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When the judge is right but the law is wrong

Evan Koslow

Evan Koslow

I am going to take advantage of the opportunity to be able to write on this forum and vent for a moment.

If you are a regular reader, you know I am a family law attorney. So there are times when I find myself agreeing with the judge’s decision because the law required the judge to rule a certain way (even if the decision does not favor my client) but then I hate how the system is truly not there to help families.

I say this more as it relates to the process in Maryland for emergency custody proceedings. Although there are supposedly no “local” rules, it’s common knowledge this is untrue, especially when it comes to emergency hearings.

Some counties in Maryland have a designated courtroom and hear emergencies during regular business hours. Other jurisdictions only hear emergencies during certain days and times. And others do not hear an emergency on the day it is filed but instead either review the emergency motion in chambers and rule on the motion; or review the emergency motion in chambers and then schedule an “emergency” hearing a few weeks down the road. (I’m not sure how hearing an emergency motion a few weeks later really accomplishes resolving the motion immediately, but I digress).

If you practice family law on a regular basis, no matter where you practice, the common take on filing emergencies is you really are only going to get an emergency granted if “there is blood on the wall.” Meaning that, unless a parent is a drug addict, an alcoholic or has abused or neglected the child or children, the court will NOT grant the emergency motion. (Although some courts may deny the emergency motion and, depending on the facts presented, may schedule an expedited pendente lite hearing and/or an expedited scheduling conference.)

Here’s where I need to vent: I was recently in court because a parent provided my client with approximately 30 days’ notice they were relocating more than than four hours away with their 13 year-old 8th grader with approximately four months left in the school year. For the last 11 years the parties were sharing custody, and my client had 140 overnights annually. Their daughter was in gifted and talented classes for the last five years and has lived in Maryland her whole life.

I gave my client all the rights and options, including filing for emergency and/or an expedited pendente lite hearing, and my opinion of what the likelihood of success for each would be, the time constraints and the cost. My client ultimately decided to file for an emergency hearing, with the hopes that if the court did not find it to be an emergency, they would at least set an expedited hearing. (At the point the emergency hearing was filed, it was less than 30 days from when the other parent planned on moving out of state).

In court, as expected, the judge admonished the other parent for wanting to take the child out of school with four months remaining in the school year. But the judged added that, although this may not be in the child’s best interest, because there was no immediate danger of harm to the child and the parent moving out of state had tiebreaker authority for legal custody, there was nothing the court could do.

I then asked for an expedited pendente lite hearing, which was denied because this was not one of the counties that schedules such hearings when the facts do not align to an immediate danger but is evident without court intervention the child (or children) would likely be harmed; and, in this court, the judge who heard the original custody matter is assigned the case if any modifications are filed, and since the emergency judge was not that judge, a separate motion for an expedited pendente lite hearing would need to be filed.

If we wanted it to be heard before the other parent relocated, the motion would have to be walked through to that judge for consideration. (Which in turn would increase my client’s fees with no guarantee that (1) it would be granted; and (2) even if granted, that the particular judge would have availability to hear the case on a date that myself and opposing counsel were available).

This is why I say that the judge made the correct ruling but the system failed this family due to “local” rules, specifically this 13-year-old girl who is going to be uprooted in the middle of her school year just because one parent wants to relocate (no matter if there is a rational reason or not) and the parties happen to live in a jurisdiction that does not have a hybrid of an emergency hearing and regular course pendente lite hearing.

No wonder pro se parties have such disdain for the courts, and no wonder good family law attorneys try to settle cases. However, what happens to the parties who are educated and/or attorneys who do not care what is best for the family and just want to “win” for their client and know that the court will not rule against them due to the law/rules and are not able to settle?

Unfortunately, what happens is the decision in the child’s best interest is actually not accomplished through no fault of the court.

What can you do? First, understand and respect the judge’s decision and that, just like attorneys, many times their hands are tied on ensuring that the best interest of the child is met. Second, there are other ways to prevent this from happening. The best way is to lobby the state legislators to try and pass legislation that will prevent parties from taking advantage of the system.

If you have any ideas of what that may look like I would love to hear from you.

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