Tuesday, May 12, 2015

WARNING: SIGN AN AFFIDAVIT OF PARENTAGE AT YOUR OWN RISK


In a recent decision, the Maryland Court of Special Appeals held that an individual was obligated to pay child support for two children even though the children were not his. 

In Davis v. Wicomico County, Jessica Cook gave birth to twin boys.  Shortly after the birth of the twins, Ms. Cook and her boyfriend, Justin Davis, signed an “affidavit of parentage” at the hospital.  (Such affidavits are signed when the mother is not married.)  By this affidavit, Ms. Cook and Mr. Davis affirmed that they were the children’s parents.

Ms. Cook may have been the mother of the children but Mr. Davis later found out that he was not the father.  Although she knew Mr. Davis was not the father, Ms. Cook sought child support from him.   Mr. Davis, of course, opposed Ms. Cook’s efforts for child support and asserted that he was not responsible to pay child support since the children were not his.  (This sounds like a reasonable argument to me.) 

Mr. Davis requested a paternity test but his request was denied by the Court.  Relying upon the Affidavit of Parentage that he signed at the hospital, the Circuit Court held that because Mr. Davis had affirmed that he was the father of the children at the time they were born and he did not rescind his affidavit within 60 days of signing it (as provided for by statute), the issue of parentage could not be re-litigated by him. 

The Court of Special Appeals affirmed the trial court’s decision.  As a result of the decision, Mr. Davis is now obligated to pay child support for two children who are not his.  All because he signed an affidavit of parentage at the hospital.

The take away from this decision:  do not sign an affidavit of parentage at the hospital unless you know you are the children’s father.  The assertion contained in the affidavit that you are the parent of the child will be binding upon you unless you rescind the affidavit within sixty days of its execution, unless you can prove, fraud, duress or material mistake of fact.   (How’s this for fraud:  “She lied to me and I believed her.”  Or material mistake of fact:  “She told me I was the father and I believed her.”)

Although the Court’s holding may be technically correct based upon the applicable statute and the procedural history of the case, it is grossly inequitable.  It requires an individual who is not the father of two children to be responsible for their support for roughly 18 years.  The legislature should look at this issue next session and amend the applicable statute to prevent a recurrence of the inequity that occurred in this case.

The Maryland Department of Human Resources encourages new mothers to have the putative fathers sign the affidavit of parentage at the hospital.  From the DHR website, “Right after your baby is born, you can encourage the father to start the paternity process by signing the Affidavit of Parentage while you are still in the hospital. . . . The hospital staff can help you complete the form free of charge. They can even act as your witness. . . .The hospital staff will send the Affidavit to the Division of Vital Records.”  DHR’s website also proclaims that “Paternity Establishment is Important!”  That may be true but I think it is more important for the state to determine paternity correctly and when paternity is determined in error, to provide a mechanism to correct it.

Friday, April 24, 2015

IKEA AND DIVORCE: MARITAL STRESS IN THE STORE’S AISLES AND AT HOME


A Wall Street Journal article this week questioned, “Can Your Relationship Handle IKEA?”  IKEA, a popular, Swedish furniture retailer, has stores across the United States and three in the Metropolitan D.C. area.  For those who have not shopped at IKEA, furniture purchased at the store typically comes in flat boxes and requires assembly.  IKEA typically packs its boxes with a small Allen wrench which someone in Sweden apparently believes is the one tool you need to build its furniture, no matter what you are building, or how large it is.   The company also includes instructions with its furniture that, supposedly, anyone worldwide can understand.  (I, personally, have never been able to comprehend IKEA’s instructions, even with 19 years of education.  It’s all Swedish to me.)  Although people love the look and design of the furniture, It turns out that shopping at IKEA and building its furniture does not, however, lead to marital bliss. 

