On July 14, 2021, the Rules Review Subcommittee of the Maryland Judiciary’s Committee on Equal Justice held a listening session on Custody Rules. The session was moderated by Senior Judge Barbara Kerr Howe, former Baltimore County Circuit Court Administrative Judge, and Magistrate Tracey McKirgan from the Calvert County Circuit Court.
The committee was formed in June 2020, in an effort to build on the judiciary’s knowledge and proficiencies and to strengthen its commitment to equal justice under the law. The Committee is to recommend strategies to dismantle any discriminatory behaviors in all aspects of the Judiciary’s functions. It will identify necessary improvements, resources, and support services, and develop educational opportunities for ongoing Judiciary-wide engagement in the pursuit of equal justice for all.
The Rules Review Subcommittee is one of six that was created under the broader Equal Justice Committee. Its goal, in particular, is to identify Maryland rules that, either in text or operation, affect people in communities of color or members of disadvantaged communities differently or disproportionately, or that raise equal justice concerns in any way.
The listening sessions are designed for members of the committee and the subcommittee to obtain input regarding how the rules have operated in ways that raise concerns regarding disparate treatment. This particular session was devoted to custody rules, specifically those rules that may raise concerns of discriminatory behavior or result in implicit bias grounded in race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.
The first speaker noted that Maryland Rule 9-205 provides an exemption from mediation where there is a genuine issue of child abuse.She stated that while the rule is important, it does not go far enough to prevent victims from being ordered into mediation. She then addressed a few of the reasons why. She explained that victims of trauma tell their stories in a counter-intuitive way, and the very things that make a victim story seem unbelievable are actually the things that corroborate that the abuse occurred.
People tend to believe stories that are linear, complete and logically coherent. Victims who have suffered traumatic brain injury are likely to have trouble retelling incidents of abuse or talk about incidents out of sequence as listeners, and people are not likely to believe a victim’s account of abuse if he or she leaves out details, gets confused or talks about events out of order. Thus, courts often do not believe domestic violence victims and order them to attend mediation.
Additionally, the mediation exemption outlined in Rule 9-205 is limited to reports of violence as defined in the protective order statute. However, this fails to capture the tactic known as coercive control, which include things such as mean and degrading comments, restricting the victim’s access to money and transportation, and isolating a victim from family and friends.
Coercive control is designed to keep victims captive and subservient and is contrary to the very principles of mediation, where the parties come to the table with equal bargaining power and ability to express themselves. She recommended that judges, mediation screeners, mediators, and other relevant personnel receive training on the ways in which trauma impacts how victims process information and tell their stories, and expand the definition of abuse in Rule 9-205 to include coercive control.
The second speaker expressed concerns with how requests for parenting time or child access made by a parent in a child support proceeding are handled and processed. Non-custodial parents currently are not allowed to make such requests in child support proceedings but must file a separate case, which places them at a disadvantage. He suggested the Rules should be modified to allow for such applications.
The third speaker noted that while there are forms and online sites available for people seeking help on family law matters, such materials ignore the very real problem of functional illiteracy. She believes dead files, or cases where a complaint was filed and never pursued, often arise due to an inability to read or understand forms or documents. She suggested considering measures that would provide assistance to such people.