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
- De Facto Parents & Multi-Parent Families
- Grandparent Visitation
- The Future
On August 29, 2017, the highest court in Maryland decided a grandparent custody case, Burak v. Burak, and finally defined what makes parents unfit to have custody of their child(ren).
While custody and visitation are, on the surface, two different things because custody involves with whom a child lives and visitation involves the timesharing schedule, the same factors are considered when deciding both.
This holds true for grandparent custody and visitation cases as well.
Until Burak v. Burak, “unfitness” in the context of grandparent custody and visitation was undefined, leaving much discretion to the trial judge (and, so, inconsistency among judges).
Unfitness is now defined as:
(1) the parent has neglected the child by manifesting such indifference to the child’s welfare that it reflects a lack of intent or an inability to discharge his or her parental duties;
(2) the parent has abandoned the child;
(3) there is evidence that the parent inflicted or allowed another person to inflict physical or mental injury on the child, including, but not limited to physical, sexual, or emotional abuse;
(4) the parent suffers from an emotional or mental illness that has a detrimental
impact on the parent’s ability to care and provide for the child;
(5) the parent otherwise demonstrates a renunciation of his or her duties to care and provide for the child; and
(6) the parent has engaged in behavior or conduct that is detrimental to the child’s welfare.
With respect to neglect (see #1 above), “neglect for the purposes of a finding of unfitness [now] means that the parent is either unable or unwilling to provide for the child’s ordinary comfort or for the child’s intellectual and moral development.”
These factors are meant to be guides, and not the exclusive considerations, for determining parental unfitness. One can reasonably expect that in any grandparent custody or visitation case involving parental unfitness, the court will state each factor and the facts that apply when making its decision.
Also, as with all Maryland custody and visitation cases, custody and visitation are modifiable in the event of a material change in circumstance. A finding of parental unfitness and resulting award of grandparent custody or visitation is no different. Upon proof of a change in circumstance, an unfit parent may seek to regain custody in future.
What remains to be seen is how the courts – both trial and appellate – in future will apply the factors that involve parent behaviors that are “detrimental” to the child or child’s welfare. In particular, factors 4 and 6. How much evidence of detriment must be shown?
Burak v. Burak sheds some light on this, when looking at opinions the Appellate Court relied upon from other states. In particular:
- “courts should not be in the business of permanently removing children from their parents’ custody simply because the parents have exercised poor judgment in caring for their children”
- that although a parent was found to have a drinking problem, there was “no finding or evidence to support a finding that drinking, whether diagnosed as alcoholism or not, affects [the parent’s] ability to care for the children.”
- “there must be a ‘consistent pattern of specific conduct before the child or specific conditions directly relating to the parent and child relationship either of which are determined by the court to be permanently detrimental to the physical or mental health of the child[.]”
- a court should not base its decisions “upon its own morals and viewpoint of how a child should be raised…the state cannot interfere with a natural parents’ right to custody simply to better the moral and temporal welfare of the child”
In Burak v. Burak, parental lying at trial, drug use, and sexual behavior (polyamorous relationship and promiscuity) were offered as evidence of parental unfitness. However, the Appellate Court decided that these behaviors are not, in and of themselves, evidence of parental unfitness. To evidence unfitness, such behaviors must be shown to be detrimental to the child or, at the least, that the child is aware of them.
Without corresponding detriment, it remains to be seen if a child’s awareness, alone, is really sufficient evidence of unfitness.
In sum, unfitness is more than bad, illegal, or immoral parent behavior. It is behavior that is, in fact and directly, detrimental to a child’s physical and mental health.
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.