In the recent Court of Appeals’ decision in Fox v. Wills, 390 Md. 620, 890 A.2d 726 (2006), the Court held that attorneys for minor children are not entitled to any kind of immunity from malpractice actions. As a result, countless Guardian ad litem attorneys began filing requests to terminate their appointment, leaving Courts without qualified attorneys to fill this important role.

The Court of Appeals’ decision reversed the opinion of the Court of Special Appeals, Fox v. Wills, 151 Md. App. 31, 822 A.2d 1289 (2003), which held that an attorney for minor children does not function “strictly as legal counsel to a child client,” but acts principally as an arm of the Court, and is “performing judicial functions.” Therefore, the attorney had “at least qualified immunity.” Fox v. Wills, 151 Md. App. at 40, 42, 44.

The Court of Appeals noted that, unlike other states, there was no Maryland statute that specifically authorizes the appointment of a “Guardian ad litem,” nor was there a statute that supports the conclusion that an attorney for a minor acts as an arm of the Court. Fox v. Wills, 390 Md. at 633. At the time of the Court’s decision, the Maryland statute under which Guardian ad litem’s were being appointed was Section 1-202 of the Family Law Article:

§1-202. Appointment of attorney for minor; fees

In an action in which custody, visitation rights, or the amount of support for a minor child is contested, the court may:

appoint to represent the minor child counsel who may not represent any party to the action; and

impose against either or both parents counsel fees.

Under this statute, the Court would appoint “Guardian ad litem’s” to represent the child’s best interests or act as the child’s advocate; however, the statute did not define these roles. This statute also did not provide for a duty to the Court or any duty other than to the minor. Thus, “an attorney appointed pursuant to §1-202 of the Family Law Article is not entitled to any type of immunity from a malpractice suit.” Fox v. Wills, 390 Md. at 624.

Following this decision, House Bill 700 was introduced by Delegates Kathleen Dumais and Michael Smigiel. Keith Schiszik, a family law attorney and frequent lecturer in training Guardian ad litem’s, testified on behalf of the American Academy of Matrimonial Lawyers. Soon after the Fox decision was rendered, Mr. Schiszik received numerous calls from attorneys who were receiving threats from their child clients that “if you don’t do what I want you to do, I will sue you.” The children were being informed about the Fox decision by parents attempting to use the child to gain leverage in the custody case.

The initial Bill provided for qualified immunity for attorneys of minor children. However, the House Judiciary Committee would not endorse any kind of immunity for lawyers. The Bill was therefore revised to exclude any immunity and simply enable the appointment of specific attorneys for minor children.

Effective as of June 1, 2006, §1-202 of the Family Law Article was repealed and reenacted as follows:

§1-202. Appointment of attorney for minor; fees

(A) In an action in which custody, visitation rights, or the amount of support of a minor child is contested, the court may:

(I) appoint a lawyer who shall serve as a child advocate attorney to represent the minor child and who may not represent any party to the action; or

(II) appoint a lawyer who shall serve as a best interest attorney to represent the minor child and who may not represent any party to the action; and

impose against either or both parents fees.

(B) A lawyer appointed under this section shall exercise ordinary care and diligence in the representation of a minor child.

Nothing has been changed by the new law with respect to a lawyer’s duties. The added provision in the statute that requires the exercise of “ordinary care and diligence” applies to all lawyers with all clients. The language was included to preclude the argument that any immunity is afforded by the new law.

Under the new law, there are now three (3) types of attorneys for minor children – Best Interest, Nagle v. Hooks and Child Advocate. A Best Interest Attorney is charged with helping the Court determine what is in the child’s best interests. The Nagle v. Hooks attorney is charged with determining whether or not to waive a child’s psychological or psychiatric privilege. A Child Advocate attorney is charged with advocating the desires of the minor child, regardless of what may be in the child’s best interests.

