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

When a grandparent or other third party wants custody of or visitation with a child, the grandparent must prove either that the parents are unfit or that there are exceptional circumstances. Once proven, then the court can consider what custody or visitation arrangement is in the child's best interests.

What are "exceptional circumstances"?

Maryland has set out the following factors to guide the court's consideration and decision about whether exceptional circumstances exist:

(1) the length of time the child has been away from the biological parent;

(2) the age of the child when care was assumed by the third-party;

(3) the possible emotional effect on the child of a change of custody;

(4) the period of time which elapsed before the parent sought to reclaim the child;

(5) the nature and strength of the ties between the child and the third party custodian;

(6) the intensity and genuineness of the parent’s desire to have the child;

(7) the stability and certainty as to the child’s future in the custody of the parent;

(8) the stability of the child’s current home environment;

(9) whether there is an ongoing family unit; and,

(10) the child’s physical, mental, and emotional needs.

This list is not exclusive. The court may consider any other facts and circumstances. Whatever the evidence, it should be directly related to the child's health, safety, and well-being.

In its August 29, 2017 Burak v. Burak opinon, Maryland's highest court changed the legal landscape regarding exceptional circumstances.

Now, there is a two-step process:

First, the court must first consider (and, so the grandparent prove) the first factor above - the length of time a child has been away from a biological parent - and determine that the child has been away from the biological parent(s) and with the grandparent(s) for a long period of time.

Second, if the court determines that the child has been away from the biological parent(s) and with the grandparent(s) for a long period of time, then it can consider the remaining factors.

The "purpose is to determine whether the child at issue has been outside the care and control of the biological parent for a sufficient period of time for a court to conclude that the constructive physical custody of the child has shifted from the biological parent to a third-party. Stated another way, the first Hoffman factor seeks to determine whether a biological parent has, in effect, abandoned his or her child."

The Appellate Court pointed to other court cases in which the child had been away from the parent, and with the grandparents, for years. Not just brief, even if frequent, periods of time. In short, a parent must have transferred constructive custody physical custody to the grandparents, for a long period of time, in order to satisfy the first factor.

To explain further, the Appellate Court quoted Maryland law that "parents should be encouraged in time of need to look for help in caring for their children without risking loss of custody. The presumption preferring parental custody is not overcome by a mere showing that such assistance was obtained. Nor is it overcome by showing that those who provided the assistance love the children and would provide them with a good home. These circumstances are not alone sufficient to overcome the preference for
parental custody."

Until now and the Burak v. Burak case, whether a grandparent wanted custody or visitation, both types of cases were treated the same way - requiring the grandparent to prove unfitness or exceptional circumstances before the court will consider whether it is in the child's best interests to grant custody or visitation to a grandparent.

While the landscape is clearer (if not more difficult) for grandparents to seek custody based on exceptional circumstances, it is unclear how this will impact grandparent visitation cases. Until there is further clarification, after Burak v. Burak, it is difficult to know how the exceptional circumstances factors above apply to grandparent visitation cases. Because visitation, while a form of custody, assumes that grandparents are seeking time with, not residence of, the child.

Which means turning to prior law on grandparent visitation. Brandenburg v. LaBarre (a 2010 case) requires grandparents who want visitation to show either parental unfitness or exceptional circumstances "indicating that the lack of grandparental visitation has a significant deleterious effect upon the children". Put another way, lack of grandparent visitation will be harmful or damaging to the children.

Brandenburg v. LaBarre suggests that proof of exceptional circumstances in grandparent visitation cases depends upon the facts and circumstances of the particular case, with some additional guidance:

First, a parent's refusal to allow contact between a child and grandparent, itself, is not sufficient proof of exceptional circumstances. This means that lack of grandparent contact is not, itself, damaging or harmful to a grandchild. A grandparent must show actual harm or damage to the child.

Second, Brandenburg v. LaBarre urges grandparents to prove exceptional circumstances using expert testimony that harm or damage will result from lack of grandparent contact.

In either event, Burak v. Burak makes the legal landscape of grandparent custody and visitation cases based upon exceptional circumstances far more challenging for grandparents.

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.