"Custody hearing"

[Proserpina]

And what part of my post here do you disagree with?

Pointing out one error on another post that is completely irrelevant to this post is nonsense.

And btw, who died and appointed you a moderator?

Actually, it points to your credibility.

Or, perhaps, lack thereof.

Choice is yours, really.

 

[LdiJ]

And what part of my post here do you disagree with?

Pointing out one error on another post that is completely irrelevant to this post is nonsense.

And btw, who died and appointed you a moderator?

I will tell you what part of your post that I disagree with.

Case law is CRITICAL in third party visitation cases...and you tell him not to get to "hung up on it"? Case law in third party cases can make or break any argument that the opposition puts forth.

Case law is particularly critical in MD, for this poster, because its highly favorable to the parents.

 

[Intact family]

I don't think this is a "slam dunk" case although on paper it certainly should be. The judge who denied our motion to dismiss did not even know the most fundamental part of the Koshko case, which was the establishment of threshold requirements for third party visitation equal to that of custody - parental unfitness or exceptional circumstances. When our lawyer started to explain the ruling the judge interrupted her and said "well this case is about visitation, not about custody." That comment alone proved she didn't know what she was talking about. How a family law judge did not even know such a basic ruling is beyond my comprehension. When our lawyer continued to explain, the judge was not even listening, as she was literally shaking her head and rolling her eyes. She obviously had made up her mind before the hearing even started.

Our next hearing will be in front of a master. Our lay witnesses, who are our friends and neighbors, will also testify that our children are fine and that they play with their children on a nearly daily basis. I hope the judge takes that into consideration as well instead of relying solely upon either expert.

If the same judge decides our case I think we could be in trouble, as she is totally incompetent and biased in favor of GP's, although she even admitted to both attorneys at the bench that the law clearly favors parents. She said that after she denied the motion. From my perspective, the only way grandma could get visitation is if the judge is convinced that the kids will somehow be harmed in the future, as there is simply no evidence of current harm and it has been one year since they have seen grandma. I guess if their expert is really slick and convincing and ours isn't then the court could rule in her favor.

With judges, anything can happen.

 

[LdiJ]

I don't think this is a "slam dunk" case although on paper it certainly should be. The judge who denied our motion to dismiss did not even know the most fundamental part of the Koshko case, which was the establishment of threshold requirements for third party visitation equal to that of custody - parental unfitness or exceptional circumstances. When our lawyer started to explain the ruling the judge interrupted her and said "well this case is about visitation, not about custody." That comment alone proved she didn't know what she was talking about. How a family law judge did not even know such a basic ruling is beyond my comprehension. When our lawyer continued to explain, the judge was not even listening, as she was literally shaking her head and rolling her eyes. She obviously had made up her mind before the hearing even started.

Our next hearing will be in front of a master. Our lay witnesses, who are our friends and neighbors, will also testify that our children are fine and that they play with their children on a nearly daily basis. I hope the judge takes that into consideration as well instead of relying solely upon either expert.

If the same judge decides our case I think we could be in trouble, as she is totally incompetent and biased in favor of GP's, although she even admitted to both attorneys at the bench that the law clearly favors parents. She said that after she denied the motion. From my perspective, the only way grandma could get visitation is if the judge is convinced that the kids will somehow be harmed in the future, as there is simply no evidence of current harm and it has been one year since they have seen grandma. I guess if their expert is really slick and convincing and ours isn't then the court could rule in her favor.

With judges, anything can happen.

Their expert will have had no contact with the children. Therefore their expert should certainly not be more credible than yours.

 

[Intact family]

Their expert will have had no contact with the children. Therefore their expert should certainly not be more credible than yours.

Excellent point, which is why I think they will still ask the court at some point for either their own expert to interview the kids or one appointed by the court. In either case, I think the court would be reluctant to grant that as she is a third party against two fit parents.

 

[Intact family]

Essentially, grandparents have the burden of proving that the child will be harmed if they don't get visitation rights. If there's no proof, they should lose.

