Motion to dismiss denied

[Intact family]

What is the name of your state (only U.S. law)? Maryland

(I just deleted this same message and am now reposting it under a different screen name)

To review, my wife and I are being sued by her mother for GPV. We are an intact family, our three children have always lived with us and only us. Since the 2007 Koshko v. Haining case in Maryland, third parties must prove one of two things before the best interests of the child can be considered: either there is parental unfitness or "exceptional circumstances" exist such that the child would be harmed by lack of visitation with the grandparent. My MIL does not allege that we are unfit. Since it was a motion hearing to dismiss the arguments were very limited in scope.

The judge denied our motion and the case will go on, even though I feel my MIL and her attorney did not show sufficient exceptional circumstances. The grandmother never lived with us, we never lived with her, our oldest two children spent only one night at her house their entire lives, and our youngest one (turns two next month) never spent the night with her.

Their petition stated that there has always been a "steady and stable relationship" between grandparent and grandchildren, and today the opposing lawyer stood in front of the judge and said that the "cessation of visitation is an exceptional circumstance in and of itself." That is a bold faced lie, and court of special appeals in Maryland even said so in Aumiller v. Aumiller, another GPV case. In that case, the mother was divorced, the father died of a drug overdose, but the mother still won. Yet, here we are, a totally intact family, and the judge denies our motion.

What really concerns me is that the judge was not fully informed of the changes in MD law since the Koshko case, even though she claimed to have read it. For instance, when our attorney was stating the two threshold requirements, the judge interrupted her and said "aren't you talking about custody?" I was completely floored. The whole thrust of the Koshko case was that grandparents and third parties must meet the SAME THRESHOLD REQUIREMENTS FOR VISITATION AS FOR CUSTODY. THEY ARE ONE AND THE SAME NOW IN THE STATE OF MARYLAND. It's appalling for a family law judge to not know that.

Then, one or two minutes later, she interrupted our attorney again. "Didn't the Koshko court say that parents could withold visitation if they thought it would harm the child?" or something very similar to that. Wrong again, your honor. That would then put the burden of proof on the parent. Again, Koshko totally overturned that idea by putting the burden of proof on the grandparents to show that SIGNIFICANT AND DELETERIOUS HARM WOULD RESULT TO THE CHILD ABSENT THIRD PARTY VISITATION.

Where did we go wrong? I realize the case isn't over and the judge said her ruling does not mean that one side is prevailing over the other. She just said the pleading contained sufficient facts and denied our dismissal. And so the case will go on. Oh, then after her pronouncement she called both judges to the stand and my wife and I overheard her say that she hopes we can mediate and work this out. Sorry, your honor, that won't happen. We'll go if it's ordered but won't agree to anything, as the many good people on this board have said so many times.

This whole thing really has me discouraged. Any advice or comments?What is the name of your state (only U.S. law)?

 

[BL]

This may not seem right , but since grand(s) have a right to petition and they have retained council ,the courts usually let the matter be heard .

That doesn't make it right , but that's life .

You'll just have to pay more for your own attorney , and the outcome doesn't guaranty the grand(s) will prevail .

I see you have read well not to make any agreements.

 

[LdiJ]

Don't be discouraged. Judges are notorious for not dismissing gp cases and for hoping/pressing for them to be solved in mediation. Why? because they tend to want to see families resolve their differences, they tend to sympathize with grandparents, and they don't want to have to decide the case based on the law.

However, if you refuse to settle anything in mediation, and you press for the case to be decided on its merits, based on established law in MD, your odds of winning are VERY good.

 

[ecmst12]

You said their petition contained false statements...I hope someone with an actual law degree will correct me if I'm wrong, but wouldn't that be a question of fact to be determined at trial?

 

[Ohiogal]

You said their petition contained false statements...I hope someone with an actual law degree will correct me if I'm wrong, but wouldn't that be a question of fact to be determined at trial?

Depending on what the false statements are, yes.

 

[Intact family]

I don't have the petition in front of me, but their main argument as written was that the grandmother has had a "steady and stable relationship" with the grandchildren, and that the "sudden and unexplained termination" of the relationship creates exceptional circumstances in that it is harmful to the minor children.

Now, at yesterday's hearing, the GP's attorney stood before the judge and verbally said "the termination of visitation in and of itself creates exceptional circumstances." That is what is factually incorrect but apparently the judge bought it hook, line and sinker. If that were true, exceptional circumstances would be met in every GPV case and all of them would then immediately proceed to the best interest of the children. As I stated in my original post, one of the appellate courts in Maryland, in Aumiller v. Aumiller, stated that termination of visitation, "standing alone" does not in and of itself create exceptional circumstances.

An even more recent MD case illustrates this point even further. Margaret K v. Janice M involved two women in a same sex committed relationship. Janice M adopted a child from India and together she and Margaret raised the child for the nearly the first five years of her life, until Margaret and Janice terminated their 17 year relationship. Margaret was initially awarded visitation by the circuit court, as the court agreed that she was a "de facto" parent to the child. Keep in mind that Margaret lived with the child, formed a parent-child bond and performed parental duties. The case then went to the highest court in Maryland and they ruled that de facto parentage is not recognized in Maryland. Most importantly, the court stated that even if it did recognize such a classification, de facto parentage does not in and of itself constitute exceptional circumstances. The case was remanded back to the circuit court and Margaret lost all visitation rights. If someone like Margaret, a non-custodial third party in the eyes of the law, lived with and co-raised Janice's legally adopted child, how in the world can a court ever allow visitation between a grandparent, also a non-custodial third party, and grandchildren over both parents' wishes when the GP's relationship was nowhere near the intimate involvement that Margaret had with Janice's child? How can a vague statement of "steady and stable relationship" be enough for the case to move forward given the above? This is where I am having a hard time understanding why it was not dismissed.

