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The perfect storm: Why family cases should settle out of court

Evan Koslow

Evan Koslow

If you ask anyone who knows me, including my clients, they will say I am blunt, to the point, and I may tell you things you don’t want to hear. I might also tell you things that as a parent I do not agree with, but as a family law attorney, I have unfortunately seen.

There are four main reasons why I encourage my clients to settle cases outside of court (especially in custody cases). All of them come back to the fact that court is unpredictable and nothing can be guaranteed or promised:

1. the judge may not allow all the facts you think should be considered to come into evidence;

2. the court is not trained to handle high-conflict cases, especially high-conflict custody cases where the alleged abuse is not physical;

3. the court will not put the same effort into the language of an order the way an attorney will;

4. credibility is subjective.

The first factor is the biggest unknown. For example, one of the factors the court considers when determining what custody arrangement should be ordered is the preference of the child, however, the Court of Special Appeals case, Leary v. Leary, 97 Md.App. 26, 36, 627 A.2d 30 (1993) determined that the child’s own wishes may be consulted and given weight if the child is of sufficient age and capacity to form a rational judgment. But we adopt a rule that there is no specific age of a child at which their wishes should be consulted and given weight by the court. The matter depends upon the extent of the child’s mental development. The desires of the child are consulted, not because of any legal rights to decide the question of custody, but because the court should know them in order to be better able to exercise its discretion wisely.

If the court refuses to hear from the child and they are the only one with the personal knowledge of the pertinent facts then your chances of success go from great to almost none. Especially, if the court does not allow evidence to come in through other witnesses because the court does not agree that the evidence trying to be admitted is admissible (the most common reason is because of hearsay, even though there are exceptions to the hearsay rule).

This may seem counter-intuitive and it begs the question: is the court really looking out for the “best interest of the child?” The truth of the matter is: the court is not equipped to always properly handle these type of cases; and if the court is limited on what is presented they do not get the complete picture in order to determine, the way parents can, what truly is in the best interest of the child.

Unfortunately, parental judgment on what is in the child’s best interest can be clouded, especially when they are in the midst of litigation with the other parent and are either trying to seek revenge or hurt the other parent, or trying to decrease or increase the child support obligation and they are unable to put this aside and actually think about what is best for the children or to seek the insight about what the children are thinking.

This leads me to why I am blunt and upfront with my clients. I’d rather have my clients have some say with the decision instead of leaving it up to a judge who, because of time constraints and the rules of evidence, only gets a partial view of your life and your children’s life. If you think your actions are protecting the children, in reality, you unfortunately are hurting your chances of obtaining as close of an outcome as you could possibly get.

As a parent I may not agree with the advice and recommendations I provide to some of my clients (especially when there are unproven allegations of abuse (physical and/or mental), I provide certain advice/recommendations, because I unfortunately have seen the perfect storm, one too many times:

The judge who will not hear from children (pre-teens or teenagers) who are straight-A students, and testimony has been provided by others about how the child is ‘mature beyond their years’, although the custodial parent did advise the children that the court ordered them to spend time with the other parent and physically walked the children to the exchange location (as ordered) and stayed outside (as ordered), because the children refused to stay with the other parent (and because the Judge refused to speak to the children) the custodial parent was found in contempt and ordered to pay the other parents attorney’s fees since the children listened to her about everything else (going to school, to the doctor’s, etc.,) that because they were not willing to go to the other parent, that parent could have done more and the custodial parent willfully disregarded the court order. This is why in many cases I tell my clients that it does not matter if the court got it right or wrong, you need to comply with the order.

Hence, listen to your attorney. They are not providing you with their advice/recommendation because they think it will win, but rather that this is the better of two evils, and likely the best possible solution to protect your child as much as you possibly can.

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