The Court’s sample Order for appointing a Best Interest Attorney appears at the end of this article. FN1. Note that the sample Order states that the “overriding obligation of the Best Interest Attorney shall be to assist the Court in determining the best interest of the child(ren).” If an attorney is required to “assist the Court,” then the attorney has a “duty to the Court.” If an attorney has a duty to the Court, then the attorney may be viewed as “an arm of the Court” – the rationale for qualified immunity by the Court of Special Appeals in Fox, supra.

In addition, the Maryland Rules Committee has established Guideline requirements for attorneys representing minor children – a virtual laundry list of actions an attorney “may” take and educational requirements the attorney should hold. These Guidelines are awaiting review by the Court of Appeals. Once Guidelines are approved, there should be an added layer of protection against unwarranted malpractice suits. That is, if a lawyer has complied with the Guidelines, a malpractice action will be more difficult to maintain.

In sum, there is never going to be unqualified immunity for lawyers who act recklessly in their representation of a minor child. However, for those lawyers who wish to continue their invaluable service of representing minor children without the looming threat of suits from multiple parties for up to three (3) years after the child reaches the age of eighteen (18), there may be some protections afforded in the wording of the Order for appointment and/or the Guidelines being reviewed by the Court of Appeals.

FN1: Sample Best Interest Attorney Order

ORDER
(Best Interest Attorney)

UPON CONSIDERATION of the Plaintiff/Defendant’s Motion for Appointment of Best Interest Attorney and the Defendant/Plaintiff’s Opposition thereto, and good cause having been shown, it is this _____ day of ______________, 20__, by the Circuit Court for Montgomery County, Maryland

ORDERED, that _____________, Esquire, ______________, (301) _________, be and the same is hereby appointed as Best Interest Attorney for ____________, born __________, minor child(ren), to represent the best interests of said child(ren) in the above-captioned case in all matters relating to custody and visitation; such representation shall include consideration of the waiver (or not) of the psychiatric/psychologist privilege for the aforesaid minor child(ren), and may include requests for counseling and psychiatric evaluation; and it is further

ORDERED, that the Best Interest Attorney shall present the child(ren)’s needs and wishes in whatever manner the Court deems appropriate, but the overriding obligation of the Best Interest Attorney shall be to assist the Court in determining the best interest of the child(ren); and it is further

ORDERED, that the Best Interest Attorney shall do the following, if he or she deems appropriate:

Meet with and interview the child(ren), and advise the child(ren) of the scope of the representation.

Investigate the relative abilities of the parties in their roles as parents or custodians.
Visit the child(ren) in each home.

Conduct individual interviews with parents, other parties, and collateral witnesses.

Observe the child(ren)’s interactions with each parent and each other party, individually.

Review educational, medical, dental, psychiatric, psychological, or other records.

Interview school personnel, childcare providers, healthcare providers, and mental health professionals involved with the child(ren) or family.

File and respond to pleadings and motions.

Participate in discovery.

Participate in settlement negotiations.

Participate in the trial, including calling witnesses and presenting evidence and argument, as appropriate.

If the child(ren) is/are to meet with the judge or master to testify, prepare the child(ren), familiarizing the child(ren) with the places, people, procedures, and questioning the child(ren) will be exposed to; and seek to minimize any harm to the child(ren) from the process.

When the representation ends, the lawyer should inform the child(ren) in a developmentally appropriate manner.

HOWEVER, THE BEST INTEREST ATTORNEY SHALL NOT TESTIFY AT TRIAL OR FILE A WRITTEN REPORT WITH THE COURT.

And it is further, ORDERED, that the Plaintiff/Defendant shall advance to his/her attorney the sum of $ ____________ to be placed in the Registry of the Court within thirty (30) days, subject to further Order of Court as to payment of the aforesaid appointed attorney’s fees; and it is further

ORDERED, that this appointment, unless otherwise ordered by the Court, shall terminate after thirty (30) days from entry of a final Custody Order.

