When a court decides a dispute about child access (custody or visitation), it must balance what is best for the child, with a parent’s constitutional right to direct the way the child is raised.

How the court decides the case depends on your role, and the role of the other party. Are you, and the other party, the child’s parents, de facto parents, or third parties?

Grandparents

Maryland law allows grandparents to ask the court for visitation rights. Grandparents can also ask for custody. However, if you are the child’s grandparent asking for custody or visitation, you will be treated as a third party, unless you can prove that you are a “de facto” parent.

Your role, and the other party's role

 

You are a:
Parent

You are a:
De facto parent

You are a:
Third party

Other party is a:
Parent

If you are a parent or de facto parent, and the other party is a parent or de facto parent, the court will decide solely based on the “best interests of the child.”

The court will decide for the other party unless you show “exceptional circumstances,” or that the other party is “unfit.”

Other party is a:
De facto parent

(?) See below

Other party is a:
Third party

The court will decide for you unless the other party shows “exceptional circumstances,” or that you are “unfit.”

(?) See below

The court will decide solely based on the “best interests of the child.”

(?) In a dispute between a de facto parent and a third party, it is not clear what the court would decide.  The court might decide solely based on the “best interests of the child,” or the court might decide in favor of the de facto parent (unless the third party can show that “exceptional circumstances,” or that the de facto parent is “unfit.”) 

If a third party proves "exceptional circumstances" or that the other party is "unfit," they do not automatically win.  Instead, that "levels the playing field," and the court will decide solely based on the "best interests of the child."

What is a parent?

"Parent" means a "legal parent."  There are several ways to establish legal parentage.

What is a de facto parent?

A de facto parent is someone the court treats like a parent, due to the person’s relationship with the child.  This includes anyone who meets the requirements. 

De facto parent: The court will consider you a de facto parent, if you can show that:

  1. The legal parent consented to and fostered the relationship between you and the child;
  2. You have lived with the child;
  3. You perform parental functions for the child to a significant degree; AND
  4. A parent-child bond has been forged.  (To prove this, you may need to show that the bond has formed over enough time.)

Read the Law: Conover v. Conover, http://www.mdcourts.gov/opinions/coa/2016/79a15.pdf

What is a third party?

Third party means anyone other than a parent or de facto parent.  This usually includes grandparents and other close family members and friends.

Historical Background

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:

  1. consider a Petition for reasonable visitation of a grandchild by a grandparent; and
  2. if the Court finds it to be in the best interest of the child, grant visitation rights to grandparent." Read the Law: Maryland Code, Family Law, Section 9-102

However, a grandparent is unlikely to be successful petitioning for visitation over the objection of the parents unless the grandparent is able to show that the parent is unfit or exceptional circumstances exist to indicate that the lack of grandparent visitation will have a harmful effect upon the child who is the subject of the petition. Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007).

Court Rulings

As in all visitation cases, the court will always consider the best interest of the child in deciding whether to grant visitation. Generally, the court will honor the wishes of the custodial parent and presume that any schedule for visitation presented by the parent is in the best interest of the child.

The Supreme Court addressed the issue of third party visitation in Troxel v. Granville, 120 S.Ct. 2054 (1999).  In a case brought by grandparents who sought an expanded visitation schedule, the court held unconstitutional a Washington state statute that allowed a court to award visitation to any third party at any time based solely on the best interest of the child standard. 

Subsequently, 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.  See Brice v. Brice, 133 Md. App. 302 (2000).

In Brice, the mother did not oppose or deny visitation between the daughter and the grandparents but she did object to the court imposing a schedule. The court did not find that Fam. Law § 9-102 is unconstitutional.  Instead, the court found that application of the statute was improper because no court had found the mother unfit and visitation had not been denied.

 Thus, in Maryland, grandparents can still file a petition for visitation under Maryland Annotated Code, Family Law Article, § 9-102.  However, it appears that the petition will only be considered if the parent has been found unfit, exceptional circumstances existed or the parent denied grandparent visitation all together.

In 2007, the Court of Appeals affirmed that parents have a fundamental right to control the upbringing of their children and that grandparents may only be awarded visitation only if they show 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 grandparental visitation has a significant  deleterious effect upon the children who are the subject of the petition."

Koshko v. Haining, 398 Md. 404, 441 (2007).

Additional Resources

Read more about grandparent visitation in:

John Fader & Richard Gilbert, Maryland Family Law § 6-6 (4th ed. 2005)

Source: 

http://www.peoples-law.org/contributors

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