Maryland has a grandparent visitation right statute that purportedly permits a court to order reasonable visitation by a grandparent of a grandchild if the court finds such visitation to be in the “best interests” of the child.[1] In that case, the court held that the parents have the constitutional right to regulate who visits with their children and that right would include visitation by the child’s grandparents. Rather than strike down the statute, the Court of Appeals held that the trial court first must make a threshold finding of parental unfitness or of exceptional circumstances before it can proceed to determine that it would be in the best interest to have the grandparents given visitation. It is only under those circumstances that a grandparent may secure visitation rights over the objection of the parents.[2]
[1] Family Law § 9-102.
[2] Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007). The Koshko court relied on a string of earlier Maryland cases to reach this result and relied, in part, to the plurality decision by the U.S. Supreme Court in Troxel v. Granville, 530 US 57, 120 S.Ct. 2054 (2000). The Troxel court in the decision by Justice O’Connor struck down a Washington state statute similar to the one in Maryland that permitted grandparents to enforce visitation on a showing that such visitation would serve the best interests of the child. Justice O’Connor held that such a statute violated the substantive due process rights of the mother who wanted to preclude the visitation by the parental grandparents following the death of the children’s father holding that the parent has the fundamental right to make decisions concerning the care, custody, and control of their children. Interestingly, Justice Thomas, who was effectively raised by his grandparents, concurred with Justice O’Connor’s decision stating that the state of Washington lacks a legitimate interest “in second-guessing a fit parent’s decision regarding visitation with third parties.” For a discussion of the importance of his grandfather to him, See Clarence Thomas, My Grandfather’s Son: A Memoir (Harper Collins 2007). What constitutes “exceptional circumstances” has been determined in custody dispute cases but never directly in a grandparent visitation case. See Aumiller v. Aumiller, 183 Md.App. 71, 959 A.2d 849 (2008).
