MARYLAND COURT RESTRICTS GRANDPARENT RIGHTS
by Stuart Muntzing Skok, Esquire

In 1984, the Maryland Legislature recognized the importance of grandparent visitation and enacted a Grandparent Visitation Statute to afford grandparents reasonable visitation in the best interests of the children. For more than twenty (20) years, Maryland Courts have afforded grandparents reasonable visitation with their grandchildren when it serves the grandchildren’s best interests, recognizing the unique benefits grandparents can give to a child.

On January 12, 2007, the Court of Appeals of Maryland in Koshko v. Koshko, overruled its own prior decisions and essentially eliminated the grandparents’ rights that have existed for more than twenty (20) years. The Court imposed a threshold requirement requiring grandparents to prove parental “unfitness” or “exceptional circumstances” before the Court can consider grandparent visitation. This threshold requirement was previously applicable only in third party custody cases to limit the court from taking custody of a child away from a parent except in extreme cases. Now, grandparent visitation will only be awarded in extreme cases.

The Court’s rationale for applying the same standard for grandparent visitation and custody cases is that:

Although there may be a difference in the degree of intrusion, it is not a difference of constitutional magnitude. Visitation, like custody, intrudes upon the fundamental right of parents to direct the ‘care, custody and control’ of their children.

In other words, the Court believes that “any” intrusion on a fit or unfit parent’s rights to raise their child must be treated equally, regardless of what is in a child’s best interest.

By this decision, the Court has put parent’s rights first and children’s best interests second, despite the fact that the “best interest” standard has guided the Court for decades in the protection of minor children. Now a grandparent must first prove a parent is “unfit” to have custody of their child or that there are “exceptional circumstances.

“Unfitness” may be found in cases of parental abuse, neglect, drug use or incarceration or other extreme actions by the parents that render the parent unfit to care for the child. “Exceptional circumstances” requires a showing of actual harm to a child, as opposed to showing the benefits afforded by grandparent visitation under a “best interest” standard

Therefore, it is possible that if a grandparent proves a parent is “unfit,” the Court will maintain custody of the child with their “unfit” parent and consider some grandparent visitation, typically once per month – a remedy that will not protect the grandchild from their “unfit” parent. And, generally, grandparents do not seek custody of their grandchildren.

Prior to the decision in Koshko, Maryland and the United States Supreme Court held that, while there was a presumption that the parent’s decision about visitation should control, that presumption was rebuttable if the grandparents could show the decision was not in the best interest of the grandchild. Based on that standard, grandparents were often successful in getting awards of visitation from Maryland Courts. Now, under Koshko, grandparents must first show unfit/exceptional circumstances before the Court applies the rebuttable presumption.

For those grandparents who are denied visitation with their grandchildren and are considering seeking legal relief, the likelihood of their success is slim and will no longer rest on what is in their grandchildren’s best interests. Children’s best interests are now secondary to what a fit or unfit parent desires for the child.

The only hope for the rights of grandparents and grandchildren is if the Maryland Legislature decides to modify the Maryland Grandparent Visitation Statute in light of Koshko. In doing so, the Legislature could accept the rebuttable presumption in favor of the parents held under prior law while declining the extreme threshold requirement of unfitness/exceptional circumstances under Koshko. This way, the Legislature would protect parents’ rights without sacrificing the best interests of children.