In April 2008, the Maryland Court of Appeals held that there is a legal basis for a civil lawsuit known as a “tort” (meaning, the kind where a person gets damages for civil injuries) when there is an extreme and outrageous history of interfering with custody and visitation. The Daily Record: Father Keeps $3M Award in Case of Two Sons.. In Khalifa et al. v. Shannon, CA No. 56, Sept. Term 2007. Reported. Opinion by Battaglia, J.; concurrence by Raker, J. Filed April 9, 2008) the Court of Appeals clarified an existing legal principle. Before Khalifa, the law required that to bring a lawsuit for interfering with custody and visitation, a parent had to prove that he or she had “lost [the] economic services,” of the child. Not so anymore, said the Court in Khalifa.

Technically speaking, the tort the court recognized is known as “interference with custody and visitation,” and it’s been recognized to a degree since 1986 in Maryland (Hixon v. Buchberger, 306 Md. 72, 507 A.2d 607 (1986)). However, most family lawyers in Maryland didn’t believe it existed before Khalifa (see the Daily Record comments by Michael Hendler and Marc Noren, co-chairs of the Maryland State Bar Association’s Family and Juvenile Law Section).

Even the judges writing the Khalifa opinion weren’t entirely consistent. Judge Battaglia said the tort had existed, but the prior case (Hixon) was not helpful because the degree of interference in that case wasn’t as severe as that in Khalifa. On the other hand, Judge Raker, who wrote a part of the opinion agreeing with Judge Battaglia, said that the appellate court had the authority to create a new tort of interference with visitation and custody, but that it had not existed before Khalifa.

Khalifa has some family lawyers in Maryland worried that there will be a mad rush to the courthouse to extend the conflict of unhappy divorces and their aftermath by filing lawsuits against interfering parents. There may be a few. On the other hand, there have been other cases in Maryland where the appellate court has opened up new areas of tort liability in family cases (such as the ability of husbands and wives to sue each other for all kinds of torts). When that happened, we heard the same thing. “Oh no, Mr. Bill! We’re going to be inundated with lawsuits by crazed divorce refugees!”

But it hasn’t happened. That’s because cases like Khalifa are one of the best examples of the appellate court doing its job. Creating new law or expanding older law to serve newly recognized needs of families. And one of the most pressing needs in Maryland family courts is a mechanism for consequences when parents ignore or flout court orders for custody and access.

Kudos to our Maryland appellate court! This is an awesome decision.

One of the toughest things faced by attorneys who advocate for fathers is the biases of judges. Every human being on the planet has biases. Even judges. The way it’s supposed to work is that by the time the judge gets to the bench, he or she is supposed to have enough self-awareness of his or her biases to know what they are and prevent them from influencing decision-making. That’s the idea. We all know it doesn’t work that way in reality.

The problem isn’t that judges have biases, the problem is, it’s often impossible to tell what they are or how they will show up until you’re in the courtroom.

Some judges do their job by the book. This means they do their best to understand and apply the law according to the rules of the state they are in. When a good “by the book” judge is hearing a case, his or her biases are kept in the background of the decision-making process. When a not-so-good “by the book” judge is hearing a case, the biases will lurk in the background and be impossible to nail down for an appellate challenge.

Then, there’s the activist judge. The biases of this kind of judge are pretty much in everyone’s face. But they are on the bench so there isn’t much a lawyer can do to avoid them. The good news is, if they aren’t careful to apply the law properly, they get reversed a lot on appeal. But appeal take time and money that many fathers don’t have at the end of a long custody battle. Usually, these judges are folks whose hearts are in the right place as far as families go. In too many cases, however, these judges have some personal power issue that drives them to want to play god with other peoples’ lives. Here’s a link to an Ohio judge whose decision-making seems to have come from the “god” perspective: Ohio Judge Jails Father for Teen Failure.

This case was in juvenile court, which means judges get a lot more latitude to tell families how to behave, but I’ve seen similar things happen in family court too. It’s this kind of decision that makes many men stay in unhealthy relationships because they’re afraid that if they leave, this is the kind of treatment they’ll get . . . because they are men. It’s this kind of decision-making I fight against every day.