Normally, when two parents disagree over potential changes to an existing child custody order, the court will only modify that order if there is a finding of a “material change in circumstances that affects the best interests of the child.” Of course, the parents can also reach a mutual agreement to modify custody terms. Such “consent orders” can then be approved by the court as a modification to the original order.

Court of Special Appeals Rejects Mother’s Attempt to Appeal Order She Agreed to Before Trial Judge

As a general rule, once the parents agree to a consent order, they cannot turn around and appeal the judge’s decision to enter said order. Put another way, the appellate court is unlikely to accept “buyer’s remorse” when it comes to a child custody modification agreement.

A recent unpublished decision from the Maryland Court of Special Appeals, McFarland v. Huff, offers a case in point. This case began with two parents who obtained a divorce in 2019. At the time of the divorce, the court awarded the parties joint legal custody of the parents’ minor children, as well as shared physical custody. The order contained a detailed access schedule designed, in part, to accommodate the mother’s service in the United States Navy. The order also required the mother to pay child support to the father.

When the COVID-19 pandemic began, the parents agreed to make some modifications to the custody arrangements. Eventually, the children went to live with the mother, who was deployed in Norfolk, Virginia, because the father was concerned about exposing his newborn child to COVID. The children remained with the mother for the next school year.

During this time, the mother filed a petition in Maryland circuit court to modify custody. She now sought sole legal physical and legal custody of the children because she alleged they were in “great mental and emotional distress in an unsafe environment.” The father filed his own motion to modify the existing custody and visitation order.

At a hearing, the trial court observed that there had not been any “material change in circumstances” to justify modifying the existing custody order. Nevertheless, the parents had apparently agreed to “changes” in the visitation schedule. The judge asked counsel for both parents if there was such an agreement. Both sides verbally agreed and both sides later submitted drafts of “identical” proposed orders modifying the access schedule for the children while they continued to attend school virtually due to the pandemic.

The mother then filed an appeal. Effectively, she argued the court’s final order did not reflect the parties’ agreement. The Court of Special Appeals disagreed and affirmed the order. It explained that even though the order in this case was not strictly labeled as a “consent order,” it effectively functioned as one. The mother failed to identify on appeal how the final order differed from what was either verbally agreed to at the hearing or presented in the draft orders. As such, the mother had no grounds to appeal what was effectively an order she consented to before the trial court.

Contact Waldorf Family Law Attorney Robert Castro Today

This article has been provided by the Law Office of Robert Castro. For more information or questions contact our office to speak to an experienced lawyer at (301) 870-1200.

Source:

https://www.courts.state.md.us/sites/default/files/unreported-opinions/0871s21.pdf