____________________________________
JUDGE, Circuit Court for Montgomery 
County, Maryland

Koshko v. Haining, No. 35, Sept. Term 2006, 2007 Md. Lexis 10

Section of Family & Juvenile Law Newsletter, May 2007

On January 12, 2007, the Court of Appeals essentially eliminated the grandparent visitation rights that have existed for twenty (20) years in Maryland (thankfully, after my grandparent visitation trial on January 2, 2007). In 1984, the Maryland Grandparent Visitation Statute, Family Law Article, § 9-102, was enacted to afford grandparents “reasonable” visitation when it serves the grandchildren’s “best interests.” Fairbanks v. McCarter, 330 Md. 39, 662 A.2d 121 (1993), set forth six (6) factors to determine whether grandparent visitation is in the grandchildren’s best interests. The United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 Ct. 2054 (2000), subsequently established a rebuttable presumption that parental decisions regarding grandparent visitation are in the children’s best interest (e.g. before the Fairbanks factors can be considered).

The Maryland Court of Special Appeals in Koshko v. Haining, 168 Md. App. 556, 897 A.2d 866 (2006) (“Koshko I”), upheld the trial court’s grant of grandparent visitation and held that the Maryland Grandparent Visitation Statute is to be interpreted to contain the Troxel rebuttable presumption. Grandparents were regularly awarded reasonable visitation until the Court of Appeals reversed Koshko I and overturned the Fairbanks line of cases.

Koshko v. Haining, No. 35, Sept. Term 2006, 2007 Md. Lexis 10

ISSUES ON APPEAL:

Is the Maryland Grandparent Visitation Statute facially unconstitutional for failing to include a presumption that parental decisions regarding their children are in the children’s best interests?

Was the Maryland Grandparent Visitation Statute unconstitutionally applied to the Koshkos absence a threshold finding of parental unfitness or exceptional circumstances?

HOLDINGS:

NO. The Maryland Grandparent Visitation Statute may be supplemented by judicial interpretation with an inferred presumption that parental decisions regarding their children are in the children’s best interests, under the canon of constitutional avoidance. Therefore, under Troxel’s interpretation of the due process safeguards that must accompany a grandparent visitation statute, the Maryland Grandparent Visitation Statute is construed to include the application of the parental presumption.

YES. Under strict scrutiny analysis, the Grandparent Visitation Statute was unconstitutionally applied to the Koshko’s fundamental right to parent. The Grandparent Visitation Statute imposed a “direct and substantial” interference with the Koshko’s decisions regarding visitation, which decisions are presumed to be in the children’s best interests. The Court held that although there may be a difference in the degree of intrusion, visitation, like custody, intrudes upon the fundamental right of parents to care for their children. Therefore, the requirement to establish parental unfitness or exceptional circumstances in third-party custody cases must apply in third-party visitation cases, despite the lesser degree of intrusion on parental rights. In order to remedy the lack of narrow tailoring for the intrusion on parental rights, the Court again applied the canon of constitutional avoidance by holding that the Grandparent Visitation Statute is construed to require a threshold finding of parental unfitness or exceptional circumstances as a prerequisite to the application of a best interest analysis.

The Court of Appeals reversed Koshko I and overturned five (5) cases to the extent they are inconsistent with the holding: Fairbanks, supra, Maner v. Stephenson, 342 Md. 461, 677 A.2d 560 (1996), Beckman v. Boggs, 337 Md. 688, 655 A.2d 901 (1995), Herrick v. Wain, 154 Md. App. 222, 838 A.2d 1263 (2003), and Wolinski v. Browneller, 115 Md. App. 285, 693 A.2d 30 (1997). The case was remanded to the Baltimore County trial court for further proceedings to apply the unfitness/exceptional circumstances threshold requirement.

