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.

1 comment:

  1. Thanks for great information you write it very clean. I am very lucky to get this tips from you.

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