Landmark Ruling: Grandparent and Third-Party Visitation Now More Likely in Maryland

For years there was no right to “Grandparent Visitation” in Maryland. There was little chance that any unrelated “Third Party” (someone who was not a biological, or adoptive parent) could succeed in getting a Maryland Court to award Third Party visitation with a child over a parent’s objection. It was considered a “fundamental right” of parents to direct and govern the care, custody and control of their children. This meant that unrelated individuals who wanted court-ordered custody or visitation had to prove that the parents were unfit, or that exceptional circumstances existed, and also prove that it was in the child’s best interest for that Third Party to have custody or visitation.

Exceptional circumstances were difficult to prove in court, and Third Parties with a strong bond to children were often denied formal visitation. Custody or visitation was most likely to be granted when the parents were absent, or because of injuries or drug addictions, were incapable of taking care of a child. When a formerly drug-addicted parent was ready to resume custody, and their own parent disagreed that they were ready, litigation often ensued. After contentious litigation, there were heartbreaking stories of grandparents, or other friends or relatives who had raised children for years, being completely cut-off from those children after litigation. Whether one agreed with the policy that biology trumped almost all, the policy came under increasing pressure in recent years after the legalization of same-sex marriage and the incidence of “de facto” parents as those same-sex couples began having children. The landmark case that just changed Maryland law is Michelle L. Conover v. Brittany D. Conover, No. 79, September Term 2015. Although the Conover case involved a former lesbian couple, the new law applies to anyone with a relationship to a child that might qualify that person as a “de facto parent”.

A “de facto” parent under new Maryland law is an adult with whom the biological or adoptive parent “consented to, and fostered” a “parent-like relationship with the child;” that the de facto parent and child lived together in the same household; that the de facto parent “assumed obligations of parenthood,” and where the de facto parent was in the parental role long enough to establish “a bonded, dependent relationship parental in nature.”

Now that Maryland has recognized “de facto” parents, children are more likely to maintain formal relationships with the individuals who raised them regardless of biology. The law of Maryland has always been to grant custody and visitation in “the best interests of the child.” That hasn’t changed. The Conover case simply allows a Court to consider what’s in the best interest of the child without a showing that a parent is unfit, or that there are exceptional circumstances. This new test may reduce the acrimony that goes along with contested custody cases. Hopefully children will have the adults in their lives that have always been there for them, including grandparents.