Jul 25, 2012

The Law of Visitation Rights Grandparents, Siblings & Domestic Partners

Often third parties such as grandparents, stepparents, and domestic partners of a biological parent have established a relationship with a minor child and desire to continue that relationship through regular contact with the child. The standards considered by the court in determining whether to award third parties visitation access to a minor child are discussed below. Essentially, the natural parent's proposed schedule of access is deemed to be presumptively in the minor child's best interest, and a third party has to show either parental unfitness or exceptional circumstances warranting visitation or custody rights exist. If the third party demonstrates either parental unfitness or exceptional circumstances, then the court will consider what schedule would be in the minor child's best interest.

FL § 9‑102 provides that an equity court may consider a petition for reasonable visitation of a grandchild by a grandparent; and if the court finds it to be in the best interests of the child, grant visitation rights to a grandparent. The statute applies to intact family situations also, there is no presumption in favor of grandparent visitation. In Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007), the Court of Appeals held that “there must be a finding of either parental unfitness or exceptional circumstances demonstrating the current or future detriment to the child, absent visitation from his or her grandparents, as a prerequisite to application of the best interests analysis. Accordingly, we overrule the portions of Fairbanks, Maner, Beckman, Herrick, and Wolinski that are inconsistent with this holding.” The Court of Appeals in Koshko noted in footnote 23 that “At any evidentiary hearing on a petition, the petitioners must produce evidence to establish their prima facie case on the issue of either parental unfitness or exceptional circumstances as well as evidence sufficient to tip the scales of the best interests balancing test in their favor.” In Janice K. v. Margaret
K., 404 Md. 661, 948 A.2d 73 (2008), the Court of Appeals held that Maryland does not recognize "de facto" parenthood status and held that in order to overcome the "constitutional rights of a legal parent to govern the care, custody, and control of his or her child, even a person who would qualify as a de facto parent, who seeks visitation or custody, must demonstrate exceptional circumstances" or parental unfitness as a prerequisite to the court's consideration of the best interests of the child.

A natural parent’s proposed schedule of visitation is entitled to a rebuttable presumption that it is in the best interests of the child. Wolinski v. Browneller, 115 Md. App. 285, 693 A.2d 30 (1997). In Brice v. Brice, 133 Md. App. 302, 754 A.2d 1132 (2000), the Court of Special Appeals reversed a trial court’s order establishing a visitation schedule between the paternal grandparents and the child that was against the mother’s wishes. Under the U.S. Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.Ed. 49 (2000), application of FL § 9-102 violated mother’s constitutional due process right, i.e. her fundamental right to rear her child, where there was no showing she was unfit and mother did not oppose some visitation with the paternal grandparents. The appellate court did not invalidate the Maryland statute. The Court of Special Appeals, in In re: Tamara R., 136 Md. App. 236, 764 A.2d 844 (2000), analyzed Troxel v. Granville and applied the principles to a sibling visitation matter. “We conclude that the state’s interest in the protection of a minor child who has been removed from her parent’s care is sufficiently compelling to justify overriding her parent’s opposition to visitation with her sibling, if there is evidence that denial of sibling visitation also would harm the sibling whom the separated child seeks to visit.” In Herrick v. Wain, 154 Md.App. 222, 838 A.2d 1263 (2003), the Court of Special Appeals affirmed a Circuit Court for Montgomery County Order granting maternal grandmother visitation; trial court had considered surviving father’s concerns and the evidence rebutted presumption that father’s preferred schedule was in child’s best interest. See also Frase v. Barnhart, et. al., 379 Md. 100, 840 A.2d 114 (2003).
Both parents are necessary parties to the third party's action, pursuant to Maryland Rule 2‑211.

Mar 3, 2012


Stay calm. Don't run. Don't argue, resist or obstruct the police, even if you are innocent or police are violating your rights. Keep your hands where police can see them.
Ask if you are free to leave. If the officer says yes, calmly and silently walk away. If you are under arrest, you have a right to know why.
You have the right to remain silent and cannot be punished for refusing to answer questions. If you wish to remain silent, tell the officer out loud. In some states, you must give your name if asked to identify yourself.
You do not have to consent to a search of yourself or your belongings, but police may "pat down" your clothing if they suspect a weapon. You should not physically resist, but you have the right to refuse consent for any further search. If you do consent, it can affect you later in court.

