Sam Hasler, a colleague in Indiana, recently commented on something I’d written awhile back about the evidence needed for a father to win a custody case: Indiana Divorce and Family Law Blog. Thanks, Sam! I’m happy to get the message out.

The divorce is over. You have a custody order. Maybe you even have joint custody and a significant amount of time with your child or children. Months or years go by. Then your ex drops the bomb. She’s moving. She sends you a letter telling — not asking, telling — you that she and the kids are moving. It could be a move within your state or one that will take your kids across the country, but either way, there is no way you are going to be able to be with your children as you were before.

This is a familiar scene and one that motivates an increasing percentage of custody litigation in family courts around the United States.

In Maryland, our statute skirts around the issue, giving the court the option to include, in an original custody order, the requirement that the parent who has primary residential custody of the children, “provide advance, written notice of at least 45 days to the court, the other party, or both, of the intent to relocate the permanent residence of the party or the child either within or outside the State.” Md. Code Ann., Fam. Law Art. sec. 9-106(a) (as amended). We also have case law that supports the presumption that a move outside the state is a sufficiently serious change in circumstances to support a change in custody . . . sometimes . . . it depends.

On the other end of the spectrum are states that have mandatory relocation provisions written into their state statutes. For example, my colleagues in Michigan have described a statute there that they say requires either advance written agreement between parents or a court order before a parent can move more than 100 miles away. I can imagine all kinds of trouble with that kind of requirement as well.

Any time you look at a legal problem you have to look at both sides of the coin. What if you have residential custody and you need to move? What if you lose your job, or you have a family crisis that demands a move? Should the law force you to choose between economic survival and staying in your child’s life?

These questions, and others closely related to them, are problems the courts have to grapple with every day. They highlight the need for focused, child-centered, legislation crafted to protect the interests of children in an engaged and meaningful relationship with both parents. Rethinking our statutory mandate on child relocation would also give our judges the tool they need to ensure those relationships are protected.

Good news! Brayden Carty has been found and is now safely home with his father.

Here’s the America’s Most Wanted link: Parental Kidnapping Foiled in Tennessee.

Nothing is more terrifying to a separated or divorced parent than the fear that the other parent will take your child and disappear. In this case (that appears to be still open) little Brayden Carty was taken by his non-custodial mother from her Virginia apartment during a visit.

Contrary to popular opinion, it isn’t only non-custodial parents who kidnap children. Often, custodial parents (usually mothers), unhappy with a court ruling that allows the other parent any contact with a child, In this comment on Glenn Sacks’ criticism of a California parental kidnapping law, an expert on parental kidnapping has some sobering insights into the extent of the problem: Judi Cochran Comments on Parental Kidnapping.

What can you do to prevent parental kidnapping? Michigan family lawyer, Jeanne Hannah suggests a tracking device that operates on GPS technology. “Swatch Watch,’ Keeps Kids in Sight. . If your concern involves international kidnapping, and you and your child are a United States citizen, you can, under some circumstances, register your child with the United States Department of State U.S. State Department Prevention Tips for International Child Abduction.

Of course, none of this helps Brayden. If you, or anyone you know, may have information that will get him back to his dad, please help. Here is the website for America’s Most Wanted: Help Find Brayden!

In Maryland, the “best interests” standard is not found in the statute books, but in a series of appellate decisions. This past session, Del. Kathleen Dumais, a legislator and family law attorney from Montgomery County, Maryland, introduced a bill that would put many of the elements from the court decisions currently being used by the courts into a statute. The bill did not pass the Judiciary Committee in March 2008, but will probably be introduced again in the next session. Here is a link to the text of the bill: House Bill 1147: Family Law - Child Custody Determinations. As written, the bill would have significant impact on judicial decision-making in Maryland. On the plus side, it would set somewhat clearer boundaries within which judges make decisions about custody. On the minus side, it still leaves a lot of latitude for judges to make a decision on a basis that isn’t specific.

I’m a big believer in good legislation addressing family issues. However, for a bill this comprehensive, it’s important to have clear definitions for “fuzzy” concepts. This bill is a good start, but it needs some definitions. Stay tuned, because when the bill comes up again in the next session, there may be an opportunity to have some input on defining some of the terms in the legislation. Feel free to email me with your suggestions.

