Grandparents, De Facto Parents And Their Rights

To Custody And Visitation

By David Diggs
The Law Office of David V. Diggs

As I write about grandparenting, I can’t help but recall my all-time favorite bumper sticker, which said, “If I’d known grandchildren were so much fun, I’d have had them first.” There are few bonds as strong and loving as that between a grandparent and grandchild. Fortunately, in most families, there is no need to involve lawyers in these relationships. When relationships go awry, however, legal counsel may be crucial to repairing the damage.

Since 1991, Maryland has had a simple and concise law addressing grandparent’s rights and permitting them to petition for visitation. An equity court may do the following:

1. Consider a petition for reasonable visitation of a grandchild by a grandparent.
2. If the court finds it to be in the best interest of the child, grant visitation rights to the grandparent.

Many years ago, I represented grandparents seeking visitation with their 7-year-old grandson. Sadly, the dad, my clients’ son, was addicted to drugs and absent. The parents had never married. Mom had allowed the grandparents to have visitation until she met a new boyfriend. Suddenly, visitation stopped without explanation. Calls went unreturned. Letters were unanswered. Months went by without any word from their grandson.

We filed suit. A trial was conducted in Baltimore City. After a couple of days of testimony, the judge determined that it was in the grandson's best interests to spend a Saturday afternoon with his grandparent every month. My clients were pleased.

Unfortunately, these same grandparents may not have succeeded today. The U. S. Supreme Court’s decision in Troxel v. Granville in 2000 proclaimed that parents have a constitutional right to direct the upbringing of their children. It struck down a Washington state law that permitted third parties to petition visitation rights over a parent’s objection.

The Supreme Court held that state courts considering nonparent visitation petitions (including those by grandparents) must apply “the presumption that fit parents act in the best interest of their children.” Troxel also required that state courts give “special weight” to a parent’s decision relating to nonparent visitation.

The “choices [parents make] about the upbringing of children … are among associational rights … sheltered by the 14th Amendment against the state's unwarranted usurpation disregard or disrespect,” wrote Justice Sandra Day O’Connor for the split court.

In Koshko v. Haining, a 2006 case, Maryland's grandparent visitation statute was attacked as unconstitutional because it lacked language stating that the parents’ decisions with respect to visitation were presumed to be in their children’s best interests.

The case started in Baltimore County where maternal grandparents sought visitation with their three minor grandchildren. Following a two-day trial in April 2004, the trial judge concluded that the grandparents had “rebutted the presumption in favor of the parents’ determination of what is in their child’s best interests.” The court constructed an extensive access schedule.

The Koshkos appealed, asserting that “their parental rights and the intended presumption favoring parental decisions relating to their children’s best interests are disregarded both by the express terms [the grandparents visitation law], as well as, its application by the trial court in the present grandparental visitation dispute.”

Maryland's highest appellate court found that the grandparents visitation statute was valid and that it carried an implied “presumption favoring a parental decision, which first must be rebutted before any inquiry into the child’s best interests.” The court essentially rewrote the grandparents visitation law and adopted a parental unfitness or exceptional circumstances test for grandparent access, whether a custody or visitation case.

A more recent case involving lesbian parents in Washington County, gives grandparents hope of a partial restoration of rights surrendered in Troxel. In Conover v. Conover, the Court of Special Appeals addressed issues concerning same-sex marriage and non-biological/non-adoptive spouses’ custody and visitation rights. Brittany and Michelle Conover married after living together for many years. They jointly decided to have a child and Brittany was the biological mother. They separated after the child was 18 months old. Brittany eventually denied visitation and Michelle sued.

The trial court in Hagerstown ruled that Michelle, as a third-party, had not shown that Brittany was unfit or that exceptional circumstances had been met, as required by a 2008 case. Michelle’s relationship with the child meant little. She appealed.

The appellate court recognized that de facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court may apply a best-interests-of-the-child analysis. Ultimately, this means de facto parents, which could include grandparents, may petition for access to a child, provided they show:

1. That the parent consented to, and fostered, a parent-like relationship with the child.
2. That the de facto parent and the child lived together.
3. That the de facto parent assumed a parental role; took responsibility for the child’s care, education and development; and contributed toward the child’s support, without expectation of repayment.
4. That the de facto parent has been in a parental role long enough to establish a bonded and dependent relationship with the child.

Whether or not a grandparent meets the criteria established for de facto parents presents a complicated question. If you have questions about grandparents’ rights, you should consult with an attorney who is familiar with this area of the law and who will assist you in making informed decisions. David Diggs is experienced in family law and representing grandparents and de facto parents. If you need further information regarding this subject, contact The Law Office of David V. Diggs LLC, located at 8684 Veterans Highway, Suite 204, in Millersville, by calling 410-244-1171 or emailing david@diggslaw.com.