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Legal Matters: Custody case brings out ruling on judicial authority

Children's best interest attorneys can no longer act as tiebreakers in disputes between divorced parents over child custody and visitation.

Judges sometimes appoint a child's best interest attorney when parents cannot agree on custody and visitation issues during the divorce process. The lawyer's responsibility is to advocate for what she believes to be the children's best interest. What she argues for is not necessarily what the children want, but what she believes would make their lives as stable and happy as possible under the circumstances.

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There are also lawyers called child advocates who can be involved in a divorce to argue for what the children want.

Best interest attorneys have been appointed as tiebreakers for disputes related to custody and visitation that arise after divorce has been granted. Parents who cannot resolve an issue would be advised to take it to the best interest lawyer, make their arguments and receive a decision.

Not permissible, the Maryland Court of Special Appeals ruled in a Caroline County case where the divorce was not the end of the parents' legal battles.

A county Circuit Court judge awarded the parents joint legal and physical custody of their two sons in 2003. Seven years later, the father moved the boys to South Carolina, where his girlfriend was then living. He did not tell the mother where he had taken the children, nor did he tell the boys they were moving.

The mother went to court for an emergency order and an award of sole legal and physical custody. She then retrieved her sons. The father countered with a lawsuit arguing that he should be the children's sole custodian. Before holding a hearing, the judge appointed a children's best interest attorney.

"This court is convinced the parents cannot cooperate ... .The father is over controlling, he's obsessive about control. He's a bully. Mom is inconsistent in what she does with these children. She lacks discipline," the judge said.

He awarded sole custody to the mother with visitation for the father and ordered the parents to communicate through email. If they could not reach an agreement over matters concerning the children within 24 hours, "then the attorney for the minor children shall serve as the 'tie-breaker' and resolve the dispute," the judge ordered.

The father appealed, arguing that the judge improperly delegated the authority to resolve disputes over the children to the best interest attorney, because it is a judge's role to decide custody-related issues. The best interest attorney is not a judge.

The appeals court agreed with the father. An earlier case that delegated authority to a best interest attorney to determine how long the parents should continue family reunification therapy was acceptable because it was simply coordination, not a judicial decision, the court said. But in the Caroline County case, the judge gave the best interest attorney broad authority to resolve disputes and did not indicate that he would review or modify the attorney's decisions.

A judge cannot delegate judicial authority, the appeals court ruled.

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