United States: A Page Turner Opinion From Montgomery County Reminds Us Of What Is And Isn’t Relevant In A Custody Case

One of the most difficult concepts for lay persons to understand in the law is the rule stating that only relevant evidence is admissible in judicial proceedings.  The concept would seem self-evident as no one would disagree with the principle that courts should not waste time considering irrelevant evidence.  But when faced with a case that directly affects them, lawyers and clients alike tend to want to blur the line because we want to prove to the world that our opponents are somehow unscrupulous or at least unworthy to win a legal point.

My own episode came last week in a custody proceeding where my client was fixated upon the fact that his spouse had been having one if not two different affairs in the 24 months leading up to their separation.  Needless to say, there is no denying the sting of learning that a spouse was involved in such relationships at a time when his or her partner thought that all was either well or, at least satisfactory. But in the custody conference we had with the court, I was having a difficult time persuading my client that the focus of our presentation needed to be on what contributions he had made to the rearing of his kids in contrast with the pain he was experiencing as the victim of infidelity that his two youngsters knew nothing about.

Then I read K.G. v. E.D. a decision by Judge Coonahan published in the Montgomery Law Reporter.  151 Montg. Co. Law Reporter 151 (2014).  The facts as reported in the case are fascinating.

A single woman decides in Fall, 2009 that she will explore what dating possibilities she can find on Match.com.  There she encounters a profile for a man describing himself as divorced.  You can fast forward the next chapter but suffice to say that by Spring, 2010 she is pregnant.  In late December a daughter is born. Father comes to the hospital the day after delivery and all seems to go well until it is time to provide information about him on the birth certificate.  If the opinion gets it right Father is willing to identify himself only with first and last initials and refuses to provide a social security number. Thus he ends up not identified on the birth certificate.

While marriage was discussed Father confines himself to visits to see Mother and daughter several times per week.  When the child is one month old he arrives with a legal form which he says is intended to confirm his rights as father.  She thought the form odd but signed it anyway and life went on.  When Mother's maternity leave ended, Father said he would keep the child during the day at his home in Northern Delaware and arrange for a nanny.  The plan was supposed to be temporary until the couple actually established a common household but that wasn't coming about.  At one point Father suggested he keep the child for several days in a row so that the baby could get used to the nanny.  When Mother tried to get the child back, her request was not immediately complied with.  On a day in early March, 2011, our couple meets at a restaurant in Maryland where Father tells her he is actually married but that the relationship is an open one.  He also revealed that the document Mother signed in late January, 2011 was a consent to allow Father and his current wife to adopt the baby.

By March 7 Mother files and emergency custody complaint.  Father responds with a petition to stay the custody action because there is a prior pending adoption underway.  The case then swings over to Orphans' Court where the adoption is pending with Mother seeking to revoke her consent to adoption premised upon an allegation that the consent was fraudulently obtained.  A stay was briefly in place but that was quickly lifted and the parties entered into a consent agreement by which Father had primary custody and Mother had alternate weekends.

In October, 2011 the Orphans' Court revoked the consent and dismissed the adoption proceedings. Father appealed that to the Superior Court without success and then failed in his request for the Supreme Court to review the order terminating the adoption.  The fact that the adoption proceedings were in the Superior Court appears to have prevented the family division from hearing the custody case. The custody case began in March, 2013 and continued for fifteen days concluding in August, 2013 with an award of shared legal and physical custody which both parties appealed.

Needless to say, in the custody proceedings, Mother came on strong with what must have been a fascinating record and set of judicial findings from the Orphans' Court about the means and method Father employed to engineer an adoption of a child he wasn't too pleased to be having in the first place. Father probably did not endear himself to the Court by appealing the orders terminating the adoption to the Supreme Court and testifying that he did not agree that the adoption was sought fraudulently.

Mother was not without her own baggage.  While she had held several conventional jobs, at some time either before or during the time she met Father she worked in the sex trade as a masseuse.  One also has to question what Mother was thinking when she signed a consent to adoption; a document that is not really that ambiguous in its content.  Mother testified that she had worked in retail and accounting management, areas where one is presumably required to examine documents with care.

Judge Coonahan wasn't having any of this form a basis for her decision.  As she properly noted, in a custody proceeding the evidence needs to relate to the best interests of the child and not the character of the parties or conduct that is unrelated to raising a child.  As the judge put it at the outset of the trial: "It was a different inquiry {in Orphans' Court}. {That Court proceeding}... had a different focus, a different responsibility. ....  I make my own credibility findings."

As the Court observed, it was not there to redress Father's purported wrongs in trying to secure an adoption.  The determination in custody court was directed to the relative abilities of the parents to perform in the role of parents.

It is clear from this opinion that Mother assumed that the findings of the Orphans' Court and the Superior Court with respect to Father's "adoption" proceedings so besmirched his character as to make him an unworthy parent as a matter of law.  Certainly, one would have to reach far to find anything about Father's conduct or that of his real wife in pursuing adoption that speaks well of their character.  But that is not the standard.  The standard is how well do these people perform as parents to a child now just over three years of age.

One may argue that a person who is found to have sought an adoption wrongfully is, by definition, an unfit parent.  If you review older case law, you can find plenty to suggest that a parent who worked in the sex industry should also be labeled unfit.  We live in a different day and it is one where the word unfit must be reflective of conduct that affects the child both negatively and directly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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