Emergency Child Custody: Child Custody Disputes over Holidays

It is that time of year again- “The Holidays.” The period of time which makes even the most well-adjusted, intact family flutter with the normal anxiety of the season, namely shopping for gifts, preparing homes for guests, spending money, arranging for adult children’s return from colleges.

Heap on top of the ordinary anxious frenzy, the issue of a child custody dispute and what do you get? Stressed out. Over-whelmed. Angry. So what to do if you have an emergency child custody disagreement with your child’s other parent? Can it be resolved in time for the holidays? How will a judge decide your case? Will a judge decide your case?

Sad to say that a parental emergency to have a child for a holiday is unlikely to be the kind of emergency that gets heard in time for the holidays at this juncture. Emergency situations are often limited to situations where irreparable harm or bodily injury may occur without judicial intervention, for instance, parental kidnappings, parental disagreements over an emergency medical decision, domestic violence situations. Missing your child’s first Thanksgiving or Christmas may not qualify as an emergency, depending on the judge, and perhaps, depending on the expertise of your lawyer.

If you had a dispute over holiday child custody, in the State of Maryland, most times parents will be ordered to participate in mediation before a judge will give you a court hearing on the matter.
So why not head to mediation in the first place? Call your family law mediator. That is the solution for resolution. The family law mediator is trained to assist families to resolve child custody matters – quickly in time for the holidays! The money you save from avoiding litigation can be used to pay off those holiday bills.


Mediation with Nancy Caplan at http://www.divorcemediationmaryland.com/ can be scheduled during regular business hours, evenings and weekends. That means you won’t have to take time off from work. The court system simply cannot provide that kind of convenience and control over your schedule and life.

So if you are facing a holiday child custody battle, lay down your arms and come to the negotiating table to arrive at a solution which will assure that you have a Happy Thanksgiving, a joyous winter break, a Merry Christmas and happy holiday season. In Maryland, call 410-296-2190 to schedule mediation with Nancy Caplan, Esquire, attorney and mediator located in Baltimore County, Maryland.

Nancy Caplan, Esquire is an attorney and mediator located in Baltimore County, Maryland. Ms. Caplan’s practice focuses primarily on family law mediation for separation and divorce, unmarried parents, same sex parenting issues and all other custody disputes.

Custody Battle Becomes Deadly

“He was a really nice guy.”

That is a quote from a friend of the custody-battle embroiled beauty salon killer from Seal Beach, California. When I first heard about the horrible killings and listened to the friends, former friends and neighbors of the killer I said to my psychologist-fiance- “Huh, you don’t usually hear that about these kinds of nuts.”

By the next day’s news cycle the motivation for the killings was revealed. Embroiled custody battle over an 8 year old boy. The shooter and his ex-wife had been in court that very week. Then I thought to myself- “Ok, now I get it.”

I am a divorce mediator and I conduct private mediations as a majority of my practice. People who agree voluntarily to resolve their disputes in private mediation are a different breed of divorcing couples. They’ve decided from the get-go to resolve their differences. They are not all touchy-feely “I’m divorcing my best friend” types. What they have in common is that the divorce has not gotten the better of their good sense. And that’s no small feat. I congratulate them every time.

Every now and again, a couple of divorce litigators will throw a child custody warring couple into my office. The nature of these couples is an altogether different animal. These folks are angry to the point of tears and table banging. They are standing on an emotional ledge. It is my job to talk them off the ledge.

And as the Seal Beach Killer demonstrates, I’m not over-stating the emotional mindset of these folks. I don’t need a psychologist’s expert opinion to tell me that a custody battle is enough to turn a “nice guy” into a monster. Is there anything more primal than a parent-child bond? There’s no negotiating that away. That’s why in Maryland 100% of family law matters filed in court involving visitation or custody (often referred to as “access”) are referred to mediation as a first resort. The mediation referral should not have to wait for a court filing.

Every day separating and divorcing couples turn to divorce lawyers out of ignorance, fear and/or with vengeful motivations. The divorce lawyer attempts to negotiate the custody issues. The problem is that the middleman (or woman) attorney is the dead wrong approach. A couple who comes to the legal system whether via divorce lawyer, divorce mediator or the courts requires an immediate intervention to ratchet down the heat. To reality check. To be monitored by the system. Because a parent threatened with the loss of a child is completely unpredictable. Heap on the financial and romantic devastation (imagine an adulterous spouse who has a “leg up” on the custody dispute due to his or her stay at home parental status) and you have a chemistry experiment waiting to go bad.

