Third Party Visitation/Modification of Custody andVisitation Decisions April 1, 2004

Custody and Visitation Review 1)Parent vs. Parent Visitation Standard Majority: Best Interests but presumption that visitation with non-custodial parent in best interests of children - Use of Restrictions to Preserve Visitation Even Where Non-Cust Parent’s Fitness is an Issue - Disconnect Rule for Child Support/Visitation - Variety of Other Sanctions for W/holding Visitation 2)Parent vs. Third Party Custody Standard Majority: Presumption in favor of parent unless parent unfit or other extraordinary circumstance 3)Parent vs. Third Party Visitation Standard?

Third Party Visitation Wash. Visitation Statute: “Any person may petition the court for visitation rights at any time,” and the court may grant visitation whenever “visitation may serve the best interest of the child.” Troxel v. Granville

Maryland Statute: § Petition by grandparents for visitation. An equity court may: (1) consider a petition for reasonable visitation of a grandchild by a grandparent; and (2) if the court finds it to be in the best interests of the child, grant visitation rights to the grandparent. Maryland Case Law: No Limit on Third Party Standing to Seek Visitation Constitutional?

Third Party Visitation in MD after Troxel Brice v. Brice, 133 Md.App. 302 (2000) -Same facts as Troxel -MD grandparents statute not unconstitutional on its face but “the statute was unconstitutionally applied to the facts in this case.” Frase v. Barnhart, 379 Md. 100 (2003) -Visits sought by neighbors who had cared for child for about 6 weeks -“The Due Process Clause does not permit a state to infringe on the fundamental right of parents to make child-rearing decisions simply because a state judge believes a better decision could be made.”

Herrick v. Wain, 154 Md. App. 222 (2003) -Same facts as Troxel -The presumption in favor of the parent’s proposed visitation schedule “may be rebutted by affirmative evidence that the schedule would be detrimental to the child’s best interests.” DuBell v. Andrews – parent vs. grandparent visitations case challenging const. of MD grandparent statutes; oral argument scheduled for April 5 th, Court of Special Appeals

Standard After Troxel v. Granville? Unclear but can say: Absent Unreasonable Denial of Visitation, Fit Parents’ Decisions About Circumstances Under Which Children Should Visit With 3 rd Parties Should Be Accorded Special Weight.

Problem Minn. Stat (2)(b) (1998 & Supp. 2001) provides for “reasonable visitation” to persons who have lived in the child’s household for two or more years, if the court finds that (1) visitation rights would be in the best interests of the child, (2) the petitioner and child had established emotional ties creating a parent and child relationship, and (3) visitation rights would not interfere with the relationship between the custodial parent and the child.

Other Custody Issues 1)Child’s Voice in Custody Case Methods? a) Witness b) Chambers Interview c) Expert Testimony d) Appoint Counsel (1) Waiver of Priv. (2) Advocate Child’s Preference (3) Best Interests 2) Modification of Custody/Visitation Decisions: Custodial Parent Relocation

Modification Standard in Maj. of Jurisdictions (including MD) Two-step: 1)Is there a substantial and material change in circumstances? 2)If so, court will reexamine custody decision and decide whether modification of custody is in best interests of child.

MD: Gestl v. Frederick, 133 Md. App. 216 (2000) (“defacto parent” has standing to seek visitation”)