Grandparent Visitation in Maryland

On Wednesday, June 2, 2010, the Maryland Court of Special Appeals decision in Brandenburg v. LaBarre (2010 WL 2179774 (MD.App.)) reversed a finding of the Circuit Court of Maryland for Anne Arundel County of exceptional circumstances for grandparent visitation, holding that “The [grandparents] bore the ultimate burden of showing harm and they failed to present the court with facts from which it could draw a reasonable inference of significant deleterious effect.”  Contact, closeness of relationship, etc are no longer enough–if a grandparent wants visitation, s/he must show the grandchildren are suffering actual harm by not seeing them.  This makes grandparent visitation very difficult as its virtually impossible to show actual harm if the grandparents can’t have access to the grandchildren.

This Court created a new test in Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007) that a threshold showing of either parental unfitness or exceptional circumstances is required before grandparental visitation can be ordered. In Bradenburg, this court stated that

The trial court was not permitted to draw an inference from the mere amount of time the children once had spent with the grandparents and the generally loving and bonded relationship they had had with them that the cessation of contact between the appellees and the children had harmed the children. The LaBarres bore the ultimate burden of showing harm and they failed to present the court with facts from which it could draw a reasonable inference of significant deleterious effect.

This court further considered the type of evidence of harm that grandparents might present to satisfy the exceptional circumstances threshold, concluding that “[e]xpert testimony may be desirable and, frequently, may be necessary” to meet the burden imposed in Koshko. Id. at 85, 972 A.2d 905.

The current case law in Maryland confirms that parents have a constitutional right to raise their children as they see fit. This presumption is very difficult to overcome.

Now, grandparent’s visitation rights are in jeopardy. One result from this decision will be that grandchildren will be forced to testify in court about how sad and upset they are about not seeing their grandparents anymore as the best way for grandparents to make a case. Grandparents will need to reconcile with their children and not openly criticize their children if they desire to have a relationship with their grandchildren.

Custody litigation in general and specifically grandparent visitation cases can be difficult and affect the lives of all involved. They take many months to years to litigate and can be very costly to pursue. To overcome the current threshold of exceptional circumstances, “expert” testimony will be required increasing the already high costs to all parties involved in this type of litigation.