If you have obtained a divorce in Maryland and there is a custody Order currently in force, it is possible to ask the Maryland divorce court to modify the Order. This can be done if there has been a “material change in circumstances” since the time that the custody Order was entered.

When asking the court to modify a custody Order, the procedures and process can be confusing. This is one reason to hire highly experienced and legally trained Maryland child custody and family law attorneys. If you have questions about divorce and child custody in Maryland, contact us here at the Law Office of Robert Castro. Call us at (301) 870-1200 or use our contact page. We are a Child Custody Law Firm in Charles County, Maryland, with offices in Waldorf, Maryland.

One issue that is particularly confusing is the question of whether “service of process” is necessary when one parent asks the court to modify custody. This question might be phrased as “do I need service of process for a Motion To Modify Custody.” The answer to that question is “no.”

In explanation, “service of process” is a legal procedure with a specific meaning and definition. Generally, “service of process” means that the “court papers” must be hand-delivered by a County Sheriff’s Deputy (or other court-appointed individual process server). Often, the initiating “court papers” are called the Complaint and Summons. The Complaint relates the reasons that the case has been filed — a divorce, for example — and the Summons “calls” the target of the case into court.

Under the law, for a Maryland divorce court to obtain full power and authority over the parties to a divorce case, service of process — the hand-delivery of the initiating court papers — must be accomplished. Further, in addition to receiving a hand-delivery of a copy of the initiating court papers, the receipt MUST be verifiable. For this reason, it is not sufficient to mail a copy of the initiating court papers; those papers must be hand-delivered. As noted, once that is completed, the Maryland divorce court has full power over the spouses, their minor children, and any marital property.

Some clients then wonder why service of process is NOT necessary when a spouse seeks to modify a custody Order. The answer is that the Maryland divorce court retains power and authority over custody issues until the child or children are old enough to be considered adults. In other words, legally and constitutionally, the original service of process — done at the beginning of the divorce — is sufficient for the court to retain its power and authority for years and years (depending on the ages of the children involved).

That being said, it IS still necessary for a spouse to NOTIFY the other spouse of any efforts to modify an Order of custody. However, generally, it is sufficient to mail a copy of the request to modify. Often, the spouses are represented by lawyers and, thus, it is often sufficient to mail a copy of the request to modify to the lawyers of the spouses. Once the other spouse is notified, the court can then move to consider the request.

Understand that notifying the other parent is not about the court’s power and authority. Rather, the issue is about fairness and practicality. It would be unfair to the other parent for the court to take action without the other parent having notice. Such would also create unnecessary complications.

Do I need to send notice via certified mail, return receipt requested?

Maryland divorce courts generally want proof that the other parent has been notified of a request to modify custody. Typically, it is sufficient to complete a Certificate of Mailing. However, asking for a return receipt from the U.S. Postal Service provides an extra layer of proof for the court. Another option is to use an overnight delivery service that will provide proof of delivery.

Contact Waldorf, Maryland Family Law and Child Custody Lawyer 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 Maryland family law and divorce lawyer at (301) 870-1200. We are Waldorf, MD, Family Law lawyers. Our address is 11701 Central Avenue, Suite 200, Waldorf, MD 20601.