Many grandparents have close relationships with their grandchildren and act more like parents rather than grandparents. It is not uncommon for grandparents to raise their grandchildren. The Brookdale Grandparent Caregiver Information Project reports that the number of grandparents raising grandchildren in the U.S. has increased by 50 percent in the last decade. U.S. Census data revealed 16,314 children in Maryland live with just their grandparents. Many grandparents would like to have legal custodyof their grandchildren, or at least have legal visitation rights. Maryland grandparents should understand the state’s regarding their rights to be in their grandchildren’s lives.
The U.S. Supreme Court has recognized that people have the fundamental right to raise their own children. As such, anyone looking to deprive a person of the right to raise his or her child must meet a high burden of proof that the person is unfit to parent. The court presumes that the parent is the best person to raise his or her child, but extraordinary circumstances can override this presumption such as chemical dependency, neglect, abuse or mental illness. Maryland courts have stated that, as protectors of children, the court has a duty to act in the best interests of the child and will remove the child from his or her parents if it is in the child’s best interests.
Maryland’s laws do not give any preference to grandparents over other third parties in seeking custody of a child; in custody matters there are only “parents” and “third parties.” However, the court will take into account the closeness of the relationship of the child and the third party petitioning for custody when weighing circumstances justify removing a child from his or her parents.
Other factors the court will consider include:
- The length of time the child has been away from the biological parent
- The age of the child when the third party assumed care
- The possible emotional effect on the child of a change of custody
- The period of time which elapsed before the parent sought to reclaim the child
- The intensity and genuineness of the parent's desire to have the child
- The stability and certainty as to the child's future in the custody of the parent
Maryland’s statutes only briefly mention grandparents’ rights to visitation with grandchildren. The statute gives courts authority to grant “reasonable” visitation if it is in the child’s best interests. The statute does not define how to assess the child’s best interests, but the court has stated that it presumes that fit parents act in their children’s best interests. A grandparent petitioning for visitation therefore either needs to show that the parent is unfit or that there are “exceptional circumstances”, whereby the child would suffer a detriment if the grandparent were not granted visitation.
Custody and visitation matters hinge on the individual circumstances of each family. If you are seeking custody or visitation with a grandchild, contact an experienced attorney who can discuss your situation with you and advise you of your options.