Custody and Visitation Review April 8, 2003

Custody and Visitation Review 1)Parent vs. Parent Custody Standard Majority: Best Interests of Child (multifactor, discretionary standard) 2)Parent vs. Parent Visitation Standard Majority: Best Interests but presumption that visitation with non-custodial parent in best interests of children 3)Parent vs. Third Party Custody Standard Majority: Presumption in favor of parent unless parent unfit or other extraordinary circumstances

Parent vs. Third Party Visitation Standard Examples: Washington State: “[any] person may petition the court for visitation rights at any time,” and the court may grant such visitation rights whenever “visitation may serve the best interest of the child.” Maryland: An equity court may: (1) consider a petition for reasonable visitation of a grandchild by a grandparent; and (2) if the court finds it to be in the best interests of the child, grant visitation rights to the grandparents.

4)Parent vs. Third Party Visitation after Troxel v. Granville? Best Interest Not Enough to Overturn Parent’s Decision/Standard Applied by Court Must Include Something Else: Special Weight to Parent’s Decision Unreasonable Denial of Visitation by Parent(s) Finding that Parent is Unfit Finding that Parent’s Decision Harms Child(ren)

3 rd Party Visitation Standard That Would Pass Constitutional Muster Under Troxel: Fit Parents’ Decisions About Circumstances Under Which Child(ren) Should Visit With 3 rd Parties Should Prevail: 1)Absent unreasonable denial of visitation? or 2)Unless actual or potential harm to child? or 3)Unless parent-like relationship with 3 rd party seeking visitation?

Alternative Dispute Resolution and Custody

ADR: Resolving Conflicts Without Resort to Litigation Negotiation: Two parties (usually through lawyers) seek to reach a settlement Arbitration: Neutral Third Party resolves dispute by rendering a decision after hearing from both sides Mediation: Neutral Third Party assists two or more disputing parties to reach a mutually agreeable settlement of dispute

Mediation and Child Access Most states (including MD) now require parties to attempt to mediate child access disputes before resort to litigation See e.g. Md. Rule 9-205: requires parties to custody or visitation dispute to participate in up to two mediation sessions

Types of Mediation Problem Solving Transformative Evaluative

Lawyers as Mediators Ethical Issues: Conflicts; Confidentiality; Non-Attorney “Practice of Law”; Mediation and Domestic Violence Training: Varies from jurisdiction to jurisdiction MD: -Need not be lawyer -40 hours of general mediation training plus 20 hours specialized training if child access mediation See: Title 17, Md. Rules Vol. 2 Practice Opportunities - Mixing mediation with traditional law practice - Building a mediation practice