Of Counsel, Z Family Law, LLC Rockville, Maryland Family Law Attorney Serving MontgomeryCounty and FrederickCounty
Third Party Visitation Rights (e.g., Grandparents, Siblings, Domestic Partners)
Often third parties such as grandparents, stepparents, and domestic partners of a biological parent have established a relationship with a minor child and desire to continue that relationship through regular contact with the child. The standards considered by the court in determining whether to award third parties visitation access to a minor child are discussed below. Essentially, the natural parent's proposed schedule of access is deemed to be presumptively in the minor child's best interest, and a third party has to show either parental unfitness or exceptional circumstances warranting visitation or custody rights exist. If the third party demonstrates either parental unfitness or exceptional circumstances, then the court will consider what schedule would be in the minor child's best interest. However, Maryland recognizes de facto parenthood. Conover v. Conover, 450 Md. 51 (2016) (A de facto parent has standing to contest custody or visitation and does not have to show parental unfitness or exceptional circumstances before a trial court may apply a child's best interests analysis.)
FL § 9‑102 provides that 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 interests of the child, grant visitation rights to a grandparent.The statute applies to intact family situations also, there is no presumption in favor of grandparent visitation. In Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007), the Court of Appeals held that “there must be a finding of either parental unfitness or exceptional circumstances demonstrating the current or future detriment to the child, absent visitation from his or her grandparents, as a prerequisite to application of the best interests analysis. Accordingly, we overrule the portions of Fairbanks, Maner, Beckman, Herrick, and Wolinski that are inconsistent with this holding.” The Court of Appeals in Koshko noted in footnote 23 that “At any evidentiary hearing on a petition, the petitioners must produce evidence to establish their prima facie case on the issue of either parental unfitness or exceptional circumstances as well as evidence sufficient to tip the scales of the best interests balancing test in their favor.” In Burak v. Burak, 231 Md. App. 232 (2016) the trial court's award of sole legal and physical custody to paternal grandparents was affirmed. The appellate court said that "in determining whether a parent is unfit - sufficient to overcome the presumption favoring parental custody in a third-party custody dispute - the court may consider six factors, which include: neglect of parental duties; abandonment of the child; physical or mental abuse or injury to the child; parental emotional or mental illness impacting the parent's ability to care and provide for the child; parental renunciation of the duty to care and provide for the child; and parental conduct or behavior detrimental to the child's welfare.
Maryland recognizes de facto parents, overuling Janice M. v. Margaret K., 404 Md. 661 (2008). Conover v. Conover, 450 Md. 51 (2016) (A de factor parent has standing to contest custody or visitation and does not have to show parental unfitness or exceptional circumstances befora a trial court may apply a child's best interests analysis.) In recognizing de facto parenthood, the Maryland Court of Appeals used a four factor test to determine a third party's de facto parent status:
(a) That the biological or adoptive parent consented to and fostered the non-biological or non-adoptive parent's formation and establishment of a parent-like relationship with the child;
(b) That the non-biological or non-adoptive parent lived together in the same household;
(c) That the non-biological or non-adoptive parent assumed obligations of parenthood by taking significant responsibility for the child's care, education, and development, including contributing toward the child's support, without expectation of financial compensation;
(d) That the non-biological or non-adoptive parent has been in a parental role for a length of time sufficient to have established with the child a bonded dependent relationship parental in nature.
A natural parent’s proposed schedule of visitation is entitled to a rebuttable presumption that it is in the best interests of the child. Wolinski v. Browneller, 115 Md. App. 285, 693 A.2d 30 (1997).In Brice v. Brice, 133 Md. App. 302, 754 A.2d 1132 (2000), the Court of Special Appeals reversed a trial court’s order establishing a visitation schedule between the paternal grandparents and the child that was against the mother’s wishes.Under the U.S. Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.Ed. 49 (2000), application of FL § 9-102 violated mother’s constitutional due process right, i.e. her fundamental right to rear her child, where there was no showing she was unfit and mother did not oppose some visitation with the paternal grandparents.The appellate court did not invalidate the Maryland statute. The Court of Special Appeals, in In re: Tamara R., 136 Md. App. 236, 764 A.2d 844 (2000), analyzed Troxel v. Granville and applied the principles to a sibling visitation matter. “We conclude that the state’s interest in the protection of a minor child who has been removed from her parent’s care is sufficiently compelling to justify overriding her parent’s opposition to visitation with her sibling, if there is evidence that denial of sibling visitation also would harm the sibling whom the separated child seeks to visit.” In Herrick v. Wain, 154 Md.App. 222, 838 A.2d 1263 (2003), the Court of Special Appeals affirmed a Circuit Court for Montgomery County Order granting maternal grandmother visitation; trial court had considered surviving father’s concerns and the evidence rebutted presumption that father’s preferred schedule was in child’s best interest. See also Frase v. Barnhart, et. al., 379 Md. 100, 840 A.2d 114 (2003).
Both parents are necessary parties to the third party's action, pursuant to Maryland Rule 2‑211.
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John S. Weaver, Of Counsel
Z Family Law, LLC 51 Monroe Street, Suite 1501, Rockville, MD 20850