It’s always difficult for a lawyer to balance the demands of the client, the opposing party and the opposing attorney, but it’s really hell when there’s a “silent party” in the case.

That person can be a grandparent, a boyfriend (or girlfriend), sibling or church member, but the silent party is often paying the bill for the other party, and usually he or she has a lot of influence on the decisions made by the opposing party.

There isn’t anything ethically wrong with a third party paying the freight for litigation, but lawyers in Maryland are supposed to be able to set clear boundaries on the outsider that keeps them on the outside of the decision-making process and the lawyer’s door.

Too often, lawyers fudge the rules on the involvement of third (or silent) parties. When that happens, the other side can end up paying thousands of dollars in legal fees, most of which would have been avoided if it had been a straightforward dispute between two parents.

So. What can be done? Sometimes, nothing. But I do ask who is paying the bill, how much was paid, and when. I can ask the party if the other lawyer has a guarantee agreement that the opposing party signed. I can depose the paying party. And if the facts support it, in Maryland I can ask the court to include the silent party in the litigation.

In short, if I can develop facts that show the court who is really running the show, It can provide the court with another element to support my client’s claim for custody — the ability of the other parent to behave like a responsible, autonomous adult. It isn’t usually too hard to convince the court that the parent who demonstrates this quality the most effectively should be the parent the kids watch the most often.

If you are a father facing divorce your most important task right now is to step back and think carefully about what is most important to your children. If you have been the “breadwinner,” and you and your wife have divided the tasks of parenting according to the traditional model, she has stayed home to take care of the kids and you have gone off to make a killing in the corporate or professional jungle. Now, your family is changing. It isn’t ending, it’s becoming a different shape for all of you.

If your kids have been trundling off to preschool, or shuttling in carpools back and forth between private school and an endless round of activity, you need to take a hard look at priorities. So far, you’ve been making it economically possible for the tutors, the dance classes, and the tuition. You may be thinking the best thing for your kids is for them to continue having all that stuff. You may want to think about whether the “stuff” is what your children need most.

What your children need most is to have a mother and a father. If your work has taken you away from home most of the workweek and divorce will mean that you have to move to keep making all the money you’ve been making, so the kids can keep doing things they’ve always done maybe it’s time to think about what they would like to have most. Maybe this is a really good time to find some balance. What would mean most to them, riding lessons or an extra day a week with you? Would they rather go to the Caribbean for three weeks without you or camping for two weeks with you?

And how about you? Have you thought about what that extra $15,000 a year (or $20 or $50) is costing you? The homework session that lasts an extra hour while you and your child sweat out that math problem or figure out how to make the science project come right and the look of joy on your child’s face when he or she solves the problem or puts the finishing touch on the project? How much is that worth to you?

Transitions are a good time to re-evaluate your life. The changing shape of your family is a great opportunity to change your priorities. So step back and take a good, hard look at how to figure out what matters to your child. And then give it to them. The balance you find in your own life, the riches you gain from the depth you add to your relationship with your child, may well be worth many times over the dollars you lose.

Well, in the law, we actually call is PREsumption, but in reality, its an assumption. Father’s Rights groups across the country have been lobbying for states to pass laws making joint legal custody (the right of both parents to make cooperative decisions about critical matters such as medical, religious and educational matters) a rebuttable presumption. They miss the point. What should be abolished are not presumptions, but assumptions related to the decisions courts make to give primary residential custody to the parent who has been the “primary caretaker.”

The standard courts across the country use to decide child custody cases is known as the “best interests” standard. In spite of this fact, courts continue to decide child custody based on one or the other of two parents whom they deem to be the “primary caretaker” of the child.

When courts began to make decisions about custody, there was a presumption that a father had a “natural right” to the custody of his children. Then, the pedulum shifted, and the standard became the “maternal preference” presumption. Courts presumed that children needed to be with mommy, who was at home most of the time. After the women’s rights movement swept the country, and many states, including Maryland, adopted an Equal Rights Amendment, the presumption got a new name, the “primary caretaker” presumption.

Here’s how it works. The court begins by assuming that the most important thing to do when a family falls apart is to keep things the same for the children. That assumption is not only irrational, when taking into account the practical changes that occur when a family breaks up, it also makes a fundamental assumption that what is most important to a child is the time spent with one parent or the other.

