Grandparents Visitation Rights in Maryland
Grandparent's Rights to Visitation in Maryland:
Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007), addressed a constitutional challenge to Maryland's GVS.
In that case, the maternal grandparents petitioned for visitation with their three grandchildren. The parents of the children were precluding the grandparents from visiting because the parties had had a falling out.
The Court was asked to decide whether, under a substantive due process analysis, the GVS was unconstitutional, because it failed to recognize a rebuttable presumption accorded the propriety of a parent's determination of what is in his or her child's best interest with respect to visitation with a grandparent. Id.
Before addressing the validity of Maryland's GVS, the Court surveyed the "relevant precedential guideposts framing the constitutional landscape and informing its analysis" in "evolutionary order." Koshko, 398 Md. at 412.
The Court first addressed the GVS in 1993, in Fairbanks, 330 Md. at 39. Fairbanks "arose from a disagreement between a divorced father and maternal grandparents over the amount of time the maternal grandparents should be permitted to visit with the children." Koshko, 398 Md. at 413 (citing Fairbanks, 330 Md. at 43). The grandparents filed a petition under the GVS, which the trial court denied "because it found that the grandparents had not demonstrated exceptional circumstances militating that visitation should be ordered." Id. (citing Fairbanks at 44).
The Fairbanks Court considered whether a finding of exceptional circumstances must be made before visitation could be ordered. The Court concluded that the plain language of the GVS required neither a predicate showing of exceptional circumstances nor parental unfitness before an award of visitation to grandparents could be ordered, because "visitation is a considerably less weighty matter than outright custody of a child, and does not demand the enhanced protections, embodied in the exceptional circumstances test, that attend custody awards." Fairbanks, 330 Md. at 48.
Therefore, the best interest of the child standard was dispositive. Id. at 49.
The Fairbanks Court provided a non-exclusive list of factors to be considered when evaluating the best interests of a child, as set forth in footnote 1, supra.
The Koshko Court noted that the Fairbanks "best interest" analysis was followed in the pre-Troxel cases of Beckman v. Boggs, 337 Md. 688, 655 A.2d 901 (1995), Maner v. Stephenson, 342 Md. 461, 677 A.2d 560 (1996), and Wolinski v. Browneller, 115 Md. App. 285, 693 A.2d 30 (1997).
In Wolinski, the Court held that "a court's granting of a grandparent's visitation schedule (as opposed to the grant of visitation in the first instance) over that of a parent's preference was even less of an affront to the parent's constitutional rights." Koshko, 398 Md. at 416 (citing Wolinski, 115 Md. App. at 307) (emphasis in original). We recognized the constitutional presumption favoring the parents' determination of what is in their child's best interest in grandparent visitation disputes, but we stated that "the presumption favoring a parent's wishes regarding their child . . . could be overcome by a trial court's contrary finding of visitation being in a child's best interest, a determination which is entitled to deference upon judicial review." Id. at 416-17 (citing Wolinski at 319).
The Koshko Court also reviewed the post-Troxel cases of In re Tamara R., 136 Md. App. 236, 764 A.2d 844 (2000), Herrick, 154 Md. App. at 231-32, and McDermott v. Dougherty, 385 Md. 320, 869 A.2d 751 (2005).
In re Tamara R., 136 Md. App. 236, 764 A.2d 844 (2000), a third-party visitation case, involved a father who wished to prevent his child, who had been adjudicated a child in need of assistance, from seeing his other children.
In Tamara R., we "viewed" the Fairbanks best interest factors "through a lens deferring to a parent's wishes," by applying "a presumption that the parent's decision to decline visitation is in the best interest of the child over whom the parent has custody, and placing the burden on the non-parent seeking visitation to rebut that presumption." Koshko, 398 Md. at 418 (citing In re Tamara R. at 252).
In Herrick, a grandparent visitation case, the Court followed Fairbanks and did not require a showing of exceptional circumstances before granting grandparent visitation. The Koshko Court noted that "the Herrick court also quoted approvingly from Wolinski the proposition that petitioning grandparents bear the burden of producing evidence sufficient to satisfy the Fairbanks factors regarding rebuttal of the parental presumption." Koshko, 398 Md. at 419 (citing Herrick at 238).
In McDermott, a grandparent custody case, the Court of Appeals stated that "fit parents stand in a position superior to third parties relative to the constitutional right to the 'care, custody, and control' of their children." Koshko at 419 (citing McDermott at 353).
The McDermott Court stated:
"Generally, in private actions in which private third parties are attempting to gain custody of children of natural parents over the objection of the natural parents, it is necessary first to prove that the parent is unfit or that there are extraordinary circumstances posing serious detriment to the child, before the court may apply a "best interest" standard." 385 Md. at 374-75.
The Koshko Court explained the McDermott Court's analysis:
Absent a showing of parental unfitness or exceptional circumstances, "the constitutional right of parents to the 'care, custody, and control' of their children is the ultimate determinative factor. . ." Having determined that an examination of whether exceptional circumstances exist should precede the need for a best interest analysis, we embraced the factors enumerated in Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977) for identifying exceptional circumstances. Koshko, 398 Md. at 419-20 (quoting McDermott, 385 Md. at 418-19).