Grandparents as De Facto Parents: Custody or Visitation Rights to the Child

There is nothing quite like the love of a grandparent or the love for a grandchild. The grandparent-grandchild relationship is a special one. So special that several countries have a National Grandparents Day! But what happens when the grandparent is, in fact, the de facto parent? What custody, or even visitation rights does the grandparent—a third party in the eyes of the law—have to the grandchild?

A common misconception in family law is that there are rights of third parties (e.g., grandparents) to custody of, or visitation with, a child.  It is becoming more and more prevalent in modern society for a grandparent to raise his or her grandchild. This circumstance could arise for many reasons; it may be that a parent is deployed, continuing his or her education, working full-time, or generally absent from the child’s life.  These circumstances often result in a grandparent assuming the role of the parent. The legal rights of that grandparent are, however, very limited.

The Law

Maryland has a grandparent visitation statute that generally allows grandparents to file a complaint with the court requesting court-ordered visitation.  However, the case law imposes a high burden to meet in order for a grandparent to successfully obtain court-ordered custody or visitation.

In the case law, there is a presumption that parents will act in their child’s best interests, and the courts will therefore generally uphold a parent’s choice to allow or deny grandparents custody or visitation.  A parent has a fundamental constitutional right to the care and custody of his or her child.  See Troxel v. Granville, 530 U.S. 57, 66 (2000).  In order to be successful in petitioning the court for custody or visitation rights, a grandparent must first overcome this presumption. Absent outright consent by the parents, the grandparent is required to prove parental unfitness or other exceptional circumstances demonstrating a detriment to the child were grandparent visitation or custody denied. For instance, if a child was raised from birth by the grandparent and both parents are deemed unfit, then the grandparent may overcome the presumption. But even after that threshold is met, the grandparent has to prove that it is in the child’s best interests for the court to award visitation or custody. More often than not, if the grandparent overcomes the threshold question, the court will find that it is in the child’s best interests to have court-ordered custody or visitation with the grandparent. Overcoming the threshold question is a very difficult endeavor, however, because of the potential conflict with a fundamental constitutional right.

Proposed Legislation

There is a recent push in the legislature to incorporate family law case law, including standards and factors to analyze certain issues, into a statute where it is more easily accessible to lawyers and pro se litigants. A recent bill, HB0421, was introduced to the legislature attempting to incorporate portions of the aforementioned case law into Maryland’s grandparent visitation statute. However, the bill received an unfavorable report.  A separate bill, HB1232, seeks to establish custody or visitation rights for a de facto parent.  This bill was recently introduced to the legislature and includes several additional proposed amendments to the family law statutes governing children.  A de facto parent is a person who assumes the role of a parent—often a grandparent who raises the child.  Currently, Maryland does not recognize de facto parents and therefore does not afford automatic custody or visitation rights.  If passed, this legislation could change that.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.