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Thyden Gross and Callahan LLPCounselors and Attorneys at Law

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FATHERS’ RIGHTS
NOT JUST EVERY OTHER WEEKEND

This is about fathers' rights law, and protecting the best interests of your children. It provides information, news and comments on laws, cases and strategies for life as a single father and winning your custody, access or child support case.

Archive for September, 2007

Gay Dads: Different States Different Rulings

Friday, September 21st, 2007

On October 16, 2007, the Maryland Court of Appeals upheld a state law providing that marriage licenses could only be issued to a man and a woman. The law was being challenged on equal protection grounds by same sex couples, some of whom had children.

The Maryland Court, in Conaway v. Deane (2007), said:

So long as the Legislature has not acted wholly unreasonably in granting recognition to the only relationship capable of bearing children traditionally within the marital unit, we may not substitute our social and economic beliefs for that of legislative bodies.

Compare this to Goodridge vs. Dept of Public Health, 440 Mass. 309, 798 N.E.2d 941 (2003), where the Massachusetts Court found that a similar law did violate the equal protection provisions of the constitution.

No one disputes that the plaintiff couples are families, that many are parents, and that the children they are raising, like all children, need and should have the fullest opportunity to grow up in a secure, protected family unit. Similarly, no one disputes that, under the rubric of marriage, the State provides a cornucopia of substantial benefits to married parents and their children. The preferential treatment of civil marriage reflects the Legislature’s conclusion that marriage “is the foremost setting for the education and socialization of children” precisely because it “encourages parents to remain committed to each other and to their children as they grow.” In this case, we are confronted with an entire, sizeable class of parents raising children who have absolutely no access to civil marriage and its protections because they are forbidden from procuring a marriage license. It cannot be rational under our laws, and indeed it is not permitted, to penalize children by depriving them of State benefits because the State disapproves of their parents’ sexual orientation.

Justice Oliver Wendell Holmes, Jr. said we have a “great experiment” with different states trying out different laws to see which ones work and which ones do not. I was struck this week by the difference in approaches that two state appellate courts have taken in dealing with the difficult issue of same sex marriages.

Offer of Judgment

Friday, September 14th, 2007

Domestic Relations Rule 68 of the District of Columbia Superior Court Rules provides that a defendant or counter-defendant can make an Offer of Judgment at any time more than ten days before the trial.

You offer to allow judgment to be taken against you for money, property or to the effect specified in the order.

The plaintiff then has ten days to accept the offer by serving written notice on the defendant.

If the offer is accepted, the Court will enter the judgment, unless it finds that the provisions with respect to custody, visitation or with support are not in the best interests of the child.

If you reject the offer, and the Court finds that you did not get a better trial outcome than the offer, then you have to pay the other side’s attorney fees incurred after the offer was made.

So let’s say your husband sues you for child custody. You make an Offer of Judgment before trial that says you get custody. He is going to reject it because that is what he sued you for in the first place. If the court grants you custody, then Rule 68 may require him to pay your attorney fees for trial preparation and the trial.

Divorce Dirty Tricks

Sunday, September 9th, 2007

?Here’s a new trick to watch out for and it shows you how desperate people can get to win when child custody is at stake.

A father in London, England was fighting for custody of his four year old daughter. He received an email from a charity supporting his position that he should have more time with the child.

But when he tried to introduce the document in court, the wife’s barrister, Bruce Hyman, stood up and accused him of forging a fictitious email.

Unnerved by the chastening exchange in court, the father went home that night and researched how to track email on the Internet. He was able to successfully trace the email to an Internet Posting Service in Manchester. He called and they said it came from an it came from an Internet Shop on Tottenham Court Road in Central London.

The father is quoted in Britain’s Telegraph, “I called the shop and within five or six hours they emailed me saying staff had recalled a gentleman coming into the store on the day the emails were sent. He’d not bought anything but had asked to use their internet services. They then said they’d got him on CCTV and sent me some stills. I nearly fell off my chair.”

It was the wife’s barrister, Mr. Hyman. The barrister was later arrested by police for perverting the course of justice. He admitted he sent the email and he will be sentenced next month. He has been disbarred and could face jail time.

No Retroactive Changes in Child Support

Friday, September 7th, 2007

Child support cannot be modified retroactively. This is the so-called Bradley Amendment, one of the provisions of 42 U.S.C. Section 666(a)(9) that Congress required each state to adopt in 1986 or forfeit significant federal funding. The Maryland legislature enacted the provision as follows:

Family Law Section 12-104. Modification of child support award.

(a) Prerequisites. – The court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.

(b) Retroactivity of modification. – The court may not retroactively modify a child support award prior to the date of filing of a motion for modification.

The law was intended to keep parents from running up large child support arrearages and then having a sympathetic judge forgive or erase them.

Fathers don’t like it because it means that if they are laid off, are sent to Iraq, become disabled, spend time in jail or just have a cash flow emergency, they must move to modify child support. If they don’t, the meter keeps running on child support and it cannot be set back.

Mothers don’t like it because they can’t get child support increases back to when there income goes down or the father’s income goes up, if they are slow to file their petition with the court. Read more about this.

First Day of School with Dad

Monday, September 3rd, 2007

School is starting and around the country, many fathers, step-fathers and father figures are taking children to school on their first day. They are part of a national movement called the Million Father March that encourages people of all races, but particularly black men, to be active in children’s educational lives according to this story by Kelly Starling Lyons.

Phillip Jackson, director and founder of the Black Star Project in Chicago, says the goal is to eliminate the racial academic achievement gap. The way to do this is to encourage parental involvement, Jackson says. One key, he believes, is the commitment of dads.

Dads taking kids to school on their first day – is partly inspired by the Million Man March and partly by a South American practice of dads thanking principals and teachers on the last day of school, says Jackson.

The story goes on to report:

Father participation matters, according to a 1997 NCES report titled Fathers’ Involvement in Their Children’s Schools. Children from two-parent families and single-father homes who had fathers highly involved in school were more likely to get As and enjoy school, the study found. Children with involved nonresident fathers also fared better than peers with less involved dads. They were more likely to participate in extracurricular activities, and those in grades 6-12 were less likely to be suspended, expelled, or repeat a grade.

“It’s clear that when both parents are involved, kids do better,” says Channell Wilkins, Director of the Office of Head Start. “There’s more support, better language skills, more help to develop that child’s understanding of the environment around them.” At Head Start, dads who become involved in one program often join others. “It opens the door and lets them know how valuable they are to a child’s life,” Wilkins says.

 
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