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

A Rose by Any Other Name?
December 22, 2022

In Kadish v. Kadish, 254 Md. App. 467 (2022), the Court was faced with egregious discovery violations in a child custody case.  Stated simply, the child’s mother failed or refused to provide discovery responses several times, failed to appear for depositions on three separate occasions, and also violated a series of escalating court orders compelling discovery.

However, in a custody case, the best interests of the child must be fully considered.  The trial court issued an order establishing a “rebuttable presumption” that the child’s best interests would be served by modifying custody in favor of the father.  It invited the mother to testify as to facts concerning best interests, notwithstanding her many discovery defaults.  The trial judge stated:

[M]y decision in this case is not to punish anyone for not complying with court rules. That’s not what we do in family law. It’s — everything is about the child’s best interest.

The appellate court wrote:

Ultimately, Mother did not proffer anything that was precluded on the issues of custody or child support. During Mother’s direct examination, Father’s objections to Mother’s testimony based on the court’s discovery sanctions were overruled. The judge explained that she was “going to hear about matters bearing on the child’s best interests.”

The appellate court affirmed, writing that, in a custody case, “we must be satisfied that the court has applied the best interests of the child standard in its determination. When the custody of children is the question, ‘the best interest[s] of the children is the paramount fact. 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.’”  [emphasis added].  The Court of Special Appeals 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.”

A court hearing a custody dispute “has an absolute and overriding obligation to conduct a thorough examination of all factors” impacting the child’s best interests.  The Court wrote that “plainly” the child’s best interests are served by a decision that is “as well-informed as possible.”

[T]he 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 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. [emphasis added].

The Kadish Court concluded:

We hold that the trial court contended with Mother’s incessant discovery violations properly by fashioning sanctions that, among other things, restricted her ability to present evidence at trial that she failed to produce in discovery without barring any evidence necessary for the court to consider in making a custody determination in S.’s best interests. Indeed, the trial judge expressly preserved Mother’s ability to present “evidence directly bearing on the best interests of the minor child” in her orders imposing sanctions. At trial, and over Father’s objections, the court permitted Mother to present testimony and any other evidence that she had (although she presented none) bearing on S.’s best interests. On appeal, Mother has not identified any evidence bearing on S.’s best interests that she was precluded from offering at trial. [emphasis added].