A divorce lawyer is sworn to zealously advocate for his or her client. Unfortunately in custody situations this sworn duty is in direct conflict with the true needs of parties to de-escalate the situation. A few years back the Maryland Bar fought like trapped animals to block an attempt by the ethics rules committee to add in a requirement that lawyers must advise clients about the option of alternative dispute resolution. They won. Of course. They are litigators. Their clients have lost.

What will it take to create the requirement that divorce attorneys, when presented with a high conflict custody matter, immediately refer that couple to an intervention to de-escalate the situation? Do we need a Seal Beach killing spree here in Maryland? Why are the courts bound to refer such a matter to mediation, but yet, the attorneys can’t even be burdened with a duty to advise the party about the option of alternative dispute resolution? We all know why the lawyers don’t want to be bound by such an obligation don’t we? And it doesn’t involve the best interests of any child or even the client represented. It is because custody battles command the big retainer bucks.

No doubt that a great litigator can artfully make the argument that the Seal Beach killer was an anomaly, but was he an anomaly? The killing spree reaction may be a fluke but extreme reactions of parents in custody battle situations happen every day. Waiting for an intervention by the courts after a few rounds of threatening letters designed to frighten the pants off of “opposing party” is too late. It is up to the “first responder” in an custody emergency to make the intervention- which due to the hateful nature of the beast is typically the litigation lawyer. Unfortunately it takes two litigation lawyers to agree to advise their clients as one voice to forego the profitable custody litigation, so a single ethical attorney won’t get it done alone unless he or she immediate files in court and requests the intervention- whether it be counseling, parenting classes or mediation.

We don’t need another parental kidnapping or homicidal rage to learn that which the legal system has repetitively learned- custody disputes must be met as an emergency situation by the “first responder” lawyers, and they must be required to do so, because we can’t count on a professional to look past his or her financial best interests in a system that doesn’t require that. That expectation is about as realistic as a parent not reacting badly to an attempt to separate him or her from his or her child.

For more information on divorce mediation in Maryland, visit my website at www.divorcemediationmaryland.com.

Divorce Mediation: How 3 Professionals Cost Less Than 2

A math problem and riddle: How can [1+1] add up to more than [1+2]? The answer? Attorney-led Divorce Negotiations vs. Divorce mediation followed by attorney review of the Separation Agreement.

In attorney-driven divorce and separation negotiations, to arrive at the legal and binding Separation Agreement, 2 attorneys, representing the Husband and Wife independently, negotiate the terms of the parties' Separation Agreement. 1 + 1. Notoriously expensive. Often produces additional animosity between the parties.

In separation and divorce mediation, 1 mediator facilitates the parties' face-to-face negotiations, which are then drafted into a Separation Agreement (often by the mediator), and the Separation Agreement is then reviewed by 2 attorneys, representing the Husband and Wife independently. 1+2. Cost-effective. Usually diminishes animosity between the parties.

Therefore [1+1] is more than [2+1] in terms of financial and emotional costs. This may be counter-intuitive, but it is typically true.

Think about the realities of divorce settlement negotiations, and the truth of this riddle's answer is apparent. What will be the child's schedule? How will Christmas be shared by the parties? How much does each party earn? What are the expenses of the children? Can one party qualify to buy out the interest of the other in the Marital Home? What are the expenses of the Home? What is the fair way to divide the equity or pay the deficiency?What are the income and the expenses of each party? Where are the assets? How are the credit cards titled? Should each party keep his or her own car? How long should the parties jointly maintain car insurance?

The point is that there is little magic to a fair negotiation of a divorce settlement. The parties are typically the experts in their own lives, whether the negotiations are about the children, their home and/or their assets and liabilities. As such, their direct negotiations are far more efficient and knowledgeable.

This does not negate the usefulness of obtaining legal advice. In mediation, very often a party is consulting with his or her own attorney during the negotiation, and always prior to signing the formal Separation Agreement. The parties simply cut out the middleman, by adding a middleman- namely the mediator. The mediator adds the neutral third party to assist the parties in what can be highly emotionally charged situations. The lawyers remain, but only as legal advisors, not negotiators. The parties are their own negotiators.

Hence 3 professionals actually end up costing far less than 2 professionals. The mediator promotes settlement, not antagonism. The mediator promotes settlement, not court battles.

