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Kids have Holes in their Souls in the Shape of their Dads

Constance Camus — Mon, 16 Nov 2009 22:06:40 +0000

Knock, Knock: Step Up Fathers, Your Children Need You

Daniel Beaty, at a Def Jam Poetry reading, is the powerful orator and poet that delivers a universal and timeless message to all men, black, white and blended. Take it, Daniel…

Here are but a few of the comments made on Youtube:

"We are the children of our parents, but, we do not have to live the legacy of our parent's choices."

"He's telling us that he retains the best qualities of his father but he doesn't need to be the same man, and so he won't end up in jail and wants others to gain from his experience and do the same."

"I'm going to show this to my kids. I'll tell them this is the kind of man they need to be; this is the kind of man they need to look for. This is why God invented poetry."

"Absolutely wonderful message of hope. I was moved to tears by his powerful and passionate poem! Fantastic message!!! God bless you, Daniel Beaty. You are going to be one hell of a father… your kids will be blessed!"

"One of my top three favorite poems. I have grown up without a dad and have heard poem after poem about the same situation and it seems that, more often than not, the poet plays the victim. We musn't play victims. This is powerful and uplifting, while still maintaining that undertone of loss and sadness. It is brilliant, he is brilliant. WE are brilliant, no matter our laundry lists of faults and short-comings."

"Oh, my Children, you have made an old activist swell with pride."

"Talk to a Lady, Walk like a Man.'' Fatherless boys, all to common these days. Knock Knock!!"

Credits: The title to this blog is a quote by Roland Warren, President of the National Fatherhood Initiative.

What Rights do Grandparents have to Visitation in Maryland?

Constance Camus — Tue, 24 Mar 2009 00:24:04 +0000

Grandparent Visitation Rights in Maryland

FAMILY LAW – GRANDPARENTAL VISITATION STATUTE – STATUTE INTERPRETED TO CONTAIN REBUTTABLE PRESUMPTION FAVORING PARENTAL DECISION AS IN CHILD’S BEST INTERESTS

FAMILY LAW – GRANDPARENTAL VISITATION STATUTE – STATUTE INTERPRETED TO REQUIRE THRESHOLD FINDING OF PARENTAL UNFITNESS OR EXCEPTIONAL CIRCUMSTANCES TO TRIGGER BEST INTERESTS INQUIRY

Facts: Glen and Andrea Koshko are the custodial parents of three minor children, Kaelyn, Haley, and Aiden. The couple met and began dating after then-Andrea Haining moved back into her parents’, John and Maureen Hainings’, home in Middletown, New Jersey. Andrea purportedly had left the Hainings’ residence initially to escape the acrimonious environment there, but returned from Florida after a former boyfriend abandoned her when she became pregnant. On 26 September 1994, Andrea gave birth to Kaelyn, who was raised in her grandparents’ home for the first three years of her life. During this time, the Hainings were very involved in Kaelyn’s upbringing. In September 1997, Andrea and Kaelyn moved out of the Hainings’ residence to live with Glen in nearby Point Pleasant, New Jersey. Despite the move, Maureen Haining maintained a close relationship with Kaelyn and visited her often. Eventually, Glen and Andrea became affianced and, contrary to the plans and wishes of the Hainings, eloped in 1998. In June 1999, the newlywed couple and Kaelyn moved to Baltimore County in connection with Glen’s employment. At the time of the move, Kaelyn was nearly five years old. The family has remained in Baltimore County. The couple’s two other children, Haley and Aiden, were born in Maryland on 21 August 1999 and 19 December 2002, respectively.

From the time the Koshkos moved to Maryland until October 2003, the Koshkos and Hainings maintained a regular visitation regimen. The families essentially took turns traveling to one another’s homes once every month. In between visits the grandparents and grandchildren maintained a relationship via correspondence. This visitation regimen abruptly ceased in October 2003 when the adults of the two families became embroiled in a bitter argument over Glen’s approach to his terminally-ill mother’s deteriorating condition. The Hainings perceived Glen to be nonchalant in this regard. Apparently disturbed by the Hainings’ criticism, Glen Koshko asserted that he would no longer permit the Hainings to visit their grandchildren. Despite the Hainings’ repeated attempts over several months to reconcile their dispute with the Koshkos and reestablish visitation, the Koshkos remained largely incommunicado. The Hainings retained an attorney in an effort to facilitate some discussion, which was answered by the Koshkos’ proposal to allow a single visit and the possibility of future visitation. The Hainings refused, declining to accept anything less than a commitment to regular visitation with the grandchildren.

