Diamant Gerstein, LLC had a satisfying week in court last week. Susan Edmonds, a grandmother whose daughter was murdered in 2015, took in her granddaughter, and her daughter’s other children as well, raising her, caring for her and loving her. Then, when Mother was murdered, Child Protective Services ordered Ms. Edmonds to turn the child over to the child’s natural, biological father. The father is an abusive man. The child does not know the father, has never lived with the father, and received no support from the father.
Ms. Edmonds took the drastic, and very rare, step of filing something called a Complaint for Custody Based On Exceptional Circumstances with the Prince George’s County Circuit Court. It was a long struggle, as grandparents do not routinely have rights to custody of their grandchildren. A natural parent is always favored. There is a two-prong test a Court would have to consider:
- What is the exceptional circumstance (and it had better truly be exceptional); AND
- Is it in the best interest of the child that a grandparent have custody.
Grandparent and other third party Maryland child custody and visitation rights. The law in Maryland appears below:
| Maryland Family Law § 9‑102 provides that an equity court may consider a petition for reasonable visitation of a grandchild by a grandparent; and if the court finds it to be in the best interests of the child, grant visitation rights to a grandparent. In the case of Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007), the Court of Appeals held that “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. Accordingly, we overrule the portions of Fairbanks, Maner, Beckman, Herrick, and Wolinski that are inconsistent with this holding.” The Court of Appeals said that “At any hearing on a petition, the petitioners must produce evidence to establish their prima facie case on the issue of either parental unfitness or exceptional circumstances as well as evidence sufficient to tip the scales of the best interests balancing test in their favor.” In Janice K. v. Margaret K., 404 Md. 661, 948 A.2d 73 (2008), the Court of Appeals held that Maryland does not recognize “de facto” parenthood status and held that in order to overcome the “constitutional rights of a legal parent to govern the care, custody, and control of his or her child, even a person who would qualify as a de facto parent, who seeks visitation or custody, must demonstrate exceptional circumstances” or parental unfitness as a prerequisite to the court’s consideration of the best interests of the child.In our case this past week, the Magistrate agreed with us: Ms. Edmonds met the burden of proving the exceptional circumstances in her case, and the grandchild also testified, indicating it was in her best interest that her grandmother have custody of her. The Magistrate ordered Ms. Edmonds to have temporary custody of her grandchild, while a custody evaluation was done.
This case is far from over, but we are one step closer to breaking new ground and hope that other grandparents seeking custody of their grandchildren not lose hope. |
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