by James J. Gross

You can get custody of minor children in a divorce but not a pet in Maryland, DC and Virginia and most other states.  The law views pets as personal property, with no more rights than a table, chair or lamp.

But if you live in Alaska, divorce court judges are now required to consider the well-being of the pet under a new law.  The court may award custody of a pet on the basis of what is best for the animal, not the human owners.

The law also allows judges to include pets in domestic violence protection orders.

by Michael F. Callahan

We warned in Changing Child Custody that it was hard to know in a close case whether a material change in circumstances would warrant a change in child custody until the judge decides.

In Changes in Circumstances Mean Changes in Custody we provided a list of changes compiled over the years that were “material” enough to result in a change in the custody agreement or order.  The list included “A combination of changes over the years that make the current custody arrangement unworkable, difficult or very much less than ideal.”

A recent Virginia case, Friedichs v. Brown, highlights the problem.  Mr. Fredrichs argued  that the following changes in circumstances warranted a change in custody:

(1) the children’s development had evolved,

(2) the children had a closer relationship with him, and

(3) the mother was being uncooperative.

The circuit court ruled that these were not material changes, dismissed his complaint, and awarded the mother $43,462.20 for the attorney’s fees she incurred defending.  The Virginia Court of Appeals affirmed.

by Michael F, Callahan

My last post said sometimes you don’t know whether a change in circumstances is material until after trial when the judge rules.  Perhaps this will help.  Here is a partial list, compiled from our cases over the years, of changed circumstances that courts have found, or both parents conceded, were material:

  1. One parent wants to relocate with the child.
  2. One parent is relocating without the child so the current timesharing or visitation schedule will not work.
  3. The parents share physical custody equally, live in different school districts and the child is nearing kindergarten age.
  4. One parent’s mental health has deteriorated
  5. Remarriage of one parent if it affects child-rearing.
  6. Substantial change in employment location/hours of work.
  7. A combination of changes over the years that make the current custody arrangement unworkable, difficult or very much less than ideal.

If one or more of these changes are present and the current custody arrangement is no longer in your child’s best interest, it is time to seek a change. Start by communicating this to the other parent and inviting feedback. If you don’t make progress with direct discussions, consider suggesting that you and your former spouse work with a mediator skilled in child custody matters. Custody disputes are well suited for resolution through mediation. Also, look at the dispute resolution procedures, if any, in your custody agreement. A good family lawyer experienced in custody matters will be helpful to you throughout this process and will be essential if you bring your custody matter to the court for resolution.

by Michael F. Callahan

Most lawsuits end when the parties settle or the court decides the case.  If you are disappointed you can’t return to court and sue the same person over the same matter.  Courts and lawyers would say your second attempt is barred by the doctrine of res judicata – a thing decided.

If you and the other parent agree or the court orders a certain custody arrangement and things change – you can sue or be sued by the same person for the same matter.  The law recognizes that the thing, your wonderful child or children, can grow and change.   The key is a material change in circumstances of the child or one or both parents.  If there has been such a change the court can look at the new circumstances and decide what is best for the child now.  If there has not – the suit is one for the same thing that the court already decided and it is barred – res judicata. 

How do you know whether a change in circumstances is material?  Sometimes it is obvious but in close cases you won’t know until the judge decides.

 

by James J. Gross

A study at the University of Washington found that divorce filings peaked in March and August.

Trying to explain this phenomenon, Associate Professor Julie Brines said these months follow winter and summer family holidays.  Troubled couples may believe they can fix their relationships with a happy holiday or vacation, but in reality these times can bring even more stress and disappointment to the participants.

Couples with children may want to start a divorce before the new school year starts.

I was listening to the gang at The Kane Show on the radio as I drove to work. They were talking about a Mother-in-Law Prenup. A Mother-in-Law Prenup is an agreement signed before marriage to ensure grandparent visitation rights if one of the spouses dies or divorces.

You could also have a post-nuptial agreement, and it could be a Father-in-Law agreement. Or you could have a Grandparent’s Agreement even if the parents are not married.

While the parties may abide by the agreement, it may be unenforceable if they do not. The courts have the power to decide what visitation is in the best interests of the child. And the US Supreme Court decided in Troxel v. Granville, 530 U.S. 57 (2000), that a parent’s visitation schedule is presumptuously better for the child than a grandparent’s visitation schedule.

The grandparents can overcome the presumption but it’s not easy to do. On the other hand, the parent will have to be prepared to explain why they thought the grandparent visitation schedule was in the child’s best interest when they signed the agreement and why they do not think so now.