BACKGROUND/PROCEDURAL POSTURE:

Maternal grandparents, John and Maureen Haining, sued for visitation with their three (3) grandchildren, Kaelyn, Haley, and Aiden, children of their daughter and son-in-law, Andrea and Glen Koshko. Kaelyn was raised with her mother in the grandparents’ home in New Jersey for the first three (3) years of her life. The grandparents were active participants in Kaelyn’s upbringing.

Andrea and Kaelyn moved out of the grandparents’ home in September of 1997, and Andrea married Glen Koshko in 1998. In 1999, the Koshkos moved to Baltimore County and had two (2) more children. Despite the distance between the parties, the grandparents maintained a very close relationship with the grandchildren, with monthly visits and regular communications. In October of 2003, the grandparents’ visitation suddenly ended after a bitter fight between the grandparents and Glen Koshko over Glen’s treatment of his terminally-ill mother. When the grandparents’ efforts to reconcile with the Koshkos and reestablish visitation with the grandchildren failed, in April of 2004, the grandparents filed suit in the Circuit Court for Baltimore County.

The trial court awarded the grandparents visitation, finding it to be in the grandchildren’s best interests, establishing a schedule of four-hour visits every forty-five (45) days and quarterly overnight visits, plus counseling for the parties. The Koshkos lost their Motion for New Trial and appealed. The Court of Special Appeals affirmed the trial court’s visitation award, finding that the Grandparent Visitation Statute was neither facially unconstitutional nor as applied to the Koshkos. 

The Court of Special Appeals relied on the principle of constitutional avoidance and held that the Grandparent Visitation Statute implicitly contains the presumption that parents act in the best interest of this children, pursuant to Troxel, supra. The Court found that the grandparents had successfully rebutted the presumption in favor of the parents’ decision to terminate visitation, based on evidence about the strong bond between the children and their grandparents and evidence that the parents had ceased the grandparent relationship because of a family fight unrelated to the children’s best interests.

The Court of Special Appeals disagreed with the Koshkos’ argument that there must be a threshold finding of parental “unfitness” or “exceptional circumstances” in order to consider grandparent visitation – the standard applicable in third party custody cases under McDermott v. Dougherty, 385 Md. 320, 869 A.2d 751 (2005).

The Koshkos petitioned the Court of Appeals, which granted writ of certiorari to consider the parents’ substantive due process challenge to the Grandparent Visitation Statute.

Practice Considerations:

For those who are wondering “what happens to my cases now?” See Footnote 23:
In affected cases pending at the time this opinion is filed, where appropriate, courts may allow amendments to pleadings or the presentation of additional evidence in light of the holdings announced here. In cases filed after this opinion, the petitioners, in order to avert or overcome a motion to dismiss their petition, must allege a sufficient factual predicate in the petition so as to present a prima facie case of unfitness or exceptional circumstances, as well as invoking the best interest standard….[citations omitted]. At any evidentiary hearing on a petition, the petitioners must produce evidence to establish their prima facie case on the issue of either parental unfitness or exceptional circumstances as well as evidence sufficient to tip the scales of the best interests balancing test in their favor. We appreciate that there may be circumstances where evidence proffered for the satisfaction of a threshold element also may have relevance in the determination of the best interest standard. We do not intend to foster a “trial within a trial.” At the end of the day, petitioners, in order to be successful, must shoulder the burdens to adduce at least a prima facie case on both the unfitness/exceptional circumstances standard and the best interests standard.

Therefore, all cases resolved before this case are not affected by the new law. For new cases, if you represent parents, a Motion to Dismiss for failure to state a claim is your first line of defense. If you represent grandparents, consider seeking custody rather than visitation given that the same standard applies. And for those who disagree with the Court of Appeals, lobby your legislative representatives to amend the Maryland Grandparent Visitation Statute to eliminate the threshold requirement, while maintaining the Troxel presumption and Fairbanks factors.

