Awarding custody involves balancing the child’s best interest with their parent’s constitutional right to raise them as they see fit. Courts may also award custody to non-parents.
Parents and non-parents
A parent means legal parent under Maryland’s family law. There are many ways to establish parentage.
Nonparents include a de facto parent who is treated like a parent because of their relationship with the child. This is established where the legal parents agreed to and promoted this relationship, the non-consenting parent is unfit or there are exceptional circumstances. De facto parents also lived with the child, perform significant parental functions, and have a bond with the child.
Grandparents may seek custody and visitation rights. They are classified as third parties unless they are de facto parents.
Courts are unlikely to award visitation to grandparents if the parents object unless they can show that the parent is unfit or there are exceptional circumstances where the absence of grandparent visitation will have a harmful impact on the child.
Stepparents usually lack parental rights or responsibilities after divorce unless they adopted the child or were declared guardians. However, the stepparent can challenge this by showing exceptional circumstances, they are a de facto parent or that the other party is unfit.
Parental unfitness and exceptional circumstances
Courts consider the child’s best interest when ruling on visitation. Courts usually respect the custodial parent’s wishes and presume that their proposed schedule is in the child’s best interest.
Grandparents and other third parties must demonstrate that the legal parent is unfit or there are exceptional circumstances to overcome this presumption.
Courts may consider the following when determining parental unfitness:
- The parent neglected the child and showed manifest indifference to their welfare.
- Child abandonment.
- The parent inflicted or allowed another person to commit physical, sexual, or emotional harm to the child.
- The parent has an emotional or mental illness that has a negative effect on their ability to care for the child.
- The parent renounces their duties to care and provide for their child.
- The parent took part in behavior that is harmful to their child’s welfare.
Courts consider the following when deciding whether there are exceptional circumstances:
- Amount of time the child was away from their biological parent.
- Child’s age when a third party took over care.
- Possible emotional effect of changing custody on the child.
- Time that passed before the parent tried to reclaim custody.
- Type and strength of ties between the child and the third party.
- Strength and authenticity of the parent’s desire to assume custody.
- Stability and certainty of the child’s future under a parent’s custody.
Attorneys can help protect the child’s best interest. They can also represent your rights.