Do the math. Ask your prospective attorneys about the cost to hand the negotiations over to him or her. Then find out about the cost of divorce mediation with Nancy Caplan, Attorney and Mediator. Do the math.

Fairly Legal

The television drama, “Fairly Legal” is the story of a lawyer-turned-mediator and her ability to cut to the chase to resolve a garden variety of legal disputes in a way that is always superior to litigation in the legal system. All I can say is “thank you” USA Network, thank you.

When I re-trained from litigator to attorney-mediator and launched my new private practice, I read a bunch of books on marketing my divorce mediation practice. Among them was Malcolm Gladwell’s “Tipping Point” a book about how trends catch like wild fire. Now that I had been enlightened to the profound wisdom of divorce mediation, and its incorporation as part of the Maryland Court process, I thought to myself, “Nancy, get ready to ride the wave because mediation has to be at the tipping point…” But no, not really. So impressed was I with Gladwell’s analysis, that I wrote a draft of an article which I entitled “The Tipping Point of Mediation.” But I never published it, because early in practice, I realized that, at least in Maryland, it seemed that Maryland had not reached that “tipping point.”

So I turned my attention to how I might contribute to the push to the tipping point? I attended bar association social events, the Maryland State Bar Association Annual Convention, and sent letters to every lawyer, marriage counselor and clergy person I could find online or in the yellow pages and let them know I was available for hire. My practice puttered along in growth. I revamped my website, once, twice, thrice. I used all of my meager profits to purchase advertising. I snapped up all of the available domain names that I could find. I gave seminars and took continuing education classes. I applied to and was approved as a mediator for the Circuit Courts of the State of Maryland. I gave a presentations to my peers. I had lunches with former legal colleagues and begged them for the cases who couldn’t afford to pay lawyer fees to negotiate. I wrote blogs.

The blogs kept my content in my website fresh. But how fresh can the topics of child support, custody, alimony, property division, divorce or separation agreements be? I researched mediation in the news to unblock writer’s block, and that’s when the new show “Fairly Legal” caught my attention.

I was excited. At least with a tv show I had a jumping off point to write. I’d watch an episode and write a blog. What could be easier? I watched one episode and thought, ok, well that’s not really mediation- a mediator doesn’t leave the disputing parties in her conference room to duke it out while running across town to the courthouse, quickly mediating to save a golden boy from the getto from prison and then run back to the conference room to deliver the wise and profound mediator words which caused the mediation participants to arrive at a magical resolution. No that’s not really mediation, not to mention the numerous ethical violations that the Fairly Legal Mediator beauty (I do love that the mediator is gorgeous) commits each episodes are mind-boggling, but hey, it’s fiction and entertainment. Real mediation would be much more boring. But before I could start my episode by episode blogs a crazy, crazy thing happened. My business phone started to ring off the hook. My part-time mediator friends who use my office for the occasional mediation started calling “hey we are busy we need space” and my email contact forms were filling my inbox.

While I was basking in my suddenly booked calendar and watching my operating account grow, I was in a self-congratulatory mood. I thought to myself, “look at me, my practice is just like ivy, plant it in the spring, and then the next year “sleeping” the next year “creeping” and then finally the next year “leaping!” Just as my financial viability seemed hopeful my fiancé, John, rudely stated “Geez, I guess there’s been no better advertising for you than that show Fairly Legal.”

Hmmmmm….well that burst my bubble a little bit. How dare he not attribute my success to me? I was mad at him for undermining my self-confidence and he scrambled to recover from foot-in-mouth syndrome. “No, honey, sweetheart, wonderful mediator, my love! Let me explain! You can have the biggest boat in the harbor, but if the water level is too low, you’ll just trudge through the silt, when the tide rises, your boat and all others will rise with with it ! The show is the only national, mainstream advertising out there!" (Did I mention my fiancé is a writer, and hence he metaphors his way out of a lot of tight foot-in-mouth spaces?) So I thought about it. Wasn’t it just last week that one of my mediation participant couples mentioned the show? Was John correct?

When I began practicing mediation exclusively I attended a meeting with the Mediation And Conflict Resolution Office (MACRO) to hear what they were all about. There were very few people seeking to be part of the leadership and leadership was focused more on professionalism in practice than whether mediators could earn a living wage. I offered what I thought were marketing pearls of wisdom- “Why don’t we utilize whatever funds we have for organizational advertising? If we wait for litigators to farm us their business we’ll starve.” My thoughts were heard, applauded and dismissed, it simply wasn’t part of their agenda, and who knows, perhaps the funds available to them were few. My point was and is this- if people really understood mediation, and/or knew it existed, felt it was mainstream and not a new age form of meditation, then if we built it- they would come.

