver at the corner of Maryland Avenue and Lafayette Avenue in Baltimore City, Maryland. The hit and run driver was operating a nondescript white box truck.

Jack Yates was a loving grandfather, father and husband. He spent his entire professional life helping troubled youth in Baltimore City. He deserves better. If anyone has information as to the identity of the truck and driver, please contact the Baltimore City Police or send a confidential email to ssilverman@silvermanthompson.com. Thanks, Steve Silverman

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 Posted on August 05, 2009 in Controlled Dangerous Substances (CDS)

Baltimore Maryland Criminal Lawyer. I blogged last week about cases in which narcotics detectives essentially manufacture felony drug cases by asking defendants caught with prescription drugs if they intended to give or share the pills with someone else and if they answered in the affirmative, charging them with possession with the intent to distribute a controlled dangerous substance (CDS). In that blog I posited the question, “are the police really looking to make progress in the war on drugs or just stat to further their own careers?” I was retained in case recently that caused me again to think the detective’s goal may be the latter.

In this case the police arrested an individual for possessing illegal prescription drugs. Instead of just charging the individual and moving on to the next case they chose to make him an informant and offer him the opportunity to “work off his charge”. I certainly don’t have a problem with what the police did up to this point. Informants are an essential investigative tool that have been used by law enforcement since the beginning of time. The problem I have is the way in which they used this informant which was to get him to set someone up who was otherwise not predisposed to sell drugs.

This individual called my client whom he has known for many years. He knows that my client has very serious medical problems to include having suffered a serious spinal injury that rendered him paralyzed for a few months and has led to multiple surgeries and fusions of vertebrae. He cannot walk without the use of a walker or crutches and has been deemed totally disabled by Social Security. The informant knows that my client is in chronic pain and is prescribed numerous pain killers to help him combat the pain from this injury as well as his other ailments.

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 Posted on August 04, 2009 in Automobile Accident

The Baltimore Sun is reporting that a cyclist was struck by a motor vehicle and killed in downtown Baltimore today. The accident occurred on the corner of Maryland and Lafayette avenues. It is unclear whether the cyclist was wearing a helmet.

Our firms personal injury department has successfully handled several accidents involving bicycles and automobiles. Interestingly enough, the rules of the road apply the same to cyclist as they do to automobiles. For more information, please contact us for a consultation.

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