There is a recent Maryland appellate opinion that should be of interest to Maryland custody lawyers and their clients. It provides guidance to grandparents and others who are not biological or adoptive parents involved in custody or visitation disputes. Recent decisions have clearly established that parents have a fundamental constitution right to raise their children. Unless it can be established that a parent is unfit or there are “exceptional” or “extraordinary” circumstances, the parent will be awarded custody rather than a third party. Grandparents, relatives and persons who might be regarded as de facto parents have no rights in this legal calculation.

There is a heavy presumption in favor of the parent as opposed to all others. These decisions also have undercut grandparent visitation rights established in Section 9-102 of the Family Law Article by Maryland General Assembly. You will find a discussion of this issue in a prior posting on this site.

“ Grandparents, relatives and persons who might be regarded as de facto parents have no rights in this legal calculation.

In Green vs. Green, the child’s aunt and uncle won the right to continued physical custody against the mother who had sought to modify an existing custody order. They had originally obtained physical custody in a consent order entered into by mother and father. Mother filed a motion to modify, requesting that she be awarded physical custody following her completion of a substance abuse rehabilitation program. The trial court found that mother was a fit and proper parent. However, the court expressed concern about her continued use of alcohol even in moderation.

The court perceived a danger of relapse and concluded that this might be legally sufficient to constitute exceptional circumstances sufficient to deny her constitutional right to custody. However on appeal, aunt and uncle prevailed not based on the finding of “exceptional circumstances but because of father’s participation in both the original consent decree and his opposition to any modification.

The takeaway is that grandparents and other non-parents seeking visitation and/or custody should establish an alliance with and active participation of a parent whenever possible.