Maryland Third Party Custody – Can I ask for custody during the parents’ custody case?

Updated:  January 2021

Third party custody is one of the fastest developing areas of Maryland law, seeing many major changes since 2016.  This series of articles explores these developments and raises questions about where this area of the law is heading.

This series discusses:

• What is Third Party Custody?
• What’s a De Facto Parent?
• Exceptional Circumstances
• Unfit Parents
• Participating as a Third Party in a Custody Case
• Step-Parents
• De Facto Parents & Multi-Parent Families
• Grandparent Visitation
• The Future

On August 29, 2017 in Burak v. Burak, the highest court in Maryland decided that grandparents can request permission to participate in an existing an active custody case to request custody of a grandchild. While focusing on grandparents, there is no reason that this would not also apply to any third party seeking custody and/or visitation.

This is done by way of intervention, meaning asking the court in a written motion and being granted permission by the court to participate as a party in the case.  This is allowed by Maryland Rule 2-214(b)(1), which states:  “Upon timely motion a person may be permitted to intervene in an action when the person’s claim or defense has a question of law or fact in common with the action.”

A grandparent granted the right to intervene, participate, and make his/her own written request for custody or visitation.

In grandparent custody and visitation cases, there is a rebuttable presumption that it is in a child’s best interests to be in the care, custody, and decision-making authority of the child’s parent, not a non-parent.  This applies in both custody and visitation cases.  A rebuttable presumption is an assumption a court is required to make, that is true unless proven otherwise.

Therefore, the grandparent’s written request for custody or visitation must contain “detailed factual allegations…that, if true, would support a finding that both biological parents are either unfit or that exceptional circumstances exist and that the best interests of the child would be served in the custody of the third-party”.  If not included in the initial written document, the grandparent’s request may be dismissed or rejected by the court.

A grandparent not asking for custody or visitation may participate in the parents’ custody case if called as a witness to testify at trial, or if interviewed by any court-appointed attorney for the child or any court-appointed custody evaluator.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

You can follow her for discussion, news, and developments in Maryland family law on LinkedIn, Facebook, Instagram, Twitter, LindsayParvis.com, and YouTube.