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Grandparent’s Visitation Rights

On Behalf of | Feb 12, 2014 | Uncategorized

The Bel Air family law attorneys at SMLH explain grandparent’s visitation rights in Maryland divorces cases.

The circumstances surrounding each individual’s divorce case are very different. Disputes often arise when there is a party who wishes to severely limit or deny child visitation rights to another party.

Although many wouldn’t consider leaving the child’s grandparents out of the visitation equation, there are many instances when grandparents’ visitation rights have been severely limited or denied by a parent. The Maryland Annotated Code, Family Law Article § 9-102 allows grandparents the statutory right to petition for visitation rights in divorce cases. (Grandparent Visitation Statute or “GVS”)

Many of these disputes involve finding a balance between the fundamental rights of a parent to control the upbringing of their children, the wishes of the custodial parent, and the best interests of the child regarding visiting relatives.

In 2000 the U.S. Supreme Court addressed the issue of third party visitation rights in Troxel v. Granville. To summarize the case, Tommie Granville and Brad Troxel were the unmarried parents of two daughters. When their relationship ended, Troxel often took the girls to his parents’ home for visits. Two years later Troxel committed suicide, but his parents continued to see the girls. When Tommie Granville remarried and her husband legally adopted the girls, she tried to limit the visitation rights of the paternal grandparents.

The case was brought by the Troxel grandparents who wanted to continue seeing their granddaughters. The U.S. Supreme Court ruled that the custodial parent’s wishes must also be taken into account and decisions regarding visitation cannot be made solely based on the best interest of the child.

Under Maryland law, the right of parents to make important decisions for their children is well established. It is cardinal with Maryland Courts that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that legal decisions have respected the private realm of family life which the state cannot enter.

Thus, in Maryland, there is a presumption in favor of a parent’s decision concerning visitation with a third party. For example, in Wolinski v. Browneller, the Maryland Court of Special Appeals held that a parent’s proposed schedule of visitation is entitled to a presumption that it is in the best interests of the child. The Court reasoned that proper regard for a parent’s constitutional rights requires that the burden to produce testimony or other evidence discrediting a parent’s proposed visitation schedule be placed upon the grandparents who petition for vested visitation rights. Simply to ignore a parent’s wishes regarding the time his or her child should spend outside the family home, and outside of his or her immediate care and custody, is to trample improperly on the parent’s liberty interest in directing the upbringing of his or her child.

Nevertheless, in light of the State’s compelling interest in protecting the child’s welfare and the minimal severity of the intrusion upon parental rights, the presumption in favor of the custodial parent’s schedule may be rebutted by affirmative evidence that the schedule would be detrimental to the child’s best interests.

Accordingly, the rights of a parent are not absolute or beyond limitation. The State has a wide range of power for limiting parental freedom and authority in things affecting a child’s welfare. Thus, a parent’s right to direct his or her child’s upbringing is not absolute. Rather, Due Process analysis requires the delicate balancing of all of the competing interests involved in the litigation.

If the custodial parent’s preference were absolute, the need for a grandparent visitation statute would be obviated since a parent could deny visitation without recourse. The Court’s role as protector of the child requires that it weigh all evidence and consider all relevant factors, and make a decision that is in the best interests of the children.

For more information regarding grandparent’s visitation rights in Maryland divorce cases, please contact the family law attorneys at SMLH, Law.