That is the issue upon which our entire case will revolve, as she has already admitted we our fit parents. In a recent MD case, the parents lost at the circuit level becasue the GP's had provided daily or near daily day care for a number of years, and the judge said it was "commonsense" that the kids would be harmed by not seeing them. The judge said the the breaking of that bond was enough, in his eyes anyway, to constitute "exceptional circumstances" and he awared visitation. The appeals court reversed because the GP's had not shown actual evidence that they were harmed. So that case definitely backs us up because Grandma never provided day care (occasional babysitting only), was not nearly as involved and was never a "parent like figure" as the other grandparents were.

Where our case differs is in the expert witnesses. In the above case, there were only lay witnesses for each side. As far as I know, ours is the first GPV case in MD since the Koshko ruling where each side has an EW. So I think we are treading on some new ground with this one.

 

[Tex78704]

I will tell you what part of your post that I disagree with.

Case law is CRITICAL in third party visitation cases...and you tell him not to get to "hung up on it"? Case law in third party cases can make or break any argument that the opposition puts forth.

Case law is particularly critical in MD, for this poster, because its highly favorable to the parents.

I never suggested case law was 'unimportant', but rather not focus his efforts exclusively on case law favoring his position.

The reason I say this is that despite the fact that case law may indeed be highly favorable against GPV in MD, there are other aspects to this particular case such that the case is now being allowed to move forward to a trial.

Which strongly suggests there is enough wiggle room and gaps in the current law that if granny can make a good case, the judge can grant visitation.

So OP should go beyond case law favoring his position and try to understand the applicable statutes and any opposing case law.

The plain letter of the statutes is much more compelling than case law. Case law does not rewrite or correct the law, but rather clarifies questions or confusion on the interpretation and application of statutes that are unclear and not so 'plain letter'. And this seems to be a concept many here do not understand.

Legislators make law.
Judges do not make law.

Case law arises from appeals. Aside from challenges to the constitutionality of a law as written or applied, the function of appeals courts is to ensure the lower courts within their district comply with the letter and intent of the law. And the only way they can do that is when an appeal or mandamus is filed. If there is any question on the wording of a statute and how that applies to a given set of facts, an appeals court will render an opinion on its interpretation of the law, and that establishes precedent.

Appeals courts rarely contradict the plain letter of any statute, and those that do are usually overturned at the state supreme court level. A lower court judge is fully with their rights to made their own determination on the interpretation of a statute, the application of the evidence to any statute, and the relevance of cited case law to the case before him.

And as things go in family courts, if there is any legal fingerhold in the statutes to allow a judge to rule a certain way, and there is substantive evidence to support his position, an appeals court will rarely mess with a judges determination of the relative weight of the evidence, even if they do not agree with it, and the ruling will stand.

If the judge plays the“best interests of the child” trump card well, that is often an appeal killer.

Where our case differs is in the expert witnesses. In the above case, there were only lay witnesses for each side. As far as I know, ours is the first GPV case in MD since the Koshko ruling where each side has an EW. So I think we are treading on some new ground with this one.

What this suggests is if that case had expert witnesses on both sides, and the judge accepted the recommendations of the one that favored his ruling, and that expert witness said the right things in court, and judge had not put foot in mouth suggesting his rulings were based upon "common sense", that quite possibly the appeals court may not have overturned the ruling.

 

[LdiJ]

I never suggested case law was 'unimportant', but rather not focus his efforts exclusively on case law favoring his position.

The reason I say this is that despite the fact that case law may indeed be highly favorable against GPV in MD, there are other aspects to this particular case such that the case is now being allowed to move forward to a trial.

Which strongly suggests there is enough wiggle room and gaps in the current law that if granny can make a good case, the judge can grant visitation.

So OP should go beyond case law favoring his position and try to understand the applicable statutes and any opposing case law.

The plain letter of the statutes is much more compelling than case law. Case law does not rewrite or correct the law, but rather clarifies questions or confusion on the interpretation and application of statutes that are unclear and not so 'plain letter'. And this seems to be a concept many here do not understand.

