Fleming & Curti, P.L.C. - Grandparent Visitation Rights Analyzed By Maryland Courts

FEBRUARY 19, 2007 VOLUME 14, NUMBER 34

Grandparent Visitation Rights Analyzed By Maryland Courts

Families today seem to be much more fluid than in the past. With divorce and remarriage, couples living together without marrying, and parents moving easily and frequently, relationships between children and their grandparents too often become strained or even broken—and too often the root source is animosity between grandparents and custodial parents of the minor children.

A recent state appellate court case reviews the developing law of grandparents’ visitation rights with their grandchildren—this time in Maryland. The family dynamics between John and Maureen Haining and their daughter Andrea Koshko and her husband Glen Koshko unquestionably affect Andrea Koshko’s three children, Kaelyn, Hailey and Aiden. The final result of their grandparents’ efforts to have regular visitation will now be reconsidered by the trial judge who initially heard the dispute nearly three years ago.

Andrea Koshko and her daughter Kaelyn lived with the Hainings for several years after Kaelyn’s birth. After she met and married Glen Koshko, Andrea’s parents maintained regular visitation with Kaelyn and the two children born to Andrea and Glen. But the relationship between the Hainings and the Koshkos was often strained.

For one thing, the Hainings did not approve of what they saw as Glen’s failure to attend to his own mother during her final, fatal illness. During a telephone conversation in October, 2003, the two couples exchanged harsh words, and the Koshkos vowed that the Hainings would not see their grandchildren again. Although the Hainings attempted to make amends, and Andrea’s sister tried to approach the Koshkos on the family’s behalf, no further contact was allowed; the Hainings finally filed a lawsuit asking the court to order visitation with the three grandchildren.

The trial judge agreed that the Hainings should be entitled to visit with their grandchildren, and the intermediate state appellate court affirmed that decision. The state high court, however, has now reversed that ruling and returned the case to the trial court for further proceedings.

The high court, like the two lower courts, started with the premise that federal constitutional law requires that parents’ decisions about visitation must be presumed to be valid. After that, however, the high court added another requirement: grandparents seeking visitation must establish either that (1) the parents are unfit or (2) “exceptional circumstances” exist before beginning any analysis of the children’s best interests—requiring new hearings in the trial court. Koshko v. Haining, January 12, 2007.

Arizona courts have not adopted precisely the same analysis, but the argument is persuasive. Though grandparent visitation laws have been upheld in most of the appellate cases challenging them as constitutionally infirm, state courts have struggled with how to reconcile the grant of rights to grandparents with the presumptive rights of parents. Once the U.S. Supreme Court addressed the issue, albeit inconclusively, in Troxel v. Granville in 2000, the emphasis shifted away from a simple analysis of the grandchild's best interests to a more complicated review of parents' rights. Most of the subsequent appellate decisions impose additional requirements on state statutes purporting to give grandparents visitation or custody rights. The Maryland decision simply makes clear that there must be some basis for the state to intervene in parental decision-making.

The Koshko v. Haining case also makes clear that visitation orders are not fundamentally different from custody determinations. The Maryland high court notes that visitation is, in a sense, just a time-limited custody arrangement; the type of evidence required to permit imposition of a visitation order is similar to that required to allow a non-parent to secure custody.

Does this mean that grandparents have no rights at all, or rights that are so limited as to be worthless? Not at all. Where the relationship between grandparent and grandchild is both long and deep, many states will permit the grandparent to seek visitation rights even though the grandchild's parents refuse to allow contact. Some of those states will only permit the non-custodial parent's parents to seek court-ordered visitation, or limit the law's applicability to cases where the parents are divorced or one parent is deceased. Arizona, for example, only permits grandparents to seek visitation rights through the court in cases where the parents have been divorced for at least three months, one parent has been missing for at least three months, or the child was born out of wedlock. State laws vary widely, and judicial interpretations in the wake of the U.S. Supreme Court's ruling vary even more widely.