On 19 April 2004 the Hainings filed in the Circuit Court for Baltimore County a grandparent visitation petition pursuant to the Maryland Grandparental Visitation Statute (GVS). The trial court entered an order granting the Hainings’ petition, finding that visitation was in the best interests of the grandchildren. In addition to establishing a rolling schedule of four-hour visits every 45 days and quarterly overnight visits, the trial court directed that the Koshkos and Hainings attend at least four joint, professional counseling sessions to discuss issues relating to the visitation. After an unsuccessful bid for a new trial, the Koshkos appealed the judgment of the Circuit Court.

The Court of Special Appeals affirmed the judgment, holding that the GVS was neither facially unconstitutional nor unconstitutional as applied to the Koshkos as claimed. Koshko v. Haining, 168 Md. App. 556, 897 A.2d 866 (2006). The intermediate appellate court rejected the argument that the GVS violated the Koshkos’ fundamental right to parent, as articulated in Troxel v. Granville, 530 U.S. 57 (2000) (plurality), simply because it failed to contain an express rebuttable presumption that parental decisions are in the best interests of children. Under the principle of constitutional avoidance, the court interpreted the GVS to contain such a presumption. The Court of Special Appeals then disagreed with the Koshkos’ position that there must be a threshold finding of either parental unfitness or exceptional circumstances as a predicate to the statutorily-imposed best interests of the child inquiry. Finally, the court affirmed the visitation award upon a finding that the grandparents had rebutted successfully the presumption in favor of the Koshkos’ decision to terminate visitation. The Koshkos petitioned the Court of Appeals, which granted the petition and issued a writ of certiorari to consider the Koshkos’ substantive due process challenge to the GVS.

Held: The GVS, codified at Maryland Code (1984, 2004 Repl. Vol.), Family Law Article § 9-102, permits a Maryland court to grant grandparents reasonable visitation with their grandchildren upon a finding that to do so was in the children’s best interests. The express terms of the statute, however, do not prescribe that courts apply a presumption in favor of parental decisions relating to third party visitation with their children. The U.S. Supreme Court held in Troxel that substantive due process principles require that court determinations of third party visitation cases under the best interest of the child standard must be informed by a parental presumption. Maryland law also contained a long-settled presumption that parental decisions are in a child’s best interests. Rather than invalidate the Maryland statute on its face, the Court of Appeals, under the principle of constitutional avoidance, interpreted the GVS to contain the presumption, as had the Court of Special Appeals.

The Court, however, concluded, under strict scrutiny analysis, that the GVS was unconstitutionally applied to the Koshkos because the statute lacked sufficiently narrow tailoring to the State’s interest in children’s welfare vis-a-vis the children’s beneficent exposure to grandparents. Strict scrutiny was triggered because the statute implicated the Koshkos’ fundamental right to parent. Specifically, the GVS imposed a “direct and substantial” interference with the Koshkos’ decision regarding visitation by interjecting the State and third parties, without a claim to a constitutional right to visitation, into the custodial parents’ decision-making process. This process is generally left to the discretion of fit parents, who are presumed to act in the best interests of their children. The Court found this direct interference also to be substantial in nature. Although visitation matters may prove to be less weighty an intrusion upon the parental presumption than custody and adoption matters in the non-constitutional realm, for purposes of substantive due process analysis, third party visitation disputes impede just as substantially upon the fundamental right to parent as do custody and adoption disputes. In order to remedy this lack of narrow tailoring in the statute, the Court again employed the principle of constitutional avoidance and applied the GVS with a judicial gloss. This gloss requires a threshold finding of parental unfitness or exceptional circumstances demonstrating the detriment that has or will be imposed on the children absent visitation by their grandparents before the best interests analysis may be engaged. This parental unfitness/exceptional circumstances test was an extension of a third party custody case, McDermott v. Dougherty, 385 Md. 320, 869 A.2d 751 (2005). The Court reasoned that custody and visitation matters generally have been decided under the same standards and that the fundamental right to parent is equally at risk from undue state interference in the context of both custody and visitation determinations. Accordingly, the parental unfitness/exceptional circumstances safeguard imposed in third party custody determinations appropriately should be applied in third party visitation matters as well. The Court thus overruled its precedent in Fairbanks v. McCarter, 330 Md. 39, 622 A.2d 121 (1993), and progeny, that held such threshold findings unnecessary in third party visitation cases. The Court remanded the case for application of the new threshold requirement.