Legislators make law.
Judges do not make law.

Case law arises from appeals. Aside from challenges to the constitutionality of a law as written or applied, the function of appeals courts is to ensure the lower courts within their district comply with the letter and intent of the law. And the only way they can do that is when an appeal or mandamus is filed. If there is any question on the wording of a statute and how that applies to a given set of facts, an appeals court will render an opinion on its interpretation of the law, and that establishes precedent.

Appeals courts rarely contradict the plain letter of any statute, and those that do are usually overturned at the state supreme court level. A lower court judge is fully with their rights to made their own determination on the interpretation of a statute, the application of the evidence to any statute, and the relevance of cited case law to the case before him.

And as things go in family courts, if there is any legal fingerhold in the statutes to allow a judge to rule a certain way, and there is substantive evidence to support his position, an appeals court will rarely mess with a judges determination of the relative weight of the evidence, even if they do not agree with it, and the ruling will stand.

If the judge plays the“best interests of the child” trump card well, that is often an appeal killer.

What this suggests is if that case had expert witnesses on both sides, and the judge accepted the recommendations of the one that favored his ruling, and that expert witness said the right things in court, and judge had not put foot in mouth suggesting his rulings were based upon "common sense", that quite possibly the appeals court may not have overturned the ruling.

You are viewing a third party case as if it were a parent vs parent case where both parties approach the case on an equal playing field. That is not the case here. Fit parents have constitutional rights that cannot be abridged simply because a judge feels that his/her opinion of the child's best interest is more worthy than that of the fit parents. The grandparents have no constitutional rights of any kind regarding their grandchildren. The grandparents must prove that the children are harmed by a lack of the grandparent's in their lives. These grandparents cannot do that. They have been out of the children's lives for over a year, and the children have suffered no harm, nor can their expert witness testify to such.

I do agree that with parent vs parent cases, if there is wiggle room for a judge to make a "best interests decision" that might not quite stack up to established case law, that an appeals court generally won't mess with the judge's decision. Again, because the parents stand equal in the law. However, again, this is a third party case and different standards apply.

I really have the sense that this is a topic of law of which you are not very familiar. The weight of case law in third party cases is much different than in a parent vs parent case...specifically due to the constitutional issues.

Are you familiar with the USSC ruling Troxel vs Granville? The vast majority of the US State Supreme Courts have either ruled their GPV statutes as unconstitutional or have severely limited/restricted their usage since Troxel was decided in June of 2000. MD happens to be one of those states.

 

[Tex78704]

I agree with you on these, and I do understand the Troxel case, and the implications for fit parents. And I agree with the decision in this case.

Fit parents have constitutional rights that cannot be abridged simply because a judge feels that his/her opinion of the child's best interest is more worthy than that of the fit parents.

While I agree 100% with this, family court judges do violate these rights far more than one would think, and there is very little to no consequence for this. Appeals courts are by and large a joke. But rather than going on a tirade about this, I will move on to the next point.

I am not sure what you refer to by 'differing standards' in reviewing the weight of case law, and that the standards for case law in third party cases is higher. If there are any statutory requirements for such, or rules of civil procedure dictating such, please enlighten me. I do not suggest this in a bad way, I am just curious on this point.

However, if you meant differing standards in the context of "clear and convincing" evidence vs "preponderance of the evidence", then that I understand. And I believe the fundamental liberty interest at stake in a case such as this requires nothing less than a "clear and convincing" standard in reviewing evidence, although many states have not seen fit to codify this requirement, including my own state. But I have not seen anything to suggest a clear and convincing standard changes how a judge considers the applicablity of any given case law to the case at hand.

Even though I believe my own states family code has heightened requirements for some types of third party suits, there is nothing to suggest differing weights for case law depending upon the type of case.

 

[Intact family]

In order for a GP to win visitation over the objection of fit parents here in MD, not only must they produce evidence that is "clear and convincing," they must also show that the harm suffered would be "significant and deleterious." I loved my grandparents but to think I would have suffered "significant and deleterious" harm without them in my life is ludicrous.