The cases where the children refuse to visit a parent are among the most frustrating for parents, divorce lawyers, judges and therapists.

I’ve seen judges order months of reconciliation therapy. I’ve had one judge tell me, “I can’t send a crane to pickup the child and one house and drop them off at the other house.” Another judge said “A 15 year old can go almost anywhere they want on their own. A 15 year old can go to the bus station and buy a ticket.” None of these solutions are usually very satisfying to either parent.

Now one judge in Michigan has come up with a different idea. She is holding the children, ages 9, 10 and 15, in contempt for refusing to have lunch with their father and putting them in a juvenile detention center until they change their mind. The mother’s attorney has filed a writ of habeas corpus to free the children which is scheduled for July 15, 2015.

Read more about this case.

“How much will my custody case cost?” is a question I hear over and over.  I don’t know is the answer.  If things go well, if both parents and attorneys are reasonable, and you are lucky, the cost may be below my initial retainer of $5,000 and you will get a refund. If you get into litigation, your fees could be two or three times that, or even more.  The sky really is the limit.

Witness the Toronto case known as M. and F.  The mother alleged that the father was not entited to overnight visits with their six year old son because he had been violent toward her.  That made him, according to the mother, unsafe to be alone with the child. The mother owns a successful insurance brokerage.  The father is a lawyer.

The trial lasted 34 days. Then the case went to the Ontario Court of Appeal.  In the end, the father won.  The court ordered the mother to pay $540,000 of the father’s legal fees.  The total amount of legal fees spent by the two parents was over two million dollars.

He will have to learn, I know,
that all men are not just,
all men are not true.
But teach him also that

for every scoundrel there is a hero;
that for every selfish Politician,

there is a dedicated leader…
Teach him for every enemy there is a

friend,

Steer him away from envy,
if you can,
teach him the secret of
quiet laughter.

Let him learn early that
the bullies are the easiest to lick… Teach him, if you can,
the wonder of books…
But also give him quiet time
to ponder the eternal mystery of birds in the sky,
bees in the sun,
and the flowers on a green hillside.

In the school teach him
it is far honourable to fail
than to cheat…
Teach him to have faith
in his own ideas,
even if everyone tells him
they are wrong…
Teach him to be gentle
with gentle people,
and tough with the tough.

Try to give my son
the strength not to follow the crowd
when everyone is getting on the band wagon…
Teach him to listen to all men…
but teach him also to filter
all he hears on a screen of truth,
and take only the good
that comes through.

Teach him if you can,
how to laugh when he is sad…
Teach him there is no shame in tears,

Teach him to scoff at cynics
and to beware of too much sweetness…
Teach him to sell his brawn
and brain to the highest bidders
but never to put a price-tag
on his heart and soul.

Teach him to close his ears
to a howling mob
and to stand and fight
if he thinks he’s right.
Treat him gently,
but do not cuddle him,
because only the test
of fire makes fine steel.

Let him have the courage
to be impatient…
let him have the patience to be brave.
Teach him always
to have sublime faith in himself,
because then he will have
sublime faith in mankind.

This is a big order,
but see what you can do…
He is such a fine fellow,
my son!

— Hat tip to David Goldberg, Maryland Family Law Mediator, for bringing this to our attention.


Rafi Meitiv, age 10, and his sister Dvora, age 6, were walking along Georgia Avenue in Silver Spring when a passerby spotted them and called the police. A police officer asked the children what they were doing, to which Rafi replied, walking home from the park. The officer then went to the Meitivs’ house to talk with the parents, Alexander and Danielle Meitiv, who were amazed that their efforts to give their children independence has landed them in legal trouble.

In February, 2015, Child Protective Services said the parents committed “unsubstantiated neglect” of their two children,  This means that this agency will keep a file on the family for at least five years, which could leave the Meitivs vulnerable to prosecution if they let their children, walk home unattended again

The couple intend to appeal the finding, and say they will continue to allow their children to play or walk together without adult supervision.  “We don’t feel it was appropriate for an investigation to start, much less conclude that we are responsible for some form of child neglect,” Danielle Meitiv said.  The couple practice what is known as “free-range parenting”, which is a belief that kids should be given the tools and confidence to safely navigate their neighborhood without their parents.

Maryland law prohibits children under the age of eight from being left unattended in a dwelling or car, but makes no reference to the outdoors. Maryland law also allows children from the age of 13 to supervise other children. This may be the case that forces Maryland Courts to clarify the law in this area.  It raises the question of what age should children be considered old enough to be on their own in public.  Also when should authorities step in to trump the rights of parents to decide this question for their children and otherwise decide how to raise their children.