Grandparent and Non-Parents Visitation and Custody Rights

Topics on this page

• Who is a parent?
• Who is a de facto parent?
• Who is a third party?
• Grandparents
• Stepparents
• Parental Unfitness and Exceptional Circumstances
• How does the court decide the case? Your role and the other party's role.

When a court decides a dispute about child access (custody or visitation), the court 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?

Who is a parent?

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

Who 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. 

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

1. The legal parent(s) consented to and fostered the relationship between you and the child (NOTE: Where there are two legal parents, both must have consented to and fostered the relationship OR you must show that a non-consenting legal parent is unfit or exceptional circumstances exist);
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: E.N. v. T.R., 474 Md. 346 (Court of Appeals 2021); Conover v. Conover, 450 Md. 51 (Court of Appeals 2016) 

Who 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.

Grandparents

Maryland law allows grandparents to ask the court for visitation rights. Grandparents can also ask for custody. 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.

A grandparent is unlikely to be successful in petitioning for visitation over the objection of the parents unless the grandparent can 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.

Read the Law: Maryland Code, Family Law, Section 9-102

Read the case: Koshko v. Haining, 398 Md. 404 (Court of Appeals 2007)

Stepparent

Generally, if stepparent has not adopted the child or has not been declared as a child's guardian, then the stepparent does not have parental rights or obligations following a divorce. Instead, courts will consider the stepparent to be a third party unless the stepparent can show exceptional circumstances exists or that the other party is unfit. Another avenue is if the stepparent can show that they are a de facto parent  

Read the Law: Conover v. Conover, 450 Md. 51 (Court of Appeals 2016); Kpetigo v. Kpetigo, 238 Md.App. 561 (Court of Special Appeals 2018)

Parental Unfitness and Exceptional Circumstances

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. For third parties (this includes grandparents), there is a threshold requirement that the third party proves either the unfitness of the legal parents or exceptional circumstances to overcome the general presumption in favor of the legal parents.

When determining whether a biological parent is unfit, the court may consider whether:

1. The parent has neglected the child by manifesting such indifference to the child's welfare that it reflects a lack of intent or an inability to discharge his or her parental duties
2. The parent has abandoned the child
3. There is evidence that the parent inflicted or allowed another person to inflict physical or mental injury on the child, including, but not limited to physical, sexual, or emotional abuse
4. The parent suffers from an emotional or mental illness that has a detrimental impact on the parent's ability to care and provide for the child
5. The parent otherwise demonstrates a renunciation of his or her duties to care and provide for the child
6. The parent has engaged in behavior or conduct that is detrimental to the child's welfare.

The factors listed above are guides to help the court determine whether a parent is unfit. There may be other factors that may be relevant in specific cases.

Read the law: Burak v. Burak, 455 Md. 564 (Court of Appeals 2017)

When determining whether exceptional circumstances exist, the court may consider the following factors:

1. The length of time the child has been away from the biological parent
2. The age of the child when care was assumed by the third party
3. The possible emotional effect on the child of a change of custody
4. The period of time which elapsed before the parent sought to reclaim the child
5. The nature and strength of the ties between the child and the third party custodian
6. The intensity and genuineness of the parent's desire to have the child
7. The stability and certainty as to the child's future in the custody of the parent

The factors listed above are guides to help the court determine whether exceptional circumstances exist, and there may be other factors that may be relevant in a specific situation.

Read the law: McDermott v. Dougherty, 385 Md. 320 (Court of Appeals 2005)

How does the court decide your case? Your role and the other party's role.