Custody Litigation

• Jurisdiction: Maryland

VII. CUSTODY LITIGATION

A. Magistrate's Hearings

1. Matters to be referred

Maryland Rule 9-208(a) requires (unless the court directs otherwise in a specific case) that matters involving custody of or visitation with children, including pendente lite relief or modification of an existing order or judgment, be referred to a magistrate.

2. Exceptions/Timelines

After a hearing, and within the time limits imposed by Md. Rule 9-208(e), the magistrate must prepare and file written recommendations with the court. (In some counties, this occurs immediately upon conclusion of the hearing). Within ten days after the magistrate's recommendation is placed on the record or served upon the parties, a party may file exceptions with the clerk.²⁰⁵

3. Exceptions/Entry of order

If exceptions are filed, no order based upon the magistrate's recommendations may be entered unless the magistrate has certified that "extraordinary circumstances" justify the action.²⁰⁶ Even then, the order may not be entered until a judge has had the opportunity to review the file and the parties have been afforded an opportunity for oral argument. To minimize the filing of meritless "tactical" exceptions by the offended parent, a hearing on the exceptions must be heard within 60 days.²⁰⁷

4. Exceptions/Particularity

In taking exceptions, Md. Rule 9-208(f) requires:

Exceptions shall be in writing and shall set forth the asserted error with particularity. Any matter not specifically set forth in the exceptions is waived unless the court finds that justice requires otherwise.

If the court is reasonably able to rule on the exception, and the opposing party is reasonably able to frame a response, then the exception is sufficiently "particular" to satisfy the requirements of the Rule.²⁰⁸

5. Exceptions/Taking additional testimony

Maryland Rule 9-208(i) states that the exceptions shall be decided on the evidence presented to the magistrate, unless:

(1)(A) the excepting party sets forth with particularity the additional evidence to be offered and the reasons why the evidence was not offered before the Magistrate, and

(B) the court determines that the additional evidence should be considered.

While the receipt of additional evidence is clearly authorized by Md. Rule 9-208(i), there is simply no per se right to present additional evidence at an exceptions hearing.²⁰⁹

Chancellor has absolute discretion to order a de novo hearing, in whole or in part, after magistrate's hearing and recommendations

. . . in any case in which the chancellor is not satisfied that a proper decision can be rendered based on the proceedings before the Magistrate.²¹⁰

6. Exceptions/Exercise of independent judgment by chancellor

In Wenger v. Wenger, the Court sought to define the relationship between the duties and powers of a chancellor and a magistrate.²¹¹ The Court held that although the chancellor should defer to the fact-finding of the magistrate, where it is clearly erroneous, he always reserves the ultimate disposition of the case to himself. The recommendations of the magistrate which accompany the findings of facts serve only as a guide. Chancellors, as judicial officers, may never delegate away a part of the decision-making function to a magistrate, a non-judicial officer.²¹² "Litigants in a custody proceeding, as in all judicial proceedings, are entitled to have their cause determined ultimately by a duly qualified judge in a court of competent jurisdiction."²¹³ The chancellor's affirmation of the magistrate's ruling because it is "well supported by the evidence" is erroneous where there is no indication the chancellor has exercised his independent judgment.²¹⁴ A magistrate's fact-finding is merely tentative and does not become binding until approved by the court.²¹⁵

On the other hand, the magistrate's finding of facts is to be given deference under the clearly erroneous standard.²¹⁶ "Clearly erroneous" standard applies only to magistrate's fact-finding, not to conclusion reached on those facts (i.e. chancellor must exercise independent judgment).²¹⁷

In O'Brien v. O'Brien, the Supreme Court of Maryland stated,

Findings of fact [by the Magistrate] are to be treated as prima facie correct and are not to be disturbed by the court unless found to be clearly erroneous, i.e., unsupported by substantial evidence in the record before the master, but the master's ultimate conclusions are merely recommendatory and must be reviewed by the court "with an independent exercise of judgment."²¹⁸

B. Custody Trial

1. Chambers interview with children

a. Not mandatory

A judge is not required to interview a child in a custody case.²¹⁹ This principle was affirmed in Nutwell v. Prince George's County Department of Social Services,²²⁰ an adoption case, where the Court said:

We were aware in Marshall v. Stefanides, supra, that the interview requirements may present some problems

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