Maryland Child Custody Material Change Circumstances Sole Physical Custody Baltimore Montgomery County
Maryland Child Custody Material Change Circumstances Sole Physical Custody Baltimore Montgomery County
GARY McMAHON v. ADA INEZ PIAZZE
No. 1776, September Term, 2004
COURT OF SPECIAL APPEALS OF MARYLAND
162 Md. App. 588
Issues:
Whether a material change in circumstances was not necessary in order to obtain "minor" changes in the child custody order?
Whether the Petition states a claim for relief by way of making any of the requested changes to the Consent Order?
Whether the Trial court failed to give the father an opportunity to explain why leave to amend should have been granted
Whether a material change in circumstances was not necessary in order to obtain "minor" changes in the custody order?
The "material change" standard ensures that principles of res judicata are not violated by requiring that such a showing must be made any time a party to a custody or visitation order wishes to make a contested change, even if it is to an arguably minor term. The requirement is intended to preserve stability for the child and to prevent relitigation of the same issues. See Domingues v. Johnson, 323 Md. 486, 498, 593 A.2d 1133, 1139 (1991). We therefore reject McMahon's contention that a different standard applies to petitions for "minor" modifications to the terms of a custody order.
Whether the Petition states a claim for relief by way of making any of the requested changes to the Consent Order?
The court held that "under these Maryland pleading requirements, the Petition fails to state a claim. The allegations of fact are extremely general. They are no more than a reference to factors present in almost any case. The averment of a material change in circumstances is entirely conclusory. No nexus between the facts and the conclusion can be inferred, other than by speculation. Consequently, granting the Motion was not erroneous."
Whether the Trial court failed to give the father an opportunity to explain why leave to amend should have been granted?
The court held that "the general rule is that amendment should be allowed liberally. Further tending to point the circuit court's exercise of discretion toward allowing amendment in the instant matter is that the issue is the best interest of a child, an issue that is not ordinarily decided on a point of pleading. For these reasons, we hold that the circuit court abused its discretion when it failed to give McMahon an opportunity to explain why leave to amend should have been granted."
Accordingly, we shall vacate and remand. Any application for leave to amend shall be filed within fifteen days of the receipt of the mandate by the circuit court.
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