It's also important to note that even a third party who raised a child and acted as a de facto parent doesn't automatically qualify for "exceptional circumstances." Research Margaret K. vs. Janice M, a lesbian couple where one of them adopted a child and the other lived with and raised her as well for over four and a half years before the relationship ended. Long story short, the non custodial partner initially won visitation privileges until the Court of Appeals stepped in and said that first, Maryland does not recognize de facto parenthood, and two, even if it did that is not in and of itself an exceptional circumstance. The non custodial partner had all visitation privileges revoked, as the COA viewed her as a third party and nothing more, despite the fact that she was a parental figure. Since there was no biological or legal relation, she was out of luck.

I hear what you're saying about family law judges not following the law and I realize there is a small but real chance grandma could win in the circuit court. However, given the record of the appellate courts here in MD since Koshko, I would be very confident that they would overturn the circuit court's decision if it ruled for grandma. Still, I'm not getting my hopes up too much because I realize the battle has just begun and that this could drag on for another few years. If we do lose in the lower court well, all I can say is that it would be unprecedented in this state, especially when IMO grandma's case is weaker than any of the others I have read about which have made it to the appeals courts.

 

[Intact family]

Oh, and just to be clear, the law in MD is that the GP, or third party, MUST prove parental unfitness or exeptional circumstances BEFORE the court can look at the best interest factor. That is the result of Koshko in a nutshell. Naturally, attorneys for the GP's try to circumvent the threshold requirements and go straight to best interest, since that is a much lower hurdle than the two threshold criteria. Now, I could easily see a judge who is personally in favor of GPV say "well, granny's expert witness said the kids might be harmed at some point in the future and I believe him, so I am going to go ahead to the best interests of the children and award visitation." As a matter of fact I wouldn't be surprised at all if the judge who denied our motion to dismiss did that exact thing. But, is saying that the children "may" be harmed in the future the same thing as "proving" they will be harmed in the future? Obviously they are two entirely different things to me but to a biased judge the former may be all she needs to find exceptional circumstances.

 

[Tex78704]

You may be absolutely within your constitutional and legal rights as an arguably "fit parent", and the court will probably acknowlege this, and you and your wife will rid your children of seeing their grandmother.

That said, anyone who would go to such lengths to deny even minimal visitation on their own terms to a GP has gotta have one messed up family. If the GP was a threat to the childen's health or well being, that is one thing. But most often family squabbles and alienation are the result of the most absurd things. Children are the ultimate pawns for manipulation and payback or revenge for past slights by GP's.

Maybe your children will learn from what they see, and may one day invoke their rights as fit parents to deny you visitation of your grandchildren.

Or should you ever get divorced while your children are young and your wife is given custody, you can bet your bottom dollar your wife will do her best to alienate your children from you as she is doing to her own mother.

Being right and doing the right thing are not always synonomous, and I am inclined to believe they are not in this case. Just seems like there has to be a middle ground that can be on your terms that would be in the better interests of all, including your children.

 

[LdiJ]

I agree with you on these, and I do understand the Troxel case, and the implications for fit parents. And I agree with the decision in this case.

While I agree 100% with this, family court judges do violate these rights far more than one would think, and there is very little to no consequence for this. Appeals courts are by and large a joke. But rather than going on a tirade about this, I will move on to the next point.

I am not sure what you refer to by 'differing standards' in reviewing the weight of case law, and that the standards for case law in third party cases is higher. If there are any statutory requirements for such, or rules of civil procedure dictating such, please enlighten me. I do not suggest this in a bad way, I am just curious on this point.

However, if you meant differing standards in the context of "clear and convincing" evidence vs "preponderance of the evidence", then that I understand. And I believe the fundamental liberty interest at stake in a case such as this requires nothing less than a "clear and convincing" standard in reviewing evidence, although many states have not seen fit to codify this requirement, including my own state. But I have not seen anything to suggest a clear and convincing standard changes how a judge considers the applicablity of any given case law to the case at hand.

