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:
- Is it in the best interest of the child.
- What is the current and past relationship of the child with the grandparents.
- What impact (positive or negative) will the visitation have on the child.
- Will the visitation impact upon the educational and/or physical activities of the child.
- 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.