In 1984, the Maryland Legislature recognized the importance of grandparent visitation and enacted a Grandparent Visitation Statute to afford grandparents reasonable visitation in the best interests of the children. For more than twenty (20) years, Maryland Courts have afforded grandparents reasonable visitation with their grandchildren when it serves the grandchildren’s best interests, recognizing the unique benefits grandparents can give to a child.

On January 12, 2007, the Court of Appeals of Maryland in Koshko v. Koshko, overruled its own prior decisions and essentially eliminated the grandparents’ rights that have existed for more than twenty (20) years. The Court imposed a threshold requirement requiring grandparents to prove parental “unfitness” or “exceptional circumstances” before the Court can consider grandparent visitation. This threshold requirement was previously applicable only in third party custody cases to limit the court from taking custody of a child away from a parent except in extreme cases. Now, grandparent visitation will only be awarded in extreme cases. 

The Court’s rationale for applying the same standard for grandparent visitation and custody cases is that:

Although there may be a difference in the degree of intrusion, it is not a difference of constitutional magnitude. Visitation, like custody, intrudes upon the fundamental right of parents to direct the ‘care, custody and control’ of their children.

In other words, the Court believes that “any” intrusion on a fit or unfit parent’s rights to raise their child must be treated equally, regardless of what is in a child’s best interest.

By this decision, the Court has put parent’s rights first and children’s best interests second, despite the fact that the “best interest” standard has guided the Court for decades in the protection of minor children. Now a grandparent must first prove a parent is “unfit” to have custody of their child or that there are “exceptional circumstances.

“Unfitness” may be found in cases of parental abuse, neglect, drug use or incarceration or other extreme actions by the parents that render the parent unfit to care for the child. “Exceptional circumstances” requires a showing of actual harm to a child, as opposed to showing the benefits afforded by grandparent visitation under a “best interest” standard

Therefore, it is possible that if a grandparent proves a parent is “unfit,” the Court will maintain custody of the child with their “unfit” parent and consider some grandparent visitation, typically once per month – a remedy that will not protect the grandchild from their “unfit” parent. And, generally, grandparents do not seek custody of their grandchildren.

Prior to the decision in Koshko, Maryland and the United States Supreme Court held that, while there was a presumption that the parent’s decision about visitation should control, that presumption was rebuttable if the grandparents could show the decision was not in the best interest of the grandchild. Based on that standard, grandparents were often successful in getting awards of visitation from Maryland Courts. Now, under Koshko, grandparents must first show unfit/exceptional circumstances before the Court applies the rebuttable presumption.

For those grandparents who are denied visitation with their grandchildren and are considering seeking legal relief, the likelihood of their success is slim and will no longer rest on what is in their grandchildren’s best interests. Children’s best interests are now secondary to what a fit or unfit parent desires for the child.

The only hope for the rights of grandparents and grandchildren is if the Maryland Legislature decides to modify the Maryland Grandparent Visitation Statute in light of Koshko. In doing so, the Legislature could accept the rebuttable presumption in favor of the parents held under prior law while declining the extreme threshold requirement of unfitness/exceptional circumstances under Koshko. This way, the Legislature would protect parents’ rights without sacrificing the best interests of children.

by Donna Nicholson Ersek

In the battle to help deal with high conflict families, there is a new trend emerging – appointing mental health professionals to act as Parent Coordinators. While Courts have been appointing therapists to help assist families for years, the concept of labeling therapists as “Parent Coordinators,” and in effect creating a new kind of mental health profession, is a growing trend now present in Maryland and across the nation.

A Parent Coordinator is typically a mental health professional who is appointed by consent of the parties or by court order to work with parents to help facilitate joint decision-making regarding child-related issues after a custody order has been entered. These issues can involve visitation exchanges, holidays, medical care, extracurricular activities, education or discipline. Parent Coordinators can also help parents create or modify a parenting plan, understand the developmental needs of their children and teach problem solving strategies. The goal of a Parent Coordinator is to help parents learn how to communicate more effectively and thus avoid the conflicts which cause them to return to court. When a Parent Coordinator can reduce the need for parents to return to court, the conflict for their children is also reduced.