This assumption is largely based on attachment studies done during World War II by noted psychologist, John Bowlby. During World War II, in Great Britain, children in London and other parts of Great Britain under attack by the Germans were whisked off to remote parts of the country to stay with relatives, friends and sometimes strangers. These children, especially the younger children, had serious problems later in life. Dr. Bowlby theorized that their problems came from a disruption in attachment. He designed a series of studies of monkeys that ultimately led to the “primary caretaker” philosophy. In short, the theory is that consistency with one caretaker (in Bowlby’s studies, the mother) is critical to the stability and mental health of a child.

What Dr. Bowlby missed was the possibility that a child could be attached to more than one parent and could suffer equally if separated from that parent. It’s tough to prove a negative. Nowhere is this more true than in behavioral science statistics that become adopted as legal theories. The problem with the primary caretaker presumption is that it only measures one element of the parental relationship — time — and ignores others, that go directly to quality of relationship. Of course, the quality of a relationship is much harder to measure than time, so using time makes decision-making much easier. But maybe it’s time to stop taking the easy way out when making decisions about children. Maybe it’s time to start looking at the world through the eyes of children. Stability for children is not measured in the amount of time they spend with one parent or the other. It is measured in the degree to which the child’s attachment with both parents is maintained after the reality of a family separation occurs.

The problem is, measuring and proving time is cheap and easy, measuring quality is expensive and much harder. Presumptions at law are really just assumptions used to make the legal process move faster and more efficiently. They don’t have much to do with reality. Whether the presumption is a rebuttable one for joint legal custody, or the one that favors the ‘primary caretaker’ they only serve as shortcuts with dangerous human consequences when adopted by
the law.

However, until things change, The Cordell Law Firm in Missouri has an excellent post on their blog on what you need to prove in court to pass muster as a “primary caretaker” The Cordell Law Firm:.

One of my pet peeves is scientific “studies” that present conclusions based on faulty or flawed reasoning. Usually, these “studies” rely on incomplete data. Instead of asking why something is so, they simply say it is, and use their observation to support more of the same thing.

Bad science uses something called “circular reasoning.” It reports what it sees as the reason for what it sees. Here’s an example: the grass is green because I see that it is green. Unfortunately, a lot of family court judges and legislators make decisions in favor of mothers as “the primary caretaker,” in just that way. Or they rely on a study because the source is supposed to be an expert.

This study, presented in his blog by Jeffrey Lalloway, a California attorney, is a stunning example of what seems to be really bad science (California Divorce).

The article doesn’t tell us anything about the real study, it just reports the conclusions, so we don’t even know if those are accurate. The writer talks about “distancing”‘ between teens and dads as if it is something that can barely be avoided, but doesn’t address why it is fathers move out of the home and away from the kids more often than mothers or what their relationship with their kids was before they moved out.

Fathers who have created a close and loving relationship with their kids in the years before the divorce won’t be part of statistics like those in this study if they divorce when their kids are teens.

“A wallet on two legs.” That’s what a lawyer I work with said a lot of people in the legal system think of fathers. How do you avoid that stereotype, especially when you are trying to keep custody of your kids and save your relationship with them during a divorce?

The best way I know is not to act like one, before, during or after divorce.

But you can’t do it alone. You need help. You need a model. You need a mentor. Sadly, there hasn’t been much help available. Most American men had a father who went to work on Monday morning, and came back on Friday night. If you were lucky, your dad was home a few nights a week (if he didn’t work overtime or travel). Weekends, your dad probably spent a lot of time catching up on household chores. If you were lucky, dad went to games, or scouts or church events, but it was probably your mom who took you places, made sure you saw the doctor, arranged for a babysitter if you needed one, and if she worked, it was mom who came home if you were sick.

If that is what you saw growing up, it is not the way to stay close to your kids now. Your priority needs to be your kids and their lives. Make sure you know who their doctors and teachers are. Make sure the people who care for your kids contact you, as well as mom, if the kids need you. Make it a point to let your employer know that your kids are more important to you than anything. Most of all, if you need help or advice or mentoring, ask for it.

More and more often, men are demanding that they be taken seriously as fathers. Organizations are springing up to give fathers hands-on help in how to be involved fathers. One such organization is, “My Child Says Daddy,” an organization in southern California dedicated to raising awareness of the importance of fathers in the lives of children. You can visit their website at: My Child Says Daddy.

Look around your area. Help may be much closer than you think.