Disputes Between Biological Parent and Third Parties

• Jurisdiction: Maryland

X. DISPUTES BETWEEN BIOLOGICAL PARENT AND THIRD PARTIES

A. Overview

When "third parties" seek custody or visitation rights from natural parents, the third party must first prove that the natural parent(s) are "unfit" or that "exceptional circumstances" exist before the "best interests of the child" have any relevance.²⁷²

However, if the "third party" is a "de facto" parent, the custody or visitation issue will be resolved according to "the best interests of the child" criteria, and there is no requirement that the natural parents first be proven to be "unfit" or that "exceptional circumstances" exist.²⁷³ See Section X.D. "De Facto" Parents below.

The court's power to award visitation is derived from its broad and inherent authority over matters relating to children. Any person with whom a child has developed a significant relationship may be entitled to visitation with the child.²⁷⁴ Custody and visitation rights are not arbitrarily restricted to any particular categories of people (e.g., biological, adoptive, or equitable parents, and grandparents). However, when custody or access is sought by third parties in opposition to the biological parents, the "best interests of the child" is not the singular and controlling factor it was once presumed to be.²⁷⁵

B. Constitutional Presumption in Favor of Biological Parent

The starting point for analysis when a third party seeks custody or visitation is the constitutionally protected right of a biological parent, under the Fourteenth Amendment to the U.S. Constitution, to raise his or her children as he or she sees fit, without undue interference by the state.²⁷⁶

In In re Mark M., the Court stated:

A parent's interest in raising a child is, no doubt, a fundamental right, recognized by the United States Supreme Court and this Court. The United States Supreme Court has long avowed the basic civil right encompassed by child rearing and family life. See Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060, 147 L. Ed.2d 49, 57 (2000) (stating that "the Fourteenth Amendment protects the fundamental rights of parents to make decisions concerning the care, custody and control of their children") See also Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed.2d 599, 606 (1982) (discussing 'the fundamental liberty interest of natural parents in the care, custody and management of their child'); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed.2d 551, 558-59 (1972) (stating that 'the right to conceive and to raise one's children have been deemed "essential" and that "the integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment . . . the Equal Protection Clause of the Fourteenth Amendment . . . and the Ninth Amendment . . ."²⁷⁷

C. Third Parties

Any person with whom a child has developed a significant relationship may be entitled to visitation with the child.²⁷⁸ However, unless they qualify as a "de facto" parent, the quantum of proof required to assert this entitlement is substantial. The most recurring example are grandparents. In 1991, grandparents were given the statutory right to "petition for reasonable visitation of a grandchild."²⁷⁹ On its face, the statute required that the grandparents prove merely that such visitation was "in the best interest of the child." Proof of "exceptional circumstances" or "parental unfitness" was not a precondition to an award of grandparent visitation.²⁸⁰ However, in Koshko v. Haining,²⁸¹ the Court chose to give weight to the constitutional presumption in favor of the rights of biological parents by superimposing the presumption favoring parental decision-making and requiring a showing of "parental unfitness" or "exceptional circumstances" before any inquiry could be made into the child's best interests.²⁸² A finding that one was a de facto parent was a factor to be considered in assessing whether exceptional circumstances existed, but, standing alone, it was not a determinative factor that would have justified a court in applying the best interests of the child standard. In fact, in Best v. Fraser,²⁸³ the Court found that absent visitation from the third party seeking an award, a court cannot reach the best interests of the child analysis until there has been "a finding of either parental unfitness or exceptional circumstances demonstrating the current or future detriment to the child."²⁸⁴

1. Proof of parental unfitness

In Daugherty v. Daugherty,²⁸⁵ a court placed Mother's four children in the care of paternal grandparents after finding Mother unfit. The children suffered from breathing problems, apparently caused by Mother's heavy smoking around them, and were severely undernourished. The mother's problems seem to have begun after her husband was incarcerated, leaving care of all four children, all under the age of four, to her alone. "The most telling aspect of her unfitness, is the fact that she does not seem to understand how or when to feed her children." The doctors diagnosed one child with failure to thrive due to malnourishment. Other testimony revealed that the children were seen eating off the floor, out of the trash, and eating nothing more than dry cereal. The children expressed a desire to remain with the grandparents.