Glen Koshko, et ux. v. John Haining, et ux., 398 Md. 404 (2007). Opinion by Harrell, J.

It’s All About The Children’s Best Interest – Not The Parents

Constance Camus — Sun, 08 Mar 2009 09:55:22 +0000

LITIGATING CHILD CUSTODY IN MARYLAND

A court, in order to determine custody, must first determine the best interest of the child. The Maryland Court of Appeals has stated that “[W]hen the custody of children is the question … the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that.” Kartman v. Kartman, 163 Md. 19, 22,161 A. 269 (1932). The absolute obligation on the trial judge to undertake a thorough examination of all possible factors before determining child custody was forcefully set out by Judge McAuliffe in Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964 (1986):

Formula or computer solutions in child custody matters are impossible because of the unique character of each case, and the subjective nature of the evaluations and decisions that must be made. At best we can discuss the major factors that should be considered in determining whether joint custody is appropriate, but in doing so we recognize that none has talismanic qualities, and that no single list of criteria will satisfy the demands of every case. We emphasize that in any child custody case, the paramount concern is the best interest of the child. …The best interest of the child is therefore not considered as one of many factors, but as the objective to which virtually all other factors speak.

The Taylor Court detailed the two basic forms of custody. These two forms are:

Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare. Joint legal custody means that both parents have an equal voice in making those decisions, and neither parent’s rights are superior to the other.

Physical custody, on the other hand, means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody.

Each type of custody can be broken down into either joint or sole. Therefore, joint legal custody means that each parent has the right to share in longer-range decision-making including education, religious training, medical care and other matters of significance regarding their children. Sole legal custody gives that right to only one parent. Joint physical custody means that the child or children share their time between the parents. There does not have to be an equal sharing of time in order to qualify as joint physical custody.

Taylor laid out fourteen factors for a court to consider in an award of joint custody:

Capacity of the parents to communicate and to reach share decisions affecting the child’s welfare;
Willingness of parents to share custody;
Fitness of parents;
Relationship established between the child and each parent;
Preference of the child;
Potential disruption of child’s social and school life;
Geographic proximity of parental homes;
Demands of Parental Employment;
Age and number of children;
Sincerity of parents’ request;
Financial status of the parents;
Impact on state or federal assistance;
Benefit to parents; and;
Other factors.

Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964 (1986).

In Montgomery County v. Sanders, 38 Md. App. 406, 419, 381 A.2d 1154 (1977), Chief Judge Gilbert described what a child custody determination unavoidably calls for on the part of the judge:

Present methods for determining a child’s best interest are time-consuming; involve a multitude of intangible factors that ofttimes are ambiguous. The best interest standard is an amorphous notion, varying with each individual case, and resulting in its being open to attack as little more than judicial prognostication. The fact finder is called upon to evaluate the child’s life chances in each of the homes competing for custody and then to predict with whom the child will be better off in the future.

Judge Gilbert went on to catalogue some of the myriad factors that must be considered:

“What critics of the “judicial prognostication” overlook is that the court examines numerous factors and weighs the advantages and disadvantages of the alternative environments. The criteria for judicial determination includes, but is not limited to:

Fitness of the parents;
Character and reputation of the parties;
Desire of the natural parents and agreements between the parties;
Potentiality of maintaining natural family relations;
Preference of the child;
Material opportunities affecting the future life of the child;
Age, health and sex of the child;
Residences of parents and opportunity for visitation;
Length of separation from the natural parents, and;
Prior voluntary abandonment or surrender.

Montgomery County v. Sanders, 38 Md. App. 406, 420, 381 A.2d 1154 (1977).

Child custody cases require an experienced local family law lawyer. Family law lawyers concentrate their practices solely in family law and are experienced in successfully presenting the proper evidence to the Judge. Thus, when deciding upon proper representation in litigating the custody of your child (or of your children), it is also incumbent upon you, as a parent, to consider what is in their “best interest.” This is not a time to cut corners.