After an appellate court reaches its decision on a case, it issues a written opinion that is either published or unpublished. If published, the opinion becomes binding precedent. In other words, not only does it direct a different outcome in the appealed case, it governs all future cases that address the same issues. If unpublished, on the other hand, the appellate court’s opinion only applies to that case. Therein lies the deeper power of appeals: their potential to make or change the law.
DV LEAP, with superstar co-counsel Crowell Moring, recently won an appeal in a Maryland custody case. It was an important appeal. The trial court had granted the violently abusive father shared custody, putting the parties’ young child at risk of further abuse. DV LEAP’s client, the child’s mother, had been granted multiple protection orders against the father, the most recent resulting from the father physically assaulting her at a visitation exchange in front of the child. Maryland law requires courts to take certain protective steps when a parent has committed abuse. In violation of that law, the trial court did not take those steps despite the protection orders granted against the father based on his abuse.
The Maryland Court of Special Appeals ruled in favor of DV LEAP’s client, finding that the existence of the protection orders against the father triggered the trial court’s obligation to restrict his access to ensure the child’s safety. Unfortunately, the opinion was unpublished and DV LEAP’s motion requesting the court to publish the case, supported by amicus organization Child Justice, was denied. This result was a missed opportunity to expand and strengthen Maryland law’s protection of children experiencing family violence. If published, the case would have clarified that a finding of abuse against a parent, even if that finding was made in another case (such as the protection order cases against this father), must be accepted by the family court--regardless of whether that court found abuse, requiring that court to ensure that its custody order protected the child(ren) from further abuse.
It is not clear why the Maryland Court of Appeals failed to publish the opinion on its own initiative in this case and doubled down on its position when asked to do so. The only guidance from the Maryland Rules on criteria for publication are that “only those opinions that are of substantial interest as precedents” should be designated for publication. As described above, this case seemed to be exactly the type of case that should be published in light of its important clarification of the law. While a disappointing opportunity missed, DV LEAP has a strong history of published appellate victories that have changed individual survivors' lives AND made the law better protect future survivors. We will continue to do the work necessary to give the survivors the legal protections they need and deserve.
*MD Rules, Rule 8-605.1(a)