Maryland’s Special Rule for Discovery Sanctions in Child Custody Cases – cont.

Several years ago, I wrote about Maryland’s Special Rule for Discovery Sanctions in Child Custody Cases (Aug. 6, 2022), discussing Kadish v. Kadish, 254 Md. App. 467 (2022), where the Court was faced with egregious discovery violations in a child custody case. The Court held that in a custody case, the best interests of the child is paramount, and the: “Rights of father and mother sink into insignificance before that.’…  ‘[P]rocedural defects should not be corrected in a manner that adversely impacts the court’s determination regarding the child’s best interests.’”

In the words of the late Yogi Bera, a recent decision is “déjà vu all over again.”  The Kadish principle was applied and led to vacating a trial court’s judgment in Thomas v. Steele, 2025 WL 2601801 (Appl. Ct. Md. Sep. 9, 2025)(unreported). Thomas involved custody and child support.

Mother[1] moved to compel Father to answer interrogatories and for immediate sanctions.  Father served answers to interrogatories but did not answer the motion. “[A]bout a month before the merits hearing, the court entered an order granting Mother’s motion to compel discovery and ordering Father to answer any interrogatories not already answered within ten days.”  Id. at *1.

Father appeared pro se at the merits hearing. Father said he wanted to testify and call witnesses who were not present. Mother objected because Father had not listed any witnesses in his answers to interrogatories. Id. at *1.

The court deferred consideration of Father’s request to call his witnesses, responding: “Okay. Sir, we’re going to proceed. I will take your testimony, and then we’ll go from there.”

Id. at *2. Father testified; however, there was then a colloquy about his calling additional witnesses. The trial court ruled:

THE COURT: Okay. Well, [Mother’s counsel] said she didn’t get any notice that you planned on calling any witnesses. All right. So, in that case then, [Father], the [c]ourt will find that you are resting because you don’t have any additional witnesses or testimony to provide to me today. And we will turn over to [Mother’s] case.

Id. at *2. In essence, the trial court entered an exclusionary order based on a discovery violation in a custody case.

After the Mother testified, she was granted sole legal custody and other relief.  Father appealed.

Quoting Kadish and another precedent, the Thomas Court wrote:

“In a child custody case, the discretion of the trial court to exclude evidence is not only measured by the potential prejudice to the parties, but is constrained by a court’s ‘absolute and overriding obligation to conduct a thorough examination of all possible factors that impact the best interests of the child.’” … “This supreme obligation may restrain the court’s broad authority to exclude evidence as a discovery sanction” because “a child’s best interests are best attained when the court’s decision is as well-informed as possible.”… Thus, while we typically evaluate a trial court’s discovery sanction in a civil case through the well-defined lens of abuse of discretion, in a child custody case, “we must be satisfied that the court has applied the best interests of the child standard in its determination.”

Id. at *3 (cleaned up).  It added:

We do not condone the behavior of discovery violators and do not intend that protecting minor children have the collateral effect of giving discovery offenders a pass. We encourage trial courts to be creative in finding sanctions other than precluding evidence, but recognize that, even where a court exhausts other remedial steps to enforce discovery, sometimes the failure by obstinate parties and their counsel to follow the rules make more extreme sanctions necessary. When this occurs in a child custody case, the court’s independent obligation to the child[ren] requires that, before ordering the exclusion of evidence as a sanction, the court should take a proffer or otherwise ascertain what the evidence is that will be excluded, and then assess whether that evidence could assist the court in applying the Sanders-Taylor factors in its determination of the best interests of the child[ren]. When the court completes this assessment, we review any discovery sanction it imposes thereafter for an abuse of discretion.

Id. (emphasis added; cleaned up; citation omitted).

The Court’s holding was clearly stated:

In other words, before a trial court can exclude testimony pertinent to the best interest of the child as a sanction for a discovery violation, the court must take a proffer or otherwise ascertain the substance of the proposed testimony. If the court has informed itself of the substance of the proposed testimony before ruling on an objection to the admission of the testimony, we review the court’s evidentiary ruling for abuse of discretion.

Id. (emphasis added; cleaned up).

On the facts presented in Thomas, the Court held that it was error to prohibit Father from calling witnesses without engaging in that inquiry.  “The discussion during the proceedings indicates that the court effectively barred Father from calling his witnesses and determined that he had rested his case, despite Father’s suggestion that he could ‘bring witnesses tomorrow’ (on the second day of trial).” Id. at *4.

The Thomas Court also rejected Mother’s argument that Father was not prejudiced by the exclusionary ruling:

[P]rejudice to the parties (or lack thereof) is not the sole measure by which to evaluate whether to exclude evidence. As we have explained, “[i]n a child custody case, the discretion of the trial court to exclude evidence is not only measured by the potential prejudice to the parties, but is constrained by a court’s ‘absolute and overriding obligation to conduct a thorough examination of all possible factors that impact the best interests of the child.’”

Id. at *4, citing Kadish.

The Appellate Court emphasized that the trial court has an “independent obligation” to children in custody cases.  “For the reasons stated, the court erred in excluding Father’s witnesses because he had not disclosed them in discovery. Accordingly, we vacate the judgment and remand the case for the circuit court ‘to reassess the best interests of the children after a full presentation of evidence” relevant to that determination.’” Id. at *4.

Thomas “is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B).”

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[1] The Court used the terms “Mother” and “Father” in its opinion. I follow that terminology in this blog.