Parents in Maryland and other states have the constitutional right to determine the “care, custody and control” of their children. There is a traditional presumption that a fit parent acts in the best interest of his or her child. The right to determine care, custody and control is not absolute, however. The issue of grandparents’ rights (or other third-party rights) sometimes complicates matters. Maryland jurisprudence on this issue is well developed.
In the seminal Maryland appellate case (Koshko), it was ruled that a grandparent must make a threshold showing either of parental unfitness or exceptional circumstances that demonstrate that a lack of grandparental visitation will have a substantial deleterious effect. A 2009 case considering the effect of Koshko on modification of an order arose from a situation between an unmarried mother and father and the father’s parents.
The father was seriously hurt in a motor vehicle accident in 2004 and was left in a coma. After that the relationship between the mother and the father’s parents became tense and the mother refused to let the father’s parents see her daughter. The grandparents petitioned for visitation and the mother sought only to limit the frequency of visitation. The visitation was granted on the schedule agreed to by the mother. The original order granting the grandparents’ visitation was made before Koshko was decided.
The mother filed a motion to modify their visitation a year later because her relationship with the grandparents became more acrimonious. The grandparents wanted even more visitation. The grandmother had failed to answer the phone when away with her child, refused to tell the mother where they were, brought the child back late from visits, and allowed their son, a new driver, to drive the child.
The Master in charge of making findings concluded the grandparent’s visitation should be terminated because the grandparents could not establish the mother wasn’t fit or that there were exceptional circumstances justifying infringement of the mother’s rights. The continuous arguments created a stressful environment. This was not beneficial for the child.
The Master relied on Koshko, requiring a threshold showing to determine that the grandparents here needed to show the mother’s lack of fitness or exceptional circumstances showing a deleterious effect. Unless the grandparents made this showing, he determined, the best interests test was not applicable. The Master recommended that the mother’s request to terminate visitation be granted.
The grandparents submitted to the court that there needed to be a material change in circumstances in order to modify the order. They also argued that Koshko was not controlling. They requested the appointment of a “best interest attorney.” The court denied the grandparent’s request for a best interest attorney, but it also denied the mother’s motion to modify. It found there was no material change to justify the change. The parents appealed, asking the appellate court to interpret the effect of Koshko on a grandparent visitation order that had been made before the appellate ruling.
The appellate court explained that fit parents and third parties are not on the same footing and visitation orders are not permanent. Without the showing required by Koshko, the court assumes the modification requested by a parent is requested in the child’s best interest. The desire of a fit parent to modify a visitation order is in itself a material change in circumstances.
The mother’s determination in this case that the visitation schedule was no longer in the child’s best interest, bolstered by numerous specific complaints, was given weight. The appellate court sent the motion back to the lower court to permit the grandparents to establish the mother was an unfit parent or that there were exceptional circumstances that showed the lack of visitation would harm the child. Otherwise, the mother’s motion to modify would have to be granted.
If you are a grandparent or other close family member seeking visitation of a child in Maryland or if you are a parent opposing third-party visitation, it is important to consult with an experienced Maryland family law attorney. An experienced Maryland family law attorney can make a world of difference. Contact our office via the online form for a legal consultation.
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