Based on the above two cases, what the GP's lawyer said yesterday was clearly incorrect, whether he knows it or not. Unfortunately for us, it didn't matter.

 

[ElvinMelvin]

.

Where did we go wrong?

Nowhere.

Your MIL has alleged that cutting off visitation with your kids creates an "exceptional circumstance" sufficient to invoke Maryland's role as parens patriae and make an order of visitation. Your MTD alleged that this is not the case. The judge erred on the side of caution and decided to let your MIL present her facts before dismissing the case outright.

While it is certainly frustrating for you, it's all pretty standard operating procedure for gpv cases

 

[LdiJ]

Nowhere.

Your MIL has alleged that cutting off visitation with your kids creates an "exceptional circumstance" sufficient to invoke Maryland's role as parens patriae and make an order of visitation. Your MTD alleged that this is not the case. The judge erred on the side of caution and decided to let your MIL present her facts before dismissing the case outright.

While it is certainly frustrating for you, it's all pretty standard operating procedure for gpv cases

I do agree. It was a longshot from the start that you were going to get the dismissal. Not getting the dismissal however in no way improves the odds for grandma. It simply means that the judge will have to decide the case according to the law.

Make sure your attorney does his/her job in properly quoting and citing the law.

 

[janemc]

Our GPV Case was files in Maryland in Feb. 2007. We also filed a dismissal base on Koshko's brand new case law. The dismisssal was denied and the case allowed to go ahead because judge's words "the case law is too new". The Law gives the grandparents standing to file and I think judges fell they have the right to plead their case all the way out if they choose too..

The GAL is who won our case. Once the Grandparents attorney recieved his report 2 days before the trail they dismissed their case. His report stated that the kids where happy health well adjusted children (no harm). The Motion to dismiss was the only thing that went in the grandparents favor. Every Additional motion or temp. visitation and an emergancy order to take my kids on vacation out of state where all denied.

 

[Intact family]

Our GPV Case was files in Maryland in Feb. 2007. We also filed a dismissal base on Koshko's brand new case law. The dismisssal was denied and the case allowed to go ahead because judge's words "the case law is too new". The Law gives the grandparents standing to file and I think judges fell they have the right to plead their case all the way out if they choose too..

The GAL is who won our case. Once the Grandparents attorney recieved his report 2 days before the trail they dismissed their case. His report stated that the kids where happy health well adjusted children (no harm). The Motion to dismiss was the only thing that went in the grandparents favor. Every Additional motion or temp. visitation and an emergancy order to take my kids on vacation out of state where all denied.

Janemc,

Thanks for responding. I'm very interested to know in which county you reside? Does the judge appoint the GAL and could you have refused the appointment? Did the GP end up having to pay your court costs? Are you married/divorced? I'd like to hear any details you're willing to share since we're in the same state. You can post here or send me a private message if you like. Thanks very much.

 

[Intact family]

Janemc,

Thanks for responding. I'm very interested to know in which county you reside? Does the judge appoint the GAL and could you have refused the appointment? Did the GP end up having to pay your court costs? Are you married/divorced? I'd like to hear any details you're willing to share since we're in the same state. You can post here or send me a private message if you like. Thanks very much.

janemc,

If you don't mind me asking, I would also like to know the extent of the relationship between the GP's and grandchildren prior to the lawsuit, how often they saw the grandkids, did they ever live together, etc.

Thank you.

 

[janemc]

It was an extensive relationship almost every other weekend, But only with the oldest child. That was were problems started. And very interfering To the point were they acked like they were the parents and there wishes came first.

I'm on the Eastern Shore, GP asked for GAL not us, We initial tryed to fight it and have them pay for it, but in the end I'm glad the judge agreed they needed a GAL. I was only against GAL because of the mounting Attorney's Fees, Our Fees were about $24,000.00 and the case ran 10 months. Feel free to PM and I'll give more detailed info if you need it.

My attorney consulted with Koshko's attorney.

 

[Intact family]

It was an extensive relationship almost every other weekend, But only with the oldest child. That was were problems started. And very interfering To the point were they acked like they were the parents and there wishes came first.

I'm on the Eastern Shore, GP asked for GAL not us, We initial tryed to fight it and have them pay for it, but in the end I'm glad the judge agreed they needed a GAL. I was only against GAL because of the mounting Attorney's Fees, Our Fees were about $24,000.00 and the case ran 10 months. Feel free to PM and I'll give more detailed info if you need it.

My attorney consulted with Koshko's attorney.

Thanks, I'll send a PM.

 

[Intact family]

It was an extensive relationship almost every other weekend, But only with the oldest child. That was were problems started. And very interfering To the point were they acked like they were the parents and there wishes came first.

I'm on the Eastern Shore, GP asked for GAL not us, We initial tryed to fight it and have them pay for it, but in the end I'm glad the judge agreed they needed a GAL. I was only against GAL because of the mounting Attorney's Fees, Our Fees were about $24,000.00 and the case ran 10 months. Feel free to PM and I'll give more detailed info if you need it.

My attorney consulted with Koshko's attorney.

Were the weekend visits with the GP's overnight?