What About Grandparent Visitation Rights? (Sigh.)

“Parents and grandparents do not stand on the same legal footing with respect to visitation.”  Brandenburg v. LaBarre, 193 Md.App. 178 (2010).

Third party custody is one of the fastest developing areas of Maryland law, seeing many major changes since 2016.  Third party visitation…not so much.

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

A Quick Recap

This blog will make much more sense if you start by reading my first in this series, “What is Third Party Custody?”. 

This series mostly focuses on custody.  So, serving as a parent.  But, what about third parties who want court-ordered time with a child but not full parental responsibilities?  So, visitation, or access, or parenting time?

While referring grandparents, this blog applies to any third party seeking visitation and who is not a De Facto parent.

Well, the law is and remains rather favorable…

Visitation versus Custody – Is There a Difference?

Legally speaking, no.  Visitation, while a lesser degree, is still a form of temporary custody.  For third parties, while visitation may be less intrusive than custody, Maryland law considers visitation and custody as equally constitutionally intrusive on parents’ rights of care, custody, and control of their children.  Parents are therefore entitled to decide whether their children have contact with grandparents and other third parties.  Their decision is presumed to be in the children’s best interests.

Visitation involves not only time together (so, in-person) but also communication.

What about Maryland’s Grandparent Visitation Statute?

Maryland has a grandparent visitation statute (Maryland Code, Family Law Article §9-102), stating that “if the court finds it to be in the best interests of the child, grant visitation rights to the grandparent”.  If only it were that simple…

This statute predates Troxel v. Granville, 570 US 57 (2000), in which the U.S. Supreme Court found a similar Washington State statute unconstitutional.

Maryland’s highest appellate court has not found Maryland’s grandparent visitation statute unconstitutional per se.  Koshko v. Haining, 398 Md. 404 (2007) saved the statute from unconstitutionality by applying a “gloss” requiring Maryland courts, before considering the child’s best interests, to first find that parents are either unfit or exceptional circumstances exist to indicate that lack of grandparent visitation harms or will harm the child(ren).  Koshko also seems to put grandparent visitation and custody on equal legal footing.

What’s Changed Since Koshko?

Changes, yes.  But not for the better…

Applying Koshko’s gloss, Aumiller v. Aumiller, 183 Md.App. 171 (2008), went further to urge (strongly) that grandparents offer expert testimony of the present or future harm to the child from lack of grandparent contact requirement of exceptional circumstances.  Aumiller also declined to specify exactly what factors constitute “exceptional circumstances” beyond the harm requirement.  Pre-existing third party custody cases (rather than visitation) set forth potential factors.  Those factors have evolved since (as discussed in previous blogs in this series, linked above).

Barrett v. Ayres, 186 Md.App. 1 (2009) addressed material changes in circumstance to modify grandparent visitation orders.  Specifically, a parent’s later decision that court-ordered grandparent visitation is no longer in a child’s best interests is a material change in circumstance to justify the court’s considering whether to modify visitation.  Here, the grandparent visitation order predated Koshko and had not been subject to Koshko’s constitutional standards.  Whether this case is limited to pre-Koshko orders or not is unclear.  If it does not, Barrett seems to stand for the principal that after a grandparent visitation order is granted, a parent’s later decision that the order is no longer in a child’s best interest requires the court to revisit the order.

2010 saw further hardening of the law against grandparent visitation in Brandenburg v. LaBarre, 193 Md.App. 178 (2010), in which the court stated:

“The bar for exceptional circumstances is high precisely because the circuit court should not sit as an arbiter in disputes between fit parents and grandparents over whether visitation may occur and how often. In the instant case, the fit parents chose to end contact between their children and the paternal grandparents because of a personal dispute between the parties.  Although the trial court may, and did, disagree with this choice, it must defer to the parents’ wishes absent proof of significant deleterious effect caused by the cessation of visitation.”

After that, there are no more reported cases on grandparent visitation (as of the writing of this blog).

Has Third Party Custody Law Changed Grandparent Visitation Law?

I don’t know… How’s that for an honest answer?

While the factors for proving unfitness and exceptional circumstances have developed in third party custody cases, there is not yet a grandparent visitation opinion deciding whether and how those changes apply in grandparent visitation cases.  None of Maryland’s reported grandparent visitation cases since Troxel base visitation claims upon parental unfitness.  And, this only makes sense because unfitness logically calls for custody.  Doubtful that a parent can be “only a little unfit” to the extent of justifying visitation but not custody.

Exceptional circumstances, on the other hand and in the context of custody, focus first on the length of time that a child has spent away from a parent and that it be a “long” time.  Perhaps this could apply when parent voluntarily agrees to regular, consistent, and frequent grandparent visitation (which amounts to a temporary surrender of the parent’s custodial rights)?

Until we have a reported Maryland opinion, it is difficult to know.  What we do know is that the grandparent visitation law discussed above is extremely unfavorable to grandparents.  And it seems that the state of the law has discouraged grandparents from seeking visitation (or at least appealing trial court decisions).  Without a post-Troxel reported Maryland appellate opinion upholding an award of grandparent visitation, we have yet to know what facts are sufficiently compelling to overcome parents’ constitutional rights.

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.  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.