Grandparent Visitation Rights in Maryland
FAMILY LAW - GRANDPARENTAL VISITATION STATUTE - STATUTE INTERPRETED TO CONTAIN REBUTTABLE PRESUMPTION FAVORING PARENTAL DECISION AS IN CHILD’S BEST INTERESTS
FAMILY LAW - GRANDPARENTAL VISITATION STATUTE - STATUTE INTERPRETED TO REQUIRE THRESHOLD FINDING OF PARENTAL UNFITNESS OR EXCEPTIONAL CIRCUMSTANCES TO TRIGGER BEST INTERESTS INQUIRY
Facts: Glen and Andrea Koshko are the custodial parents of three minor children, Kaelyn, Haley, and Aiden. The couple met and began dating after then-Andrea Haining moved back into her parents’, John and Maureen Hainings’, home in Middletown, New Jersey. Andrea purportedly had left the Hainings’ residence initially to escape the acrimonious environment there, but returned from Florida after a former boyfriend abandoned her when she became pregnant. On 26 September 1994, Andrea gave birth to Kaelyn, who was raised in her grandparents’ home for the first three years of her life. During this time, the Hainings were very involved in Kaelyn’s upbringing. In September 1997, Andrea and Kaelyn moved out of the Hainings’ residence to live with Glen in nearby Point Pleasant, New Jersey. Despite the move, Maureen Haining maintained a close relationship with Kaelyn and visited her often. Eventually, Glen and Andrea became affianced and, contrary to the plans and wishes of the Hainings, eloped in 1998. In June 1999, the newlywed couple and Kaelyn moved to Baltimore County in connection with Glen’s employment. At the time of the move, Kaelyn was nearly five years old. The family has remained in Baltimore County. The couple’s two other children, Haley and Aiden, were born in Maryland on 21 August 1999 and 19 December 2002, respectively.
From the time the Koshkos moved to Maryland until October 2003, the Koshkos and Hainings maintained a regular visitation regimen. The families essentially took turns traveling to one another’s homes once every month. In between visits the grandparents and grandchildren maintained a relationship via correspondence. This visitation regimen abruptly ceased in October 2003 when the adults of the two families became embroiled in a bitter argument over Glen’s approach to his terminally-ill mother’s deteriorating condition. The Hainings perceived Glen to be nonchalant in this regard. Apparently disturbed by the Hainings’ criticism, Glen Koshko asserted that he would no longer permit the Hainings to visit their grandchildren. Despite the Hainings’ repeated attempts over several months to reconcile their dispute with the Koshkos and reestablish visitation, the Koshkos remained largely incommunicado. The Hainings retained an attorney in an effort to facilitate some discussion, which was answered by the Koshkos’ proposal to allow a single visit and the possibility of future visitation. The Hainings refused, declining to accept anything less than a commitment to regular visitation with the grandchildren.
On 19 April 2004 the Hainings filed in the Circuit Court for Baltimore County a grandparent visitation petition pursuant to the Maryland Grandparental Visitation Statute (GVS). The trial court entered an order granting the Hainings’ petition, finding that visitation was in the best interests of the grandchildren. In addition to establishing a rolling schedule of four-hour visits every 45 days and quarterly overnight visits, the trial court directed that the Koshkos and Hainings attend at least four joint, professional counseling sessions to discuss issues relating to the visitation. After an unsuccessful bid for a new trial, the Koshkos appealed the judgment of the Circuit Court.
The Court of Special Appeals affirmed the judgment, holding that the GVS was neither facially unconstitutional nor unconstitutional as applied to the Koshkos as claimed. Koshko v. Haining, 168 Md. App. 556, 897 A.2d 866 (2006). The intermediate appellate court rejected the argument that the GVS violated the Koshkos’ fundamental right to parent, as articulated in Troxel v. Granville, 530 U.S. 57 (2000) (plurality), simply because it failed to contain an express rebuttable presumption that parental decisions are in the best interests of children. Under the principle of constitutional avoidance, the court interpreted the GVS to contain such a presumption. The Court of Special Appeals then disagreed with the Koshkos’ position that there must be a threshold finding of either parental unfitness or exceptional circumstances as a predicate to the statutorily-imposed best interests of the child inquiry. Finally, the court affirmed the visitation award upon a finding that the grandparents had rebutted successfully the presumption in favor of the Koshkos’ decision to terminate visitation. The Koshkos petitioned the Court of Appeals, which granted the petition and issued a writ of certiorari to consider the Koshkos’ substantive due process challenge to the GVS.
Held: The GVS, codified at Maryland Code (1984, 2004 Repl. Vol.), Family Law Article § 9-102, permits a Maryland court to grant grandparents reasonable visitation with their grandchildren upon a finding that to do so was in the children’s best interests. The express terms of the statute, however, do not prescribe that courts apply a presumption in favor of parental decisions relating to third party visitation with their children. The U.S. Supreme Court held in Troxel that substantive due process principles require that court determinations of third party visitation cases under the best interest of the child standard must be informed by a parental presumption. Maryland law also contained a long-settled presumption that parental decisions are in a child’s best interests. Rather than invalidate the Maryland statute on its face, the Court of Appeals, under the principle of constitutional avoidance, interpreted the GVS to contain the presumption, as had the Court of Special Appeals.
The Court, however, concluded, under strict scrutiny analysis, that the GVS was unconstitutionally applied to the Koshkos because the statute lacked sufficiently narrow tailoring to the State’s interest in children’s welfare vis-a-vis the children’s beneficent exposure to grandparents. Strict scrutiny was triggered because the statute implicated the Koshkos’ fundamental right to parent. Specifically, the GVS imposed a “direct and substantial” interference with the Koshkos’ decision regarding visitation by interjecting the State and third parties, without a claim to a constitutional right to visitation, into the custodial parents’ decision-making process. This process is generally left to the discretion of fit parents, who are presumed to act in the best interests of their children. The Court found this direct interference also to be substantial in nature. Although visitation matters may prove to be less weighty an intrusion upon the parental presumption than custody and adoption matters in the non-constitutional realm, for purposes of substantive due process analysis, third party visitation disputes impede just as substantially upon the fundamental right to parent as do custody and adoption disputes. In order to remedy this lack of narrow tailoring in the statute, the Court again employed the principle of constitutional avoidance and applied the GVS with a judicial gloss. This gloss requires a threshold finding of parental unfitness or exceptional circumstances demonstrating the detriment that has or will be imposed on the children absent visitation by their grandparents before the best interests analysis may be engaged. This parental unfitness/exceptional circumstances test was an extension of a third party custody case, McDermott v. Dougherty, 385 Md. 320, 869 A.2d 751 (2005). The Court reasoned that custody and visitation matters generally have been decided under the same standards and that the fundamental right to parent is equally at risk from undue state interference in the context of both custody and visitation determinations. Accordingly, the parental unfitness/exceptional circumstances safeguard imposed in third party custody determinations appropriately should be applied in third party visitation matters as well. The Court thus overruled its precedent in Fairbanks v. McCarter, 330 Md. 39, 622 A.2d 121 (1993), and progeny, that held such threshold findings unnecessary in third party visitation cases. The Court remanded the case for application of the new threshold requirement.
Glen Koshko, et ux. v. John Haining, et ux., 398 Md. 404 (2007). Opinion by Harrell, J.
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