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Grandparent rights are
governed by § 9-102 of the Maryland Statute:
A recent
appellate court decision has made it
increasingly more difficult for grandparents
to have visitation rights.
Glen Koshko, et ux. v. John Haining, et ux.
,
No. 35, Sept. Term 2006
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
interests of the child, grant visitation
rights to the grandparent.
Maryland
Courts can and do order visitation to
grandparents provided that the Court
determines that such visitation is in the best
interest of the children. The Court will look
at various factors such as:
1. Is it in the best interest of the child.
2. What is the current and past relationship
of the child with the grandparents.
3. What impact (positive or negative) will the
visitation have on the child.
4. Will the visitation impact upon the
educational and/or physical activities of the
child.
5. To determine what
is in the child’s best interest, the Court
will consider various factors, including the
nature of the child’s relationship with the
parents and grandparents, the potential
benefits and detriments to granting
visitation, the effect grandparent visitation
would have on the child’s attachment to the
family, the physical and emotional health of
the parties, and the stability of the living
and schooling arrangements for the child.
However, the Court now seems to place the
decision on what is in the children's best
interest squarely in the hands of the
parents.
"
This
process is generally left to the discretion
of parents,who are presumed to act in the
best interests of their children. The Court
found this directinterference also to be
substantial in nature.
Although visitation matters may prove to be
lessweighty than custody and adoption
matters in the non-constitutional realm, for
purposes of substantive due process
analysis, third party visitation disputes
impede just as substantially upon the
fundamental right to parent as do custody
and adoption disputes. In order to remedy
this lack of narrow tailoring , the Court
again employed the principle of
constitutional avoidance and applied the GVS
with a judicial gloss. This gloss requires a
threshold finding of parental unfitness or
exceptional circumstances demonstrating the
detriment that has or will be imposed on the
children absent visitation by their
grandparents before the best interests
analysis may be engaged. This parental
unfitness/exceptional circumstances test was
imported from the third party custody case
McDermott v.
Dougherty, 385 Md. 320, 869 A.2d 751
(2005). The Court reasoned that custody and
visitation matters generally have been
decided under the same standards and that
the fundamental right to parent is equally
at risk from undue state interference in the
context of both custody and visitation
determinations. Accordingly, the parental
unfitness/exceptional circumstances
safeguard imposed in third party custody
determinations is appropriately applied in
third p arty visitation matte rs as well.
The Court thus overruled its precedent in
Fairbanks v. McCarter,
330 Md. 39, 622 A.2d 121 (1993), and its
progeny that held such threshold findings
unnecessary in third party visitation cases.
The Court remanded the case for application
of the new threshold requirement.
These are some of the factors used in
determining visitation. Always check with an
attorney about your specific fact situation.
By Stuart H.
Grozbean, Esq.