2. Extraordinary circumstances

In an instructive case, In re Victoria C., an 18 year old sought visitation with her two younger half siblings.²⁸⁶ The 18 year old was, by definition, a third party. She had been adjudged a CINA and resided away from her father and her stepmother-the parents of the two half siblings. The Court applied the same standard articulated in Koshko v. Haining and required "a threshold showing of either parental unfitness or exceptional circumstances indicating that the lack of [] visitation has a significant deleterious effect upon the children who are the subject of the petition" before the court could reach the best interests analysis.²⁸⁷

In In re Victoria C., the Court also addressed the term "exceptional circumstances":

We have not defined the term exceptional circumstances in past cases, and we decline to do so in the instant case. "Exceptional circumstances are determined on a case-by-case basis." Aumiller v. Aumiller, 183 Md. App. 71, 84 (2008). We have "explained that 'the factors used to determine the existence of exceptional circumstances' have been well established in the context of third-party custody disputes." Brandenburg v. LaBarre, 193 Md. App. 178, 190 (2010) (quoting Aumiller, supra, 183 Md. App. at 80). These factors, however, "do not neatly translate to the realm of visitation disputes." Aumiller, supra, 183 Md. App. at 81. We have also acknowledged that the factors are "not always particularly relevant or helpful" in this context. Brandenburg, supra, 193 Md. App. at 190. The factors considered in custody disputes are:

[T]he length of time the child has been away from the biological parent, the age of the child when care was assumed by the third party, the possible emotional effect on the child of a change in custody, the period of time which elapsed before the parent sought to reclaim the child, the nature and strength of the ties between the child and the third party custodian, the intensity and genuineness of the parent's desire to have the child, [and] the stability and certainty as to the child's future in the custody of the parent.²⁸⁸

The Appellate Court of Maryland in In re Victoria C. continued:

As we explained in Brandenburg [v. LaBarre]:

The bar for exceptional circumstances is high precisely because the circuit court should not sit as an arbiter in disputes between fit parents and grandparents over whether visitation may occur and how often. In the instant case, the fit parents chose to end contact between their children and the paternal grandparents because of a personal dispute between the parties. Although the trial court may, and did, disagree with this choice, it must defer to the parents' wishes absent proof of significant deleterious effect caused by the cessation of visitation.²⁸⁹

In Ross v. Hoffman, eight continuous years of care by the physical custodian was considered sufficient to overcome the presumption.²⁹⁰ In Trenton v. Christ,²⁹¹ although the biological father was not unfit, his 10-year-old daughter's preference to stay in Maryland with her grandparents, rather than move to Wisconsin with her father, was also considered sufficient to overcome the parental presumption. Likewise, in Ross v. Pick,²⁹² the appellate court reversed an award of custody to Mother of her 11-year-old child who had resided with a third party for 10 years after being abandoned by Mother. In Dietrich v. Anderson,²⁹³ foster parents were awarded custody of a child who had been in their care for five years after Father had claimed inability to care for the child and left the child to the care of the foster parents. In Piotrowski v. State,²⁹⁴ a grandparent who raised a child for eight years was awarded custody in a dispute with the child's father.

In Karen P. v. Christopher J.B.,²⁹⁵ the Court found "exceptional circumstances'' sufficient to overcome the presumption that the child should be in the custody of biological mother. Mother hid the fact that the child was not fathered by the husband until the eve of litigation. That decision, coupled with her unexplained move to New Jersey, indicated a lack of respect for the child's bond to the husband, which was a father-daughter bond in all other respects.

By her behavior, which the trial judge found to be selfish, a "pattern of immaturity," and designed to elevate her own personal interests above Claudia's well being, Karen made clear that, rather than cooperate with Christopher to continue the father-daughter relationship he and Claudia had formed, she would rather have Claudia rendered fatherless. The bond between Christopher and Claudia, and Karen's actions in disregard of the importance of the bond to Claudia's

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