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Stuart Muntzing Skok
Case Notes:
GRANDPARENT VISITATION
(Visitation Standard is Custody Standard)
By: Stuart Muntzing Skok, Esq.
Koshko v. Haining, No. 35, Sept. Term 2006, 2007 Md. Lexis 10
Section of Family & Juvenile Law Newsletter, May 2007
On January 12, 2007, the Court of Appeals essentially
eliminated the grandparent visitation rights that have existed for
twenty (20) years in Maryland (thankfully, after my grandparent
visitation trial on January 2, 2007). In 1984, the Maryland
Grandparent Visitation Statute, Family Law Article, § 9-102, was
enacted to afford grandparents “reasonable” visitation when it
serves the grandchildren’s “best interests.” Fairbanks v.
McCarter, 330 Md. 39, 662 A.2d 121 (1993), set forth six (6)
factors to determine whether grandparent visitation is in the
grandchildren’s best interests. The United States Supreme Court in
Troxel v. Granville, 530 U.S. 57, 120 Ct. 2054 (2000),
subsequently established a rebuttable presumption that parental
decisions regarding grandparent visitation are in the children’s
best interest (e.g. before the Fairbanks factors can be
considered).
The Maryland Court of Special Appeals in Koshko v.
Haining, 168 Md. App. 556, 897 A.2d 866 (2006) (“Koshko I”),
upheld the trial court’s grant of grandparent visitation and held
that the Maryland Grandparent Visitation Statute is to be
interpreted to contain the Troxel rebuttable presumption.
Grandparents were regularly awarded reasonable visitation until the
Court of Appeals reversed Koshko I and overturned the Fairbanks
line of cases.
Koshko v. Haining, No. 35,
Sept. Term 2006, 2007 Md. Lexis 10
ISSUES ON APPEAL:
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Is the Maryland Grandparent
Visitation Statute facially unconstitutional for failing to
include a presumption that parental decisions regarding their
children are in the children’s best interests?
-
Was the Maryland Grandparent
Visitation Statute unconstitutionally applied to the Koshkos
absence a threshold finding of parental unfitness or exceptional
circumstances?
HOLDINGS:
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NO. The Maryland
Grandparent Visitation Statute may be supplemented by judicial
interpretation with an inferred presumption that parental
decisions regarding their children are in the children’s best
interests, under the canon of constitutional avoidance.
Therefore, under Troxel’s interpretation of the due
process safeguards that must accompany a grandparent visitation
statute, the Maryland Grandparent Visitation Statute is
construed to include the application of the parental
presumption.
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YES. Under strict scrutiny
analysis, the Grandparent Visitation Statute was
unconstitutionally applied to the Koshko’s fundamental right to
parent. The Grandparent Visitation Statute imposed a “direct and
substantial” interference with the Koshko’s decisions regarding
visitation, which decisions are presumed to be in the children’s
best interests. The Court held that although there may be a
difference in the degree of intrusion, visitation, like custody,
intrudes upon the fundamental right of parents to care for their
children. Therefore, the requirement to establish parental
unfitness or exceptional circumstances in third-party custody
cases must apply in third-party visitation cases, despite the
lesser degree of intrusion on parental rights. In order to
remedy the lack of narrow tailoring for the intrusion on
parental rights, the Court again applied the canon of
constitutional avoidance by holding that the Grandparent
Visitation Statute is construed to require a threshold finding
of parental unfitness or exceptional circumstances as a
prerequisite to the application of a best interest analysis.
The Court of Appeals reversed Koshko
I and overturned five (5) cases to the extent they are inconsistent
with the holding: Fairbanks, supra, Maner v. Stephenson, 342
Md. 461, 677 A.2d 560 (1996), Beckman v. Boggs, 337 Md. 688,
655 A.2d 901 (1995), Herrick v. Wain, 154 Md. App. 222, 838
A.2d 1263 (2003), and Wolinski v. Browneller, 115 Md. App.
285, 693 A.2d 30 (1997). The case was remanded to the Baltimore
County trial court for further proceedings to apply the
unfitness/exceptional circumstances threshold requirement.
