for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client. . . .” Finally, a child’s privilege attorney is “appointed in accordance with Nagle v. Hooks,17
to decide whether
to assert or waive, on behalf of a minor child, in a custody action, any statutory privilege,” according to Standard 2.1.3. New Md. Rule 9-205.1 and the Stan- dards of Practice lend much needed guidance for attorneys who undertake the representation of children in highly contested custody proceedings. While not conferring immunity, adherence to the standards will allow attorneys who engage in this rewarding work to avoid legal malpractice claims.
Koshko v. Haining and the Demise of Grandparents’ Visi- tation Rights
Since 1991, Maryland grandparents
have had the statutory right to “petition for reasonable visitation of a grand- child.”18
In order to secure visitation, the
statute requires that the grandparents prove merely that such visitation is “in the best interest of the child” for the court to grant grandparents visitation rights. Koshko v. Haining,19
emanated from
Baltimore County where maternal grandparents sought visitation with their three minor grandchildren. Fol- lowing a two-day trial in April 2004, the trial judge concluded that the grandpar- ents had “rebutted the presumption in favor of the parents’ determination of what is in their child’s best interests.”20 The court constructed a fairly extensive custody schedule, and the Koshkos appealed asserting that “their parental rights and the intended presumption favoring parental decisions relating to their children’s best interests are dis- regarded both by the express terms of § 9-102 of the Family Law Article, as
17 296 Md. 123, 460 A.2d 49 (1983). 18 MD. CODE ANN., FAM. LAW ART. § 9-102 19 398 Md. 404, 921 A.2d 171 (2007). 20 Id. at 410, 921 A.2d at 174.
Winter 2008 Trial Reporter 13
well as its application by the trial court in the present grandparental visitation dispute.”21 The Court of Appeals found that the
Maryland Grandparent’s Visitation Stat- ute was valid, as had the Court of Special Appeals. The High Court, however, construed the statute to include a “pre- sumption favoring a parental decision, which first must be rebutted before any inquiry into the child’s best interests.”22 While the court noted that its decision
was based on ample Maryland authority, it favorably mentioned the U.S. Supreme Court’s decision in Troxel v. Granville,23 wherein the Supreme Court, citing the constitutional rights of parents to raise their children, voided a Washington state law allowing third parties to petition for child visitation rights over parental
21 Id. at 424, 921 A.2d at 182. 22 Id. at 439, 921 A.2d at 191.
23
530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
24
Koshko, 398 Md. at 444, 445, 921 A.2d at 195.
objections. Accordingly, the Court of Appeals ex-
plained that “there must be a finding of either parental unfitness or exceptional circumstances demonstrating the cur- rent or future detriment to the child, absent visitation from his or her grand- parents as a prerequisite for application of the best interest analysis.”24
Collaborative Law, Is it Even Ethical?
As noted elsewhere in this issue, col-
laborative law is gaining in popularity. It is undeniably preferable for children that their parents resolve differences in as civil a posture as possible. Collab- orative law, despite these advantages, remains quite controversial among fam- ily law practitioners. The fundamental precept of collaborative law is that the
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