Father & Co. Editorial
The Maryland Supreme Court’s unanimous decision in Clarke v. Gibson exposed a structural weakness in Maryland’s protective-order system—one that legislators can no longer afford to ignore.
For years, protective orders have been issued not on evidence, but on inference: a judge finds one parent “not credible,” and that disbelief alone becomes the foundation for a ruling that can strip a parent of custody, housing, employment opportunities, and constitutional rights overnight.
The Court just made clear—unequivocally—that this practice is unlawful.
What the Court did not say, but what every Maryland policymaker must now acknowledge, is this:
The problem is not just judicial misinterpretation. It is a systemic failure built into the statutes, procedures, and oversight structures that govern Maryland’s protective-order and custody courts.
The legislature must step in. The integrity of Maryland’s family-protection system—and the safety of children and parents—depends on it.
The Core Problem: Protective Orders Have Become a Substitute for Due Process
Protective orders were designed to protect victims of abuse quickly and effectively.
But over time, Maryland courts have expanded their use to fill gaps in an overwhelmed family-court system:
- to adjudicate custody emergencies without custody hearings,
- to decide credibility disputes without evidence,
- to resolve family conflict under an accelerated timeline,
- to impose supervised visitation without findings under Title 9,
- to override existing custody orders without meeting statutory standards,
- and to control parents’ movements, communications, and constitutional rights—based on hearings that often last only minutes.
This mission creep has created a parallel custody system where the normal rules of evidence do not apply, discovery is nearly impossible, and the rights of parents—especially pro se and indigent parents—are routinely sidelined.
The Supreme Court’s ruling in Clarke drew attention to a narrow procedural flaw.
But that flaw sits atop a much deeper structural crisis.
Legislators Must Intervene: Judicial Guidance Is Not Enough
Maryland has a long history of assuming that “training” will fix family-court errors. It has not.
Clarke proved that the judiciary cannot police itself reliably in this domain.
Only statutory reform can fix the system’s underlying defects.
Below are six legislative safeguards Maryland must adopt now.
1. Require Written Findings of Fact in All Final Protective Orders
Currently, many protective orders are issued based on:
- an oral remark about credibility,
- a brief statement that “abuse occurred,”
- or a spoken reference to allegations not supported by evidence in the record.
This is unacceptable.
Legislators must require written findings outlining:
- each act found to constitute abuse,
- the evidence supporting each finding,
- the statutory basis for the ruling,
- why lesser restrictions were not sufficient.
Written findings are the only way to ensure appellate review and judicial accountability.
2. Prohibit Courts From Relying on Evidence Not Formally Admitted
Clarke v. Gibson highlighted a common problem: trial courts referencing DSS reports, summaries of interviews, and other materials that were never entered into evidence.
Legislation should make clear:
- DSS reports must be admitted formally if relied upon.
- Judges cannot base findings on summaries, proffers, or references.
- Respondents must have the right to challenge, cross-examine, or rebut any report the court considers.
This strengthens—not weakens—protection for children.
3. Guarantee the Right to Counsel in Child-Abuse Protective Orders
In protective-order cases involving allegations of child abuse, the stakes are equivalent to—or greater than—juvenile dependency proceedings. Yet parents in protective-order hearings receive no automatic right to counsel.
A parent may lose custody for a year based on a ten-minute hearing while standing alone.
This violates every principle of fairness and justice.
Maryland must enact a statutory right to counsel where:
- a protective order could alter custody, or
- child-abuse findings are alleged.
No parent should face the loss of their children alone simply because they cannot afford representation.
4. Enforce the 7-Day Hearing Rule—With Consequences
The statute requires final protective-order hearings within seven days of service.
In practice, courts routinely extend these hearings without placing “good cause” findings on the record.
The Supreme Court refused to address this issue in Clarke because the respondent failed to object. But legislatively, the problem is undeniable.
The General Assembly should require:
- written findings every time a delay exceeds seven days,
- strict limits on allowable reasons for delay,
- and automatic dismissal of the temporary order if the court fails to comply.
Justice delayed is justice denied—on both sides.
5. Create an Independent Family Court Review Commission
There is no system in Maryland that:
- monitors misuse of protective orders,
- tracks statistical disparities,
- investigates judicial misconduct in family matters,
- or analyzes patterns of race, gender, disability, or socioeconomic bias.
Maryland needs a dedicated, independent oversight body—not a subset of the judiciary—to evaluate:
- protective-order issuance rates,
- findings of child abuse unsupported by evidence,
- the prevalence of “credibility-only” rulings,
- the frequency of custody overrides via protective orders,
- and the treatment of pro se litigants.
Without external oversight, courts will continue operating in a closed ecosystem that resists transparency.
6. Require Audits and Transparency of DSS Investigations Used in Court
DSS investigations vary dramatically from county to county. Many:
- contain hearsay,
- rely on unrecorded interviews,
- are never disclosed to respondents,
- and are regularly referenced without being admitted as evidence.
Legislation must require:
- disclosure of the full DSS investigative file before the final hearing,
- the right to record DSS interviews,
- mandates that DSS reports be sworn and subject to perjury penalties,
- and automatic exclusion of any DSS material not disclosed to both parties.
Children deserve investigations that are thorough, transparent, and accountable.
The Larger Truth: Maryland’s Family-Protection System Is in Crisis
Maryland has tried for twenty years to balance rapid response with due process in protective-order cases.
The result is a system that empowers courts to act fast but often at the expense of fairness.
This is not simply a matter of judicial discretion. It is a design flaw.
Parents have been:
- separated from their children on flimsy evidence,
- subjected to supervised visitation without statutory findings,
- pushed into mandatory counseling programs,
- or treated as abusers based solely on failing a judge’s credibility test.
The Supreme Court’s decision in Clarke v. Gibson is a powerful corrective.
But without legislative safeguards, the same errors will continue—quietly, routinely, and without consequence.
Conclusion: It Is Time to Protect Both Safety and Due Process
Maryland’s protective-order system exists to protect victims.
But justice requires more than speed.
It requires evidence, transparency, and oversight.
The General Assembly must act in the upcoming session.
- To protect children from real abuse.
- To protect innocent parents from false allegations.
- To protect the integrity of the courts.
- To ensure that protective orders remain tools of safety—not weapons of custody warfare.
The Supreme Court has spoken.
Now it is the legislature’s turn.
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Father & Co. exists to support parents navigating separation, custody, and systems that are often confusing, isolating, or overwhelming. This work is grounded in lived experience, careful research, and respect for the real stakes families face.
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