Stop the car in a safe place as quickly as possible. Turn off the car, turn on the internal light, open the window part way and place your hands on the wheel.
Upon request, show police your driver's license, registration and proof of insurance.
If an officer or immigration agent asks to look inside your car, you can refuse to consent to the search. But if police believe your car contains evidence of a crime, your car can be searched without your consent.
Both drivers and passengers have the right to remain silent. If you are a passenger, you can ask if you are free to leave. If the officer says yes, sit silently or calmly leave. Even if the officer says no, you have the right to remain silent.

You have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents or any other officials. You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country. (Separate rules apply at international borders and airports, and for individuals on certain nonimmigrant visas, including tourists and business travelers.)
If you are not a U.S. citizen and an immigration agent requests your immigration papers, you must show them if you have them with you. If you are over 18, carry your immigration documents with you at all times. If you do not have immigration papers, say you want to remain silent.
Do not lie about your citizenship status or provide fake documents.

If the police or immigration agents come to your home, you do not have to let them in unless they have certain kinds of warrants.
Ask the officer to slip the warrant under the door or hold it up to the window so you can inspect it. A search warrant allows police to enter the address listed on the warrant, but officers can only search the areas and for the items listed. An arrest warrant allows police to enter the home of the person listed on the warrant if they believe the person is inside. A warrant of removal/deportation (ICE warrant) does not allow officers to enter a home without consent.
Even if officers have a warrant, you have the right to remain silent. If you choose to speak to the officers, step outside and close the door.

If an FBI agent comes to your home or workplace, you do not have to answer any questions. Tell the agent you want to speak to a lawyer first.
If you are asked to meet with FBI agents for an interview, you have the right to say you do not want to be interviewed. If you agree to an interview, have a lawyer present. You do not have to answer any questions you feel uncomfortable answering, and can say that you will only answer questions on a specific topic.

Do not resist arrest, even if you believe the arrest is unfair.
Say you wish to remain silent and ask for a lawyer immediately. Don't give any explanations or excuses. If you can't pay for a lawyer, you have the right to a free one. Don't say anything, sign anything or make any decisions without a lawyer.
You have the right to make a local phone call. The police cannot listen if you call a lawyer.
Prepare yourself and your family in case you are arrested. Memorize the phone numbers of your family and your lawyer. Make emergency plans if you have children or take medication.
Special considerations for non-citizens:
- Ask your lawyer about the effect of a criminal conviction or plea on your immigration status.
- Don't discuss your immigration status with anyone but your lawyer.
- While you are in jail, an immigration agent may visit you. Do not answer questions or sign anything before talking to a lawyer.
- Read all papers fully. If you do not understand or cannot read the papers, tell the officer you need an interpreter.

You have the right to a lawyer, but the government does not have to provide one for you. If you do not have a lawyer, ask for a list of free or low-cost legal services.
You have the right to contact your consulate or have an officer inform the consulate of your arrest.
Tell the ICE agent you wish to remain silent. Do not discuss your immigration status with anyone but your lawyer.
Do not sign anything, such as a voluntary departure or stipulated removal, without talking to a lawyer. If you sign, you may be giving up your opportunity to try to stay in the U.S.
Remember your immigration number ("A" number) and give it to your family. It will help family members locate you.
Keep a copy of your immigration documents with someone you trust.

Remember: police misconduct cannot be challenged on the street. Don't physically resist officers or threaten to file a complaint.
Write down everything you remember, including officers' badge and patrol car numbers, which agency the officers were from, and any other details. Get contact information for witnesses. If you are injured, take photographs of your injuries (but seek medical attention first).
File a written complaint with the agency's internal affairs division or civilian complaint board. In most cases, you can file a complaint anonymously if you wish