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Stuart Muntzing Skok
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.
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