If you are a grandparent, can you get custody or visitation rights to your grandchildren? The short answer, in Maryland, is “yes, but in very narrow circumstances.” In fact, not only grandparents, but any third party (such as a stepparent), may have a claim for custody or visitation rights to a minor child.
In Maryland, these claims can only be pursued and potentially granted in very specific circumstances. The specific circumstances were recently outlined in a case written in a 2020 opinion by Maryland’s highest court, the Court of Appeals, in a case titled E.N. v. T.R. (No. 44, Sept. Term, 2020).
Circumstance 1: Finding of Unfitness or Exceptional Circumstances by Both Parents
One way that a third-party, such as a grandparent, can be granted custody or visitation rights of a minor child in Maryland, is by proving that bothof the minor child’s natural parents are either unfit to parent or that exceptional circumstances exist.
To determine “unfitness” of a parent, it must be demonstrated that there is a current or future detriment to the child absent visitation or custodial rights by the third party. Factors that courts have looked at when determining unfitness include (1) the parent has neglected the child by manifesting such indifference to the child’s welfare that it reflects a lack of intent or an inability to discharge his or her parental duties; (2) the parent has abandoned the child; (3) there is evidence that the parent inflicted or allowed another person to inflict physical or mental injury on the child, including, but not limited to physical, sexual, or emotional abuse; (4) the parent suffers from an emotional or mental illness that has a detrimental impact on the parent’s ability to care and provide for the child; (5) the parent otherwise demonstrates a renunciation of his or her duties to care and provide for the child; and (6) the parent has engaged in behavior or conduct that is detrimental to the child’s welfare. These factors are not exclusive but serve as a guide for courts when making an “unfitness” determination.
To determine whether exceptional circumstances exist for a parent, who is otherwise fit, as it relates to a third party’s request for custody or visitation, Maryland courts have used other factors as a guide. These factors include (1) the length of time the child has been away from the natural parent; (2) the age of the child when care was assumed by the third party; (3) the possible emotional effect on the child of a change of custody; (4) the period of time which elapsed before the parent sought to reclaim the child; (5) the nature and strength of the ties between the child and the third party custodian; (6) the intensity and genuineness of the parent’s desire to have the child; and (7) the stability and certainty as to the child’s future in the custody of the parent. The need to find “exceptional circumstances” is derived from the belief that extreme care must be exercised in determining a custody placement other than with a fit parent.
Circumstance 2: Grandparent (or other third-party) is a “De-Facto Parent” Under Maryland Custody Law
Are you a grandparent or third-party, but have been the one who has been raising the child? You may have grounds to ask for custody or visitation by claiming you are the “de facto” parent. You have to meet the following requirements to be considered a “de facto” parent:
(1) Both biological or adoptive parents consented to, and fostered, your formation and establishment of a parent-like relationship with the child; (2) You and the child lived together in the same household; (3) You assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and (4) You have been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
Reminder: Best-Interests Still Apply
Even if Circumstance 1 (unfitness or exceptional circumstances for both parents) or Circumstance 2 (de-facto parent) applies to you, you still have to prove to the Judge that it is in the best interests of the Minor Child for you to have custody or visitation in order to be granted relief.
Do you think you or someone you know may have custody or visitation rights as a third-party or grandparent in Maryland? If you would like our opinion on the strength of your case or if you have any other questions, feel free to give us a call at 410-766-4044 24/7 to speak to a local Maryland family law lawyer for a free consultation.