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Thyden Gross and Callahan LLPCounselors and Attorneys at Law



Maryland Divorce Legal Crier

News and comments about divorce, child support, child custody, alimony, equitable property distribution, father’s rights, mother’s rights, family law, laws on divorce and other legal information in Maryland.

Child Custody While Living Together

To recap, you can file for a limited divorce, which is like a legal separation, in Maryland, based on certain grounds, or reasons.

They are set forth in Section 7-102(a) of the Family Law Article of the Maryland Code as (1) cruelty, (2) excessively vicious conduct, (3) desertion, or (4) voluntary separation.

Separation means not living under the same roof, although I have seen at least one case where the judge found that a two week vacation qualified.

Desertion can be actual or construtive. Actual desertion requires, as far as I know, that somebody leaves the house.

Constructive desertion means that it was so bad you had to leave. The departing party has the claim for constructive desertion against the one who stays.

But the Ricketts case tells us that you can file a complaint for limited divorce based on constructive desertion even while you are living under the same roof. In that case, the couple slept in separate bedrooms and the husband claimed the wife refused sex.

So what did the court have to say about Mr. Ricketts’ claim for child custody? After all, Section 5-203(d)(1) of the Family Law Article says “If the parents live apart, a court may award custody of a minor child to either parent or joint custody to both parents.”

That seemed pretty clear to me that the parents have to live apart and not together for the court to award custody. The Carroll County Circuit Court agreed when it dismissed Mr. Ricketts’ complaint. I have even heard a judge say “Don’t come into my court asking for custody if your clients are living together.”

Mr. Ricketts’ attorney was not burdened by the clear and plain language of the statute and appealed. The Maryland Court of Appeals agreed with him and reversed the Circuit Court and reinstated his complaint for divorce and custody.

So how did the court get around it? They said that Section 5-203(d)(1) must be read in conjunction with Sections 1-201(a) and (b) which give the court broad powers to decide divorce and custody matters.

We do not yet know how the Ricketts case will ultimately turn out. Unless the case settles, Mr. Ricketts will now have to prove constructive desertion and corroborate it with independent evidence at trial. But we do know from his appeal, that under these circumstances, you can file for limited divorce and custody in Maryland, based on constructive desertion, while you are still living under the same roof.


One Response to “Child Custody While Living Together”

  1. ioanna Says:

    I cant file for divorce and child support and leave in the same roof?for the best of are kids.

    I will have proble in the future if i apply for medical assistance basic my income?

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