The Journal reported a study where 46 percent of couples responded that they found the experience of remodeling their home “frustrating” and an incredible 12 percent of those surveyed admitted that they considered separation or divorce during the renovation and remodeling process.  While those surveyed don’t only shop at IKEA, a major stressor among couples is building furniture, a common requirement for IKEA shoppers.  The Journal also noted that seventeen percent of people surveyed reported that they always got into arguments when assembling furniture.  Thus, nearly one in five couples who buys furniture at IKEA that requires assembly is likely to get into an argument while they are building their new wall unit or bookcase with the little Allen wrench provided by IKEA.  And, apparently a good number of those people are going to think about separating or divorce during that argument.  Perhaps a key word in my Google advertising should be “IKEA”.  If you don’t need my services before you go furniture shopping, there’s a twenty percent chance either you or your spouse is going to want to talk to me after that experience.

What does this mean for you?  Understand that renovation and remodeling projects and building furniture are a source of stress and conflict for couples and communicate with your spouse to avoid conflict during these projects.  You may even want to consider having one spouse build the furniture while the other is out.  Or, better yet, as I have come to do, hire someone to build the furniture that you buy.  It will spare you a lot of frustration and marital strain.  Or, if you are a frustrated IKEA shopper now looking for a divorce attorney:  301-444-4660.

Saturday, April 5, 2014

Pit Bulls and Children

I recently responded to a post on the legal web site Avvo and thought the issue was worth addressing on my blog.  The poster was concerned that his ex-wife, with whom he shares joint custody of a minor child with, was moving in with her boyfriend who owns a pit bull.  The poster was concerned about the pit bull and the safety of his minor child.  He wanted to know whether this constituted grounds for modification of custody.  My response to his query follows:


You raise a very interesting question.  In 2012, the Maryland Court of Appeals (the State’s highest court) issued an opinion in which it held that pit bulls are inherently dangerous animals.  The Court imposed the legal concept of strict liability on owners of pit bulls and landlords who allow tenants to keep them on their property.  The Court’s decision in Tracey v. Solesky is available at this link:  http://mdcourts.gov/opinions/coa/2012/53a11.pdf.

Applying this decision to your facts, I believe that a trial court could be forced to hold that by having your son live in a residence with a pit bull he is being exposed to an inherently dangerous situation.  I think that would be a very important fact for the Court to consider on a Motion to Modify Custody.  In ruling on a motion to modify custody, the Court has to determine what is in your son’s best interest, but, clearly, residing in a house with an inherently dangerous animal is an important factor for the Court to consider.  If I was a Judge – and I’m not – I would probably tell your ex-wife to get rid of the dog or lose custody.  Why put your son’s safety at risk?

I hope this helps.  Good luck.

Friday, December 13, 2013

Enjoy the Holiday Season . . . and Visitation Battles

It's the holiday season.  Generally, this should mean everyone is joyous and happy and looking forward to the good cheer the holidays will bring.  Unfortunately, however, it also often means visitation battles between ex-spouses over who is going to see the kids when and on what holidays.  Despite what a court order or settlement agreement may provide, disputes over visitation frequently arise during the holiday season.  Disagreements may erupt over the language in an agreement, verbal agreements between the parties or whether a holiday visitation schedule trumps the regular access and visitation schedule.  Parents may not agree as to when a holiday schedule starts or one may simply decide that they are going to keep the kids for the holidays, despite what has been ordered or previously agreed to.

A few points to parents during the holidays from a veteran of custody battles between parents: 

  1. Abide by the agreement or order that has been entered in your case.  Your failure to do so may have negative consequences in the future.  Judges don't typically like parties who don't follow set schedules during the holidays and your decision to not follow the schedule may affect your access or visitation in the future.
  2. Don't plan on getting in front of a Judge before the holidays if a dispute arises.  Holiday visitation disputes are seldom considered an "emergency" matter warranting immediate attention by Maryland Judges.
  3. Think of your children and the impact your decision will have on them before you decide not to follow a court-ordered or agreed upon schedule.  Parental discord and turmoil over access and visitation is never a positive for them, especially during the holidays.  If you don't like the schedule, seek to change it for next year.
If you have any questions regarding this post, or if any issues arise over the holidays season, please feel free to contact our offices.

Tuesday, August 27, 2013

(Adulterous) Sex in the City: DC Ranks Second in Nation for Mistresses

District of Columbia divorce lawyers rejoice.  According to Ashley Madison, the web site dedicated to promoting extra-marital affairs, D.C. ranks second in the nation for the number of mistresses, trailing only Los Angeles.
 
