A New Court of Appeals Ruling Clarifies When Grandparents and Other Third Parties Can Seek Custody in Maryland

grandparentsAn important emerging issue in Maryland and other states in recent years involves situations in which grandparents have gone to court to seek legal custody of their grandchildren. Recently, the Maryland Court of Appeals faced a first-of-its-kind case:  a matter in which the courts had to adjudicate parental unfitness within the parameters of a third-party custody request case. While the Court of Appeals ruled against the grandparents in this instance, the case nevertheless provides useful guidance about third-party custody actions and reminds us of the importance of working with a knowledgeable Maryland grandparent rights lawyer who is up-to-date on all of the newest changes in the law.

The home situation for the child at the center of the case was a turbulent one. The parents, Natasha and Mark, married in 2006 and had a son in 2008. From 2009 to 2012, the parents were two-thirds of a three-member polyamorous relationship that also included another woman. The three also used illegal drugs. By 2013, the father allegedly became violent, and the mother obtained a restraining order. The father moved out, and the mother filed for divorce. A consent agreement that was part of the divorce litigation required both parents to undergo drug testing. The father passed all of his tests, but the mother tested positive for marijuana in 2014.

Later that year, the paternal grandparents filed a request with the court, seeking to intervene in the child custody case. They argued that the court was permitted to, and should, award them custody of the child. They contended that they had been closely involved in the child’s life since birth, both emotionally (including caring for the child while the parents used drugs) and financially (including providing money that the parents used to purchase the marital home). In light of the parents’ illegal drug use, the custody of the child should go to them, they argued.

The trial court agreed. Given the facts of the case, including the fact that the child was already starting to exhibit troubling behaviors in kindergarten and first grade, the trial court decided that both parents were unfit, that the required degree of exceptional circumstances existed, and that the grandparents should receive custody.

The case went all the way to the Court of Appeals, which reversed the ruling of the trial court. The grandparents were legally correct that Maryland law gives third parties like them the right to do what’s called “permissively intervene” in an ongoing custody case, as long as they can prove “that the parents are either unfit or that exceptional circumstances exist and that the child’s best interests would be served in the custody of the third party.”

The grandparents in this case had enough proof to meet their evidentiary burden for intervening. They had proof that they had acted as parental figures since the boy’s birth, that both parents had been using illegal drugs like ecstasy, mushrooms, cocaine, and marijuana, and that the mother lied about her ongoing use of marijuana. This, all together, was enough to raise an issue about the possible existence of parental unfitness and extraordinary circumstances.

The Court of Appeals noted that the issue of determining parental unfitness within the confines of a third-party custody request was something Maryland courts had not faced before. The court then laid out a six-item list of factors that courts may consider to make these types of determinations. That list included:  (1) parental neglect of the child, (2) parental abandonment of the child, (3) parental infliction of (or allowing another person to inflict) a physical or mental injury on the child, (4) a parent’s physical or mental illness that impairs the parent’s ability to care and provide for the child, (5) parental renunciation of the duties of caring and providing for the child, and (6) parental engagement in “behavior or conduct that is detrimental to the child’s welfare.”

These grandparents had proof that tied in to several of these factors, but they ultimately lost on procedural grounds. The trial judge, according to the Court of Appeals, “repeatedly made findings that were not supported by the evidence presented at the hearing.” As a result of this technical defect, the finding that the mother was unfit was “erroneous” and required a reversal of the decision granting custody to the grandparents.

Whether you are a parent, a grandparent, or a third party, your child custody case is certainly very important to you. Seek out skilled counsel to help you pursue the result you need. Knowledgeable Maryland grandparent rights attorney Anthony A. Fatemi has been helping grandparents and others with their child custody and other family law cases for many years. To find out how this office can assist you, contact us at 301-519-2801 or via our online form.

More blog posts:

Assessing Child Custody and Child Support in a Grandparent Custody Action in Maryland, Maryland Divorce Lawyer Blog, Dec. 22, 2016

When Courts May Order Grandparent Visitation in Maryland, Maryland Divorce Lawyer Blog, Oct. 13, 2016

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