The concept of parent coordination dates back to the early 1990’s. In 1994, two psychologists from a high conflict study group in Colorado, Carla Garrity and Mitchell A. Baris, published a book about parent coordination called Caught in the Middle: Protecting the Children of High Conflict Divorce. Since then, there have been other studies and publications lending credence to parent coordination.

As Parent Coordinators have gained success in dealing with high conflict families, more states have begun using them in addition to other services, such as mediation, parenting seminars, custody evaluators and guardians ad litem. The difference Parent Coordinators bring to families in conflict is that they are often appointed long-term to work on problems that reappear after the litigation and other services have ceased. Since Parent Coordinators are often trained mental health therapists, they can understand the underlying emotional and personality issues that contribute to conflicts and can use their training to help deal with these issues.

There is no uniformity among states as to when and how Parent Coordinators are used. In 1999, the National Parent Coordinator Association was formed and is currently seeking to develop standards of practice and ways to encourage collaboration among Parent Coordinators. For more information about the organization, go to www.cooperativeparenting.com. 

Currently, approximately one-third of the states use Parent Coordinators. There are only four states with Parent Coordinator statutes: Idaho, Kansas, Oklahoma and Oregon. Some states have used existing statutes which allow for “mediators” or “special masters” as a basis to appoint Parent Coordinators: Arizona, California, District of Columbia, Colorado, Hawaii, Massachusetts and New Mexico. Other states appoint Parent Coordinators absent statutory authority: Florida, Georgia, Maryland, Minnesota, North Carolina, Pennsylvania, Tennessee, Texas and Vermont. 

In states without specific statutes authorizing Parent Coordinators, including Maryland, courts are nonetheless appointing Parent Coordinators and/or asking the parties to consent to the appointment. In Maryland, Frederick and Montgomery Counties are apparently the only counties currently appointing Parent Coordinators in family cases. Baltimore City uses Parent Coordinators in Juvenile cases to work with the Department of Social Services. Certain counties, such as Calvert, Garrett, Kent, Somerset and Washington counties, assign court “mediators” to work with parents during and after litigation.

In Montgomery County, the Court will appoint a Parent Coordinator for good cause upon Motion by either party or by its own initiative to assist the family in developing or, more typically, implementing the parenting plan. According to Montgomery County Circuit Court Judge Ann N. Sundt, the Court has been appointing Parent Coordinators for approximately 3 years now and there have been great successes. The Court will issue a separate Order outlining specific parameters for the Parent Coordinator, including number of sessions, goals, whether there is confidentiality with the Parent Coordinator and whether the Parent Coordinator must report back to the Court. In addition, the parents may be required to sign a contract with the Parent Coordinator regarding payment of costs, expectations and when the Parent Coordinator may be terminated and/or resign. In some cases, the Parent Coordinator may be given decision-making power to resolve the parties’ disputes. However, the Court always has the final say over custody and visitation issues.

Judge Sundt points to Kennedy v. Kennedy, 55 Md.App. 299, 462 A.2d 1208 (1983), as giving the Maryland Court the power to appoint a Parent Coordinator. Kennedy allows the Court to continue jurisdiction and to order counseling in custody cases and Judge Sundt believes that “appointing a Parent Coordinator is an extension of this power.” On the purpose of Parent Coordinators, Judge Sundt says that “the focus of a Parent Coordinator should be to teach the parents how to communicate gently and courteously and to teach them how to get what they want without enflaming the situation. The problem that arises with appointing a Parent Coordinator is when the parents cannot suspend their conflict to use the Parent Coordinator effectively.”

Parent Coordinators are not the answer in every case. However, as judges, masters and practitioners strive to help families resolve conflict and protect children, the trend towards parent coordination is a positive one, offering an alternative for dispute resolution in cases where parents cannot resolve custody and co-parenting issues by themselves.

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