Over the years since I opened my practice in early 2006, mediation has grown in an organic and steadily strong way. Not just divorce mediation, but business mediation, and mediation on the world stage of international disputes- mediation is picking up steam. And hence the creation of Fairly Legal. Mediation began to grow, and therefore Hollywood followed. And when Hollywood follows, how far behind can be the tipping point be? Ask my appointment book.

Mediation and Attorney Consultation and Review

I firmly believe that one day, Maryland, like a few other States will expressly permit attorney-mediators to draft formal Legal Separation Agreements (i.e. also known as Marital Settlement Agreements) for folks who are not represented by his and her own attorneys. What this will mean if it happens is that folks will put themselves at risk in the future for a possible challenge against the Separation Agreement's validity by one party or the other. This is because an attorney review of a mediated legal Separation Agreement for each party is the insurance that neither party can say in the future "I didn't understand the legal ramifications of the Separation Agreement" and challenge the validity of the Separation Agreement.

Thus even if the Committee on Legal Ethics in Maryland reverses its current position and grants separation or divorcing folks the right to choose the level of risk they are willing to take when forming legal contracts, as a mediator, ethically I will feel the need to scare the pants off of mediation participants to compel them to obtain attorney reviews, except in limited cases (i.e. no children, no assets, no debts.) As a mediator I always tell my participants that the goal is to reach a (1) "Fair" agreement- one that reflects a healthy collaboration of the standard of fairness set forth in the law and the personal standards of fairness of the parties; a (2) "Practical" agreement- one that when implemented is workable by the parties when living in real life (i.e. no one agrees to pay or take on more than they can afford, or a party doesn't agree to a custody schedule he or she can't keep); and (3) a "FINAL" agreement.

It is the "final" part which is in jeopardy when there is no attorney review. Most people come to mediation for two reasons: It is less stressful and more economical. If the legal Separation Agreement is vulnerable to challenge in the future (meaning one party is now filing suit to invalidate the legal separation agreement in whole or in part), how has the mediator alleviated the stress or the expense of divorce? Where's the finality? And thus avoiding an attorney review to save money is a bit "penny-wise, dollar foolish."

When obtaining an attorney review it is important to understand the quality of the legal opinion you seek. The question each party will ask is this "How would the issues be decided in a court of law" because the answer to that question gives a party the parameters of his or her negotiating strategy. To get the most accurate answer to that question, you have to ask a lawyer with litigation experience in the county in which you intend to seek the divorce.

For instance, if you live in Harford County, but can't find a Harford County Separation and Divorce Mediator, you might seek out me, a Baltimore County Separation and Divorce Mediator. However, just because I'm a Baltimore County Mediator does not mean that the reviewing attorneys should be from Baltimore County. Ideally the parties will seek legal advice and review from Harford County attorneys. After all, which attorney can best tell you how the individual judges in the county in which the parties' live might decide child custody, child support, alimony or property division. Judge "A" from Baltimore County might tend to favor joint physical custody; Judge "B" from Harford County might consistently rule against joint physical custody. Only the true litigation attorneys who practice regularly in Baltimore County, or Harford County, or as the case may be, can provide you with real life advice on the individual differences between the judges, to provide you with the best possible quality of legal advice.

Now before I get a rash of negativity from mediators who feel that attorney advice is not a necessity, I will qualify my position like this: Most things in life involve balancing a risk versus a cost to avoid the risk assessment. I believe that intelligent folks can make this assessment themselves and don't need the paternalistic sweeping protection of an association run and overseen by attorneys ("fox guarding the hen house" comes to mind) to make the choice for them. Armed with rational information and an accurate perception of their specific financial condition, people should be able to reasonably make this decision on their own. But in my humble opinion, if there is room on the credit card, or home equity line of credit, etc., there is room for rational "Legal Separation Agreement" insurance, i.e. an attorney review of a mediated legal Separation Agreement.

Same Sex Marriage in Maryland?

Even the small-minded masses can't stop same sex marriage from coming to Maryland or elsewhere in the United States. Over and over again history reminds us that social progress is as unstoppable as democracy in Egypt.

