Maryland Custody Law (Continued from page 10)
Volodarsky v. Tarachanskaya and Allegations of Abuse
Reading like a true-life Russian novel, Volodarsky v. Taranchanskaya6
provides
valuable instruction concerning evi- dentiary standards where allegations of abuse are at issue in custody proceed- ings. The Court of Appeals was asked to interpret MD. CODE ANN., FAM. LAW ART. § 9-101, which provides that “if the court has reasonable grounds to believe that the child has been abused or neglected by a party . . . the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.” (Emphasis added.) The Baltimore County trial court
heard evidence from several expert wit- nesses and concluded that the minor child had been exposed to some sort of sexual behavior, however, it was not convinced by a preponderance of the evidence that the child had been a victim of sexual abuse or that her father had perpetrated that abuse, as alleged by the mother.7 The Court of Special Appeals reversed
the trial court and created, albeit briefly, a new and lower burden of proof in abuse cases. It remanded the case, di- recting the trial court to “reassess the evidence to discern if that evidence sat- isfies the lower threshold of reasonable grounds to believe that [the child] was sexually abused by [her father] pursuant to § 9-101.”8 The Court of Appeals reversed, noting
that it was fundamental error to hold that the statutory provision’s “reasonable grounds to believe” created a burden of proof less stringent than a preponder- ance of the evidence within the context of Fam. Law. Art., § 9-101.9
In affirming the trial court, the Court of Appeals
6 397 Md. 291, 916 A.2d 991 (2007). 7
8 9
Id. at 302, 916 A.2d at 998. Id. at 304, 916 A.2d at 999. Id.
12
provided much needed clarification regarding the evidentiary burden of proof when allegations of child abuse are made. Regardless of any understand- able predisposition to err on the side of caution where the children’s safety is involved, it remains the proponent’s burden to prove his or her allegations of abuse by a preponderance of the evidence.
Fox v. Wills, Rule 9-205.1 and Guidelines for Children’s Attorneys
In Fox v. Wills,10 a mother filed a legal
malpractice claim against an attorney appointed by the court to represent her daughter’s interests in a divorce pro- ceeding in Montgomery County. The mother alleged that the attorney was negligent in abdicating his responsibili- ties as counsel for her daughter and that he became an advocate for the father whom the mother alleged had abused the child. The child’s attorney countered that he was entitled to “absolute quasi- judicial immunity”11
CODE ANN., FAM. LAW ART. § 1-202.12 Alternatively, he argued that he was entitled to qualified immunity and that the allegations in the complaint were insufficient to show requisite malice to overcome his immunity. In upholding the trial court’s grant
of the attorney’s motion to dismiss, the Court of Special Appeals reasoned that counsel appointed pursuant to
10 390 Md. 620, 890 A.2d 726 (2006). 11 Id. at 623, 890 A.2d at 728.
12
§ 1-202. Appointment of counsel for mi- nor. (a) In general. – In an action in which custody, visitation rights, or the amount of support of a minor child is contested, the court may: (1) (i) appoint a lawyer who shall serve as a child advocate attorney to represent the minor child and who may not represent any party to the action; or (ii) appoint a lawyer who shall serve as a best interest attorney to represent the minor child and who may not represent any party to the action. . . .
Trial Reporter
§ 1-202 does not function “strictly as legal counsel to a child client,” but rather is “performing judicial functions,” and thus enjoys at least quasi immunity.13 The Court of Appeals reversed and held that “an attorney appointed pursuant to § 1-202 of the Family Law Article is not entitled to any type of immunity from a malpractice suit.”14 Around the time that Fox v. Wills
was wending its way through the ap- pellate courts, the Maryland Judicial Conference Committee on Family Law, Custody Sub-Committee was develop- ing Maryland Standards for Practice for Court-Appointed Lawyers Representing Children in Custody Cases (hereinafter “Standards”). These guidelines are now referenced in Md. Rules, Rule 9-205.1 which took effect July 1, 2007. The new rule applies to the appoint-
pursuant to MD.
ment of counsel in all custody and access cases. In considering whether the appointment of child’s counsel is warranted, the court is to consider such factors as the “high level of conflict . . . , inappropriate adult influence or manip- ulation . . . , past or current child abuse or neglect” and other similar factors.15 In its appointing order, the court is
to “specify whether the attorney is to serve as a Child’s Best Interest Attorney, Child’s Advocate Attorney or Child’s Privileged Attorney.”16
The court may
permit the attorney to participate in discovery and include in its appointing order provisions for compensation of the attorney. According to 2.1.1 of the Stan-
dards, a best interest attorney is “a court-appointed lawyer who provides independent legal services for the pur- pose of protecting a child’s best interests, without being bound by the child’s directives or objectives.” This term re- places the outdated term “guardian ad litem.” Pursuant to 2.1.2, child advocate is defined as “a court-appointed lawyer who provides independent legal counsel
13 Fox, at 624, 890 A.2d at 728-29. 14 Id. at 621, 890 A.2d at 726. 15 Md. Rules, Rule 9-205.1(b). 16 Md. Rules, Rule 9-205.1(c).
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