When a court deciding the custody or visitation of a child, the court must balance what is best for the child. The court’s decision will depend on your role and the role of the other party.
In Maryland, the law allows grandparents to seek the court for visitation rights. Grandparents can also ask for minor custody. But if the child’s grandparent is asking for custody or visitation, they will be treated as a third party, unless it can be proved that they are the de facto guardian.
When there is a dispute between a de facto parent and a third party, the court might decide based on the best interests of the minor, or in favor of the de facto parent; except the third party can prove that exceptional circumstances exist or that the de facto parent is unfit.
When the third party proves exceptional circumstances or the other party is unfit, it does not mean they can gain custody by default.
To determine exceptional circumstances, the court shall take into account factors such as:
- The time period for which the child has been away from the biological parent.
- The age of the child when the third party started to take care.
- The possible emotional effect it would have on the minor if there was a change of custody.
- The period of time which elapsed before the guardian sought to get back the child.
- The nature and strength of the ties between the child and the third party custodian.
- The intensity and genuineness of the guardian’s desire to have the child.
- The stability and certainty of the child’s future when in custody of the guardian.
In determining if a biological parent is unfit, the court shall consider the following:
- The guardian has ignored the child thereby neglecting the child’s welfare due to his or her inability to discharge the parental duties.
- The child has been abandoned by the guardian.
- There is evidence that the guardian or another person allowed by the guardian inflicted physical or mental injury on the child, including, but not limited to physical, sexual, or emotional abuse.
- The guardian suffers from an emotional or mental illness that has a detrimental impact on the guardian to provide proper care and provide for the child.
- The guardian exhibits renunciation of his or her duties to care and provide for the child.
- The guardian has engaged in behavior or conduct that is detrimental to the child’s welfare.
What is a parent?
What is a de facto parent?
A de facto parent means someone the court treats like a guardian, owing to the person’s relationship with the minor.
De facto parent is:
- The legal parent agreed to and fostered the relationship with the child;
- Must have lived with the child;
- Perform parental functions for the minor to a significant degree; AND
- A parent-child bond must have been forged.
Who is the third party?
Third party means any person other than a guardian or de facto parent. Generally, grandparents and other close family members and friends are termed as the third party.
Grandparent visitation rights are codified in the Maryland Annotated Code, Family Law Article § 9-102.
The statute was amended in 1993, and now reads as follows:
“An Equity Court may: consider a Petition for reasonable visitation of a grandchild by a grandparent; and if the Court finds it to be in the best interest of the child, grant visitation rights to a grandparent.”
However, it is doubtful if a grandparent would be successful in petitioning for visitation over the objection of the parents unless the grandparent can prove that the parent is unfit or exceptional circumstances exist to indicate that the lack of grandparent visitation will be harmful to the minor. Koshko v. Haining, 398 Md. 404, (2007). The Court determined that “a threshold showing of either parental unfitness or exceptional circumstances indicating that the lack of grandparental visitation has a significant deleterious effect upon the children who are the subject of the petition” was required before a court could reach the best interests analysis.
In reaching this conclusion, the Court explained that “visitation is a species of custody, albeit for a more limited duration.”
The Court emphasized that although “the grant or modification of visitation involves a lesser degree of intrusion on the fundamental right to guardian than the assignment of custody,” it did not warrant a lesser degree of constitutional scrutiny.
In visitation cases, the court will always consider the best interest of the child in deciding whether to grant visitation. Generally, the wishes of the custodial guardian will be taken into account and presume that any schedule for visitation presented by the guardian is in the best interest of the child.
The Maryland Court of Special Appeals, citing Troxel, held that the trial court violated a mother’s Constitutional rights when it ordered her to comply with an increased visitation order between her child and the paternal grandparents. Brice v. Brice, 133 Md. App. 302 (2000).
In Brice, the mother did not contest the visitation between the daughter and the grandparents but objected to the court imposing a schedule. The court did not find that Fam. Law § 9-102 is unconstitutional but found that application of the statute was improper because no court had found the mother unfit and visitation had not been denied.
Therefore, in Maryland, grandparents can file a petition for visitation under the Maryland Annotated Code, Family Law Article, § 9-102. But the petition will be considered if the parent is found to be unfit, or that exceptional circumstance existed or the guardian denied grandparent visitation totally.
The Court of Appeals in the year 2007 made it clear that parents have a fundamental right to control the upbringing of their children and that grandparents shall be awarded visitation only if they prove that the parents are unfit or exceptional circumstances exist.
“To preserve fundamental parental liberty interests, we now apply a gloss to the Maryland Grandparent Visitation Statute requiring a threshold showing of either parental unfitness or exceptional circumstances indicating that the lack of grand parental visitation has a significant deleterious effect upon the children who are the subject of the petition.”
Our Maryland child custody lawyers can help you with your Maryland grandparents’ rights case. Call us at 888-437-7747. Our Maryland child custody attorneys can help you. C