I thought about what the happening of same sex marriage would mean to separation and divorce mediation in Maryland. Obviously, the more marriages that occur, the more divorces that will occur. In fact, if same-sex marriage comes to Maryland...I mean when it comes to Maryland, the first thing that will happen is that many same-sex partnerships will break up. Say what??? Yup. A lot of commitment-phobes will be running scared away from their "marry-me-now-because-it's-legal" partners. I doubt statistical records will be kept but I venture to say that the legalization of same-sex marriage will be the death knell for many partnerships where one partner was either perfectly happy with their personal status quo; or unhappy but silent about it, but now when pushed on the issue...well it doesn't take a heck of a lot of imagination. People are people, relationships are relationships. Yes, I know, it is a cynical vantage point that we divorce professionals have. How could we not?

How will same-sex divorce work from a procedural perspective? Duh. It will be exactly the same as any other family law matter. Long gone are the days when couples sharing children are necessarily married to one another! Divorce mediators and attorneys are mediating and trying child custody matters in Maryland between heterosexual unmarried couples every day.

However, same sex marriage in Maryland, while in its infancy (of course I am assuming it is coming), will produce certain sticky issues when it comes to Alimony and division of marital property within the court system. Why? Because the "length of the marriage" factor often won't equal the time in which two same-sex partners have been together. For alimony/property division questions this will mean that "length of marriage" in a same-sex-partnership-turned-marriage, should be given less weight and the "any other consideration" factor should encompass how many years the pre-marriage partnership preceding the marriage existed. This "any other factor the judge finds relevant" should balance the inherent unfairness that long partnerships/short marriage relationships might face when gay marriage finally arrives in Maryland. I say "should."

Here's the problem- a judge biased against same-sex marriage might not be fair. Ok, there goes the cynic in me again. That's why I am a mediator. Not because I'm a cynic, but because judges are human beings and they bring their own personal biases to the bench and therefore into your homes in family law matters. I am a mediator because I believe that especially in family law matters, if one is looking for fairness in settlements, one needs to rely on the fairness of the participants.

And therefore I urge same-sex partners and hopefully in the very near future, same-sex spouses who are separating or divorcing to choose mediation above other divorce processes. In same-sex family mediation in Maryland, the parties will work from their own value system when making choices for their post-separation/divorced families who will continue (albeit in a different separated/divorced format) after the choices are made. My point is this- Same-sex partners or spouses better make darn sure that they subject themselves to a process which guarantees that they are treated the same as their heterosexual counterparts. If the same-sex couple tries to screw one another in the separation/divorce process by capitalizing on the system which was and may continue to be biased against same-sex couples, then....well the phrase that comes to mind is one step forward, two steps backwards, or something like that.

Both mediation and same sex marriage have a lot in common. In reality, both have been around since the beginning of time in one form or another. Both the process of mediation and the legalization of same sex marriage represent a positive progression for society. Both are unstoppable and inevitable.

Child Custody and Mediation in Maryland

Why begin with mediation when you have a child custody dispute in Maryland?

Reason #1- Because a child custody dispute in court is like a gun fight in the wild west. Bullets are flying, and a lot of people will be caught in the crossfire, including your child or children, and your children's parents (in other words, the parties themselves).

Reason #2- Because in Maryland, child custody disputes are ordered to mediation! Be ahead of the curve, begin your child custody negotiations in mediation.

Reason #3- In child custody mediation the tone of the discussions are geared towards settlement and threats and fear tactics are discouraged and who needs to pile on more fear in a child custody dispute?

Reason #4- Who are the experts in your child? The Judge? The Lawyers? You?

Reason #5- Because your relationship with your co-parent will continue no matter the manner in which your child custody dispute is handled; Ugly handling of the dispute = ugly co-parenting relationship.

Reason #6- In child custody mediation, creative solutions, finely tailored to the parties and the child/children are readily crafted; litigated child custody disputes are decided in black and white terms.

Reason #7- Couples who handle their child custody disputes in mediation, usually return to mediation for future dispute and vice versa- start your child custody disputes in litigation and you may be litigating over the child/children for life- KER-CHING!

Reason #8- KER-CHING!!! Child custody battles cost the big bucks! Just call a child custody lawyer and ask how much of a retainer he or she will charge for a child custody case. Then ask the lawyer to give you a range of the total fees and costs for a litigated child custody battle.

Reason #9- What kind of example do you set for your child/children by handling a dispute with a battle vs. handling a dispute with calm, considered negotiations in a non-hostile manner?

Reason#10- In child custody litigation nobody wins. The only way to win, is not to play. Choose child custody mediation to resolve your Maryland child custody disputes.