VISITATION/THIRD PARTY March 30, 2004

Review Custody (Parent v. Parent) STANDARD/MAJ: Best Interests (Multifactor discretionary standard w/limits imposed by Constitution nexus test) Emerging Reforms: Rule-based presumptions: joint custody (handful of states); approximation standard (ALI) PROCESS Trad. Adversarial Trial (Rose v. Rose) Emerging Reforms: Parenting Classes; Parenting Plans; Mediation

Visitation (Parent/Parent) Standard: Best Interests of Child Restrictions:What circumstances warrant? What kind of restrictions? If supervised, by whom?

Third Party Custody and Visitation Custody Standard: (Parent vs. 3 rd party) Presumption that it is in best interests of child to be in parent’s care unless parent is unfit (or, in some juris including MD, “other” extraordinary circumstances).

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. 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.