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Top Court Narrows Grandparents Visitation Law

On January 16, 2007, the Maryland Court of Appeals issued a decision consistent with a friend of the court brief written by the Public Justice Center. The PJC urged the Court to interpret the Maryland Grandparent Visitation statute to require that before the court could order visitation for a grandparent over the objection of a custodial parent, the court must find that denial of grandparent visitation would harm the child. The PJC's brief argued that construing a harm standard into the Grandparent Visitation statute would affirm the presumption that fit parents should decide the best interests of their children, permit a grandparent who can establish harm to be granted visitation, and would provide guidance to the courts in resolving these difficult family issues. The PJC was joined in this brief by the Women’s Law Center of Maryland, the ACLU of Maryland, and the University of Baltimore School of Law Family Clinic. The brief was written by PJC's Appellate Director Suzanne Sangree, Roscoe Jones, Jr. – Francis D. Murnaghan, Jr. Appellate Advocacy Fellow, and Steve Ruckman – a PJC summer intern. An article in the Daily Record on the decision follows. PJC Board Member Leigh Goodmark is quoted in the article. January 16, 2007 By ANN W. PARKS, ann.parks@mddailyrecord.com Maryland’s highest court has upheld but narrowed the state’s grandparent visitation law, reading into it a requirement that the parents must first be found unfit or that exceptional circumstances apply. The decision is a win for Glen and Andrea Koshko of Baltimore County, who challenged a court order granting her parents visitation rights with the Koshkos’ three children. The Koshkos argued that the law allowing grandparent visitation “in the best interest of the child” was unconstitutional on its face. The Court of Appeals rejected that claim, but found the law was unconstitutionally applied to the Koshkos since there was no threshold finding of parental unfitness, nor of exceptional circumstances indicating that a denial of grandparent visitation would be detrimental to their children. The top court extended the 2005 holding of McDermott v. Dougherty, a custody case, to the visitation realm, requiring that, before a court may examine whether visitation is in a child’s best interest, it must first make this threshold finding of unfitness or exceptional circumstances. In so doing, it overturned more than a decade of case law that does not require such threshold findings in visitation matters. “Though visitation decisions granting such privileges to third parties may tread more lightly into the protected grove of parental rights, they tread nonetheless,” Judge Glenn T. Harrell wrote for the court. “[T]he weight of the footfalls on that territory is sufficiently direct and substantial as to require rigorous scrutiny.” The decision remands the Koshkos’ case to the circuit court so that Andrea Koshko’s parents, John and Maureen Haining, may have an opportunity to produce evidence under the new standard. “The court’s ruling has clarified that the state is going to be subject to a strict scrutiny standard before it can intervene,” the Koshkos’ attorney, Peter T. McDowell, said, adding that “extraordinary circumstances” would indeed constitute a strict scrutiny standard. Parents have a fundamental right to make decisions regarding their children, he noted; and custody and visitation should not have two different standards. “If it’s a fundamental right, it’s a fundamental right,” he said. Judicial gloss The Hainings filed a petition in Baltimore County Circuit Court in April 2004 under Maryland’s grandparent visitation law. Enacted in 1981 and amended in 1993, the law provides that a court may grant grandparent visitation if it determines that it is in the best interests of the child. The Hainings had shared their New Jersey home with their daughter and her oldest child, born in 1994, for the first three years of the child’s life. In 1997, Andrea and the child moved out her parents’ house to live with Glen Koshko. The Koshkos married in 1998 and moved to Maryland, having two more children in 1999 and 2002. The Koshkos decided in October 2003 to sever all ties with the Hainings, following a family fight that had nothing to do with the grandchildren. At a two-day trial, the Hainings claimed that visits between the two families took place approximately once per month — 31 visits between May 2001 and October 2003. They also produced evidence of telephone cards, letters and cards between them and the children. The circuit court granted the Hainings’ petition, establishing a rolling schedule of four-hour visits every 45 days and quarterly overnight visits. The Court of Special Appeals affirmed that ruling last year. The top court agreed that the statute was valid on its face. Like the Court of Special Appeals, it “read in” a required recognition that fit parents are presumed to make decisions in the best interests of their children. But the Court of Appeals went a step further, requiring a threshold finding of either parental unfitness or exceptional circumstances before a court may inquire into what is in the child’s best interests. Del. Kathleen M. Dumais, D-Montgomery, a family law attorney, said the General Assembly should take at look at whether what the court has done is correct or whether the statute should be modified. After members of the family law bar have a chance to digest the opinion, she will work with them, she said. “It’s very difficult to legislate,” she said. “It’s a question of when does [grandparent visitation] hurt the children? If there’s a sense that the grandparent is a problem, when do you hurt the kid by forcing them” to visit with the grandparents? David R. Rocah of the ACLU said that since the court has essentially rewritten the grandparent visitation statute to conform it to constitutional limits, it would probably be a good idea to modify the statute to reflect that. But Leigh Goodmark, a professor at the University of Baltimore School of Law, said she doesn’t think the legislature needs to do anything. “The court’s reasoning makes perfect sense,” she said, adding that she’s been looking for years for a clear articulation of the standard for grandparent visitation cases following the 2000 Supreme Court visitation case of Troxel v. Granville. “The harm standard is an appropriate standard for these kinds of cases.” Both Rocah and Goodmark believe that a grandparent who has been sufficiently involved in a child’s life would be able to show harm under the new standard. “If there was a close continuing relationship with the child and the child was going to be hurt because of the absence of the grandparent in their life, that’s exceptional circumstances,” Goodmark said. But Richard S. Victor, a lawyer and executive director of Grandparents Rights Organization in Michigan, said it’s never a good idea to force children to be amputated from their grandparents. “Any time you put a harm standard in there, it’s more than the Supreme Court said was needed [in the 2000 Supreme Court case of Troxel v. Granville],” he said. “Troxel doesn’t go this far.”

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