Grandparents are 'third parties' in the eyes of the law

Why must a grandparent who wants a legal right to custody or visitation with grandchildren argue that the children's parents are unfit or there are some exceptional circumstances? a reader asks.

Short answer: because the law strongly favors parents' rights. A more complete answer involves judges' reasoning.


Maryland does not have a statute specifically defining and protecting parental rights. But the state code family law article states that parents, "are the joint natural guardians of their children." The code gives parents joint and individual responsibility for their child's, "support, care, nurture, welfare, and education."

The law treats grandparents who seek visitation or custody of their grandchildren as "third parties." Third party status means the court will decide in the parents' favor, unless the grandparents prove that they are the child's de facto parents, exceptional circumstances exist or the parents are unfit.

A de facto parent acts as a parent, with the consent of the birth parent. If grandma has been living with the child and taking care of him like a parent, she has a good argument that she is a de facto parent.

If grandma qualifies as a de facto parent, she is not guaranteed custody. But she will get past third party status, so the court will decide custody or visitation issues based on the child's best interest. Grandma and parents will have an equal chance at custody or visitation.

"Exceptional circumstances" that would give grandparents a hearing based on the child's best interest vary. Grandparents generally must prove it would be detrimental to the child if they were barred from contact with him. If grandma raised the child from birth, she may be able to overcome the presumption in favor of the parent and get a "best interest of the child" hearing.

If both parents are deemed unfit, grandparents seeking custody or visitation qualify for a court decision based on the child's best interest. A parent may be deemed unfit if he or she fails to provide for the child, if there is physical, emotional or sexual abuse, or if a child under 8 years old is left unattended at home or in a car.

The Maryland Court of Appeals set out presumptions in favor of parents for custody and visitation issues in a 2007 case. The grandparents in the case had criticized the children's father, who then cut off their visits with the children.

The court interpreted Maryland's grandparent visitation statute to require judges to start with a presumption that parents have the right to determine whom their children may visit.

"There must be a finding of either parental unfitness or exceptional circumstances demonstrating the current or future detriment to the child, absent visitation from his or her grandparents, as a prerequisite to application of the best interests analysis," the court held.

If grandparents and parents are willing to discuss the issues, they might try an alternative to lawsuits such as mediation. The informal process would give them an opportunity to craft their own plan to allow the child a relationship with both parents and grandparents — in everyone's best interest.

Donna Engle is a retired Westminster attorney. Reach her with questions or feedback at 410-840-2354 or Her column, which provides legal information but not legal advice, appears on the second and fourth Sunday each month in Life & Times.