Even though I believe my own states family code has heightened requirements for some types of third party suits, there is nothing to suggest differing weights for case law depending upon the type of case.

I have experience working with literally thousands of parents trying to fight third party cases, both before and after Troxel.

Pre-Troxel, some parents were able to prevail on appeal, but many were not.

Post-Troxel, I cannot remember a single parent who appealed a gpv decision, who did NOT prevail in the higher courts. I am not stating with absolute certainty that none lost...just none of the ones we worked with did.

Most state statutes have been revised since then, by the legislators, due to higher court rulings, and different best interest standards have been adopted for GPV cases, as well as tightening the use of statutes.

In this instance, because its an intact family, the fact that the judge did not dismiss the case is in itself a strong argument for an error of law on the part of the judge.

 

[Intact family]

You may be absolutely within your constitutional and legal rights as an arguably "fit parent", and the court will probably acknowlege this, and you and your wife will rid your children of seeing their grandmother.

That said, anyone who would go to such lengths to deny even minimal visitation on their own terms to a GP has gotta have one messed up family. If the GP was a threat to the childen's health or well being, that is one thing. But most often family squabbles and alienation are the result of the most absurd things. Children are the ultimate pawns for manipulation and payback or revenge for past slights by GP's.

Maybe your children will learn from what they see, and may one day invoke their rights as fit parents to deny you visitation of your grandchildren.

Or should you ever get divorced while your children are young and your wife is given custody, you can bet your bottom dollar your wife will do her best to alienate your children from you as she is doing to her own mother.

Being right and doing the right thing are not always synonomous, and I am inclined to believe they are not in this case. Just seems like there has to be a middle ground that can be on your terms that would be in the better interests of all, including your children.

Actually, it is the grandma who is the aggressor here. My wife wanted to work things out but grandma refused and simply hired an attorney without even telling us. Our first warning was a letter from her lawyer.

She wants unsupervised, court ordered visitation with our children. Our children don't want that and neither do we. Coerced visitation would be harmful to them and disruptive to our intact family.

You are WAY out of bounds with your speculation about who's right and who's not in this case without even knowing the full facts. Grandma has said she wants nothing to do with us anymore. How is it healthy for my children to be around someone with such anger and hostility towards us? Clearly, it's not. Grandma has a long history of broken relationships with other family members and friends, not just us.

And as far as your comment about my kids possibly denying visitation of their kids to me one day, I can tell you right now that I would never try and solve such a situation by suing my own children - NEVER. I would try to work things out DIRECTLY through them, not a judge. If that still didn't work, then too bad for me. My grandkids, if I ever have any, will not be my kids. There's a huge difference.

 

[LdiJ]

You may be absolutely within your constitutional and legal rights as an arguably "fit parent", and the court will probably acknowlege this, and you and your wife will rid your children of seeing their grandmother.

That said, anyone who would go to such lengths to deny even minimal visitation on their own terms to a GP has gotta have one messed up family. If the GP was a threat to the childen's health or well being, that is one thing. But most often family squabbles and alienation are the result of the most absurd things. Children are the ultimate pawns for manipulation and payback or revenge for past slights by GP's.

Maybe your children will learn from what they see, and may one day invoke their rights as fit parents to deny you visitation of your grandchildren.

Or should you ever get divorced while your children are young and your wife is given custody, you can bet your bottom dollar your wife will do her best to alienate your children from you as she is doing to her own mother.

Being right and doing the right thing are not always synonomous, and I am inclined to believe they are not in this case. Just seems like there has to be a middle ground that can be on your terms that would be in the better interests of all, including your children.

You are way out of line here. You owe the OP an apology. In fact, you owe 99% of the parents in this country who have gotten sued for gpv an apology.

These suits are not about manipulation, payback or revenge on the part of the parents. The parents are not the agressors. They are about a sense of entitlement on the part of the grandparents, and in grand measure, an attempt on the part of the grandparents to control the parents of their grandchildren.

All that 99% of the grandparents would have had to do is "play nice", and it never would have been necessary for them to sue.