BACKGROUND/PROCEDURAL POSTURE:
Maternal grandparents, John and
Maureen Haining, sued for visitation with their three (3)
grandchildren, Kaelyn, Haley, and Aiden, children of their daughter
and son-in-law, Andrea and Glen Koshko. Kaelyn was raised with her
mother in the grandparents’ home in New Jersey for the first three
(3) years of her life. The grandparents were active participants in
Kaelyn’s upbringing.
Andrea and Kaelyn moved out of the
grandparents’ home in September of 1997, and Andrea married Glen
Koshko in 1998. In 1999, the Koshkos moved to Baltimore County and
had two (2) more children. Despite the distance between the parties,
the grandparents maintained a very close relationship with the
grandchildren, with monthly visits and regular communications. In
October of 2003, the grandparents’ visitation suddenly ended after a
bitter fight between the grandparents and Glen Koshko over Glen’s
treatment of his terminally-ill mother. When the grandparents’
efforts to reconcile with the Koshkos and reestablish visitation
with the grandchildren failed, in April of 2004, the grandparents
filed suit in the Circuit Court for Baltimore County.
The trial court awarded the
grandparents visitation, finding it to be in the grandchildren’s
best interests, establishing a schedule of four-hour visits every
forty-five (45) days and quarterly overnight visits, plus counseling
for the parties. The Koshkos lost their Motion for New Trial and
appealed. The Court of Special Appeals affirmed the trial court’s
visitation award, finding that the Grandparent Visitation Statute
was neither facially unconstitutional nor as applied to the Koshkos.
The Court of Special Appeals relied
on the principle of constitutional avoidance and held that the
Grandparent Visitation Statute implicitly contains the presumption
that parents act in the best interest of this children, pursuant to
Troxel, supra. The Court found that the grandparents had
successfully rebutted the presumption in favor of the parents’
decision to terminate visitation, based on evidence about the strong
bond between the children and their grandparents and evidence that
the parents had ceased the grandparent relationship because of a
family fight unrelated to the children’s best interests.
The Court of Special Appeals
disagreed with the Koshkos’ argument that there must be a threshold
finding of parental “unfitness” or “exceptional circumstances” in
order to consider grandparent visitation – the standard applicable
in third party custody cases under McDermott v. Dougherty,
385 Md. 320, 869 A.2d 751 (2005).
The Koshkos petitioned the Court of
Appeals, which granted writ of certiorari to consider the parents’
substantive due process challenge to the Grandparent Visitation
Statute.
Practice Considerations:
For those who are wondering “what
happens to my cases now?” See Footnote 23:
In affected cases pending at the time
this opinion is filed, where appropriate, courts may allow
amendments to pleadings or the presentation of additional evidence
in light of the holdings announced here. In cases filed after this
opinion, the petitioners, in order to avert or overcome a motion to
dismiss their petition, must allege a sufficient factual predicate
in the petition so as to present a prima facie case of unfitness or
exceptional circumstances, as well as invoking the best interest
standard….[citations omitted]. 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. We
appreciate that there may be circumstances where evidence proffered
for the satisfaction of a threshold element also may have relevance
in the determination of the best interest standard. We do not intend
to foster a “trial within a trial.” At the end of the day,
petitioners, in order to be successful, must shoulder the burdens to
adduce at least a prima facie case on both the unfitness/exceptional
circumstances standard and the best interests standard.
Therefore, all cases resolved before
this case are not affected by the new law. For new cases, if you
represent parents, a Motion to Dismiss for failure to state a claim
is your first line of defense. If you represent grandparents,
consider seeking custody rather than visitation given that the same
standard applies. And for those who disagree with the Court of
Appeals, lobby your legislative representatives to amend the
Maryland Grandparent Visitation Statute to eliminate the threshold
requirement, while maintaining the Troxel presumption and Fairbanks
factors.
Stuart Muntzing Skok is a principal in the Law Firm of
Gimmel, Weiman, Ersek, Blomberg & Skok, P.A. located in Gaithersburg, Maryland,
focusing her practice in the area of family law. If you have any
questions related to this article, she can be reached at (301)
840-8565 or sskok@gweblaw.com.
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