Incredibly, the Nation’s Capital, where at least half the lawmakers are sent to protect and promote traditional American family values, is a hotbed of marital infidelity.  Los Angeles, which is influenced by the moral promiscuity of Hollywood, is understandable, but DC, the home of perceived boring wonks, policymakers and government bureaucrats?
 
To find out why there are so many philandering men in Washington (Ashley Madison’s survey only reported on the number of mistresses, not unfaithful wives), I spoke to clinical psychologist Dr. Nicole Stern, who also happens to be my wife.  According to Nicole, it is not surprising that so many Washingtonian males are having affairs because wealth and power tend to foster both a sense of narcissism and entitlement among the men who possess those attributes.  Nicole stated:  “Having money and power frequently fosters the false belief that one is entitled to having what he wants, when he wants it.  Narcissists often think they are above the law and above respecting their marriage vows.  In the case of elected officials, being revered by young staffers, together with the fact that they are often physically separated from their spouses, creates an environment that is ripe for straying and cheating.  And this environment extends throughout the City, to the corridors of K Street and beyond.”

Is your rich and powerful husband claiming he’s working late?  Maybe he is. Or maybe he’s not.

bruce@sternlegal.net
www.freestatedivorce.com

Friday, August 16, 2013

Your Fashion Style Will be Judged - Fashion Faux Paus in Court Revisited

Back in 2011, I wrote a blog about courtroom attire and how inappropriately dressed litigants, witnesses and others appearing before the Court in Montgomery County, Maryland were.  (Courtroom Attire:  Avoid a Fashion Faux Paus.)  I suggested that if you were appearing before the Court you should dress appropriately, meaning slacks and long sleeve shirts for men and conservative attire for women.

Apparently, I was not the only one noticing the decline in fashion decorum in the Courtroom.  In Jefferson County, Illinois, the Sheriff has banned individuals from wearing muscle shirts, halter tops and other inappropriate clothingThe Jefferson County Sheriff joins judges from Kent County, Delaware who have similarly banned inappropriate attire.  Judges in Detroit share a similar view.

People, just because Southwest Airlines lets you wear it on a plane, does not mean that it is appropriate for Court.  As I advised in 2011, appearances matter.  Look nice for Court.  It sends a message.

Bruce L. Stern, Esq.
bruce@sternlegal.net
www.sternlegal.net
www.freestatedivorce.com

Wednesday, July 31, 2013

CARLOS DANGER DIDN'T LISTEN TO ME

Former Congressman and New York Mayoral Candidate Anthony Weiner – aka Carlos Danger - did not follow the advice I give my clients.  I tell all my family law clients, and prospective clients, the same thing when I first meet with them:  Don’t Do Anything Stupid.  It’s a mantra that I try and drill into their head throughout my representation.  If you do something stupid, I advise clients, it is going to come back to haunt you and, one day, a Judge may peer at you over his or her bench after hearing testimony of your actions and wonder what the *&%$ you were thinking (and why your attorney did not advise you against this course of conduct).

Congressman Weiner’s actions surely fall within the category of stupid.  Does anyone really think that a married man, with a wife and baby at home, sexting with a 22 year old girl is not stupid?  Let alone someone running for elective office who had been publicly caught doing this before.
Weiner’s actions – and public humiliation – remind me once again to proffer, free of charge, the best advice an attorney can give any family law client:  Don’t do anything stupid. 
Before engaging in any course of conduct ask yourself how it would look if details of what you were doing were discovered by your spouse or family.  In this electronic age, it is extremely difficult to do anything without it being recorded, taped or electronically stored.  Google maintains unfathomable amounts of information about its users, including Gmail records and even the YouTube videos you have viewed, and electronic information may be easily discovered during the course of litigation.  A client’s own words, including those written in texts and e-mails or left on a cell phone, are often the greatest and most damaging evidence available to lawyers in divorce litigation.  Who can forget the voicemail that an angry Alec Baldwin left for his daughter that was later disclosed and heard by the world?  Think that voice mail helped during the custody battle?
Simple advice people:  Don’t do anything stupid.  Carlos, are you listening?