Should a Grandparent’s Right to Visitation Supersede the Rights of a Natural Parent?

Lerch, Early & Brewer's Legal Update

As the traditional family nucleus evolves, courts and legislatures are grappling to address the best interests of children. Grandparents, step-parents and other third parties are increasingly acting in a parental role. The Department of Health & Human Services Administration on Aging notes that approximately 11% of all children in Maryland live in households without either of their natural parents, of which 7% reside with a grandparent. Thus, the courts and legislators continue to expand the role of third-party rights to make decisions for a child. A key question is how much power a third party should have over a child’s interests when it conflicts with parental rights. The struggle between these sometimes conflicting interests arises when grandparents battle with parents over visitation. Neither the courts nor the legislature has yet provided a definitive resolution.

In Maryland, the legislature tackled the issue by adopting a statute allowing courts to consider a petition by a grandparent for visitation of a minor child if it is in the best interests of the child. Interestingly enough, the statute does not provide any restrictions on the petition by the grandparent. For instance, a grandparent may petition for visitation even though the parents of the minor child have an intact marriage and contest the grandparent visitation. However, the law has not closed the debate as to the role of a grandparent over that of a natural parent, and this issue continues to arise in the courts.

The Court of Appeals of Maryland set forth the following standards to be used in determining whether to grant visitation to a grandparent:

  • The nature and stability of the child’s relationships with its parents;
  • The nature and substantiality of the relationship between the child and the grandparent;
  • The potential benefits and detriments to the child (in granting the visitation order);
  • The effect (if any) grandparental visitation would have on the child’s attachment to his or her nuclear family;
  • The physical and emotional health of the adults involved; and
  • The stability of the child’s living and schooling arrangements.

The Court of Appeals also added a few caveats. It includes the disruption of the child’s schedule and the psychological toll that the visitation may incur on the child, especially if there remains an issue of collusion between the grandparent and non-custodial parent.

Although Maryland’s highest court and the state legislature appear to support the role of grandparental visitation, this issue remains hotly debated. As recently as 2000, the U.S. Supreme Court held in Troxel v. Granville that a Washington state statute providing child-visitation rights to paternal grandparents violated a mother’s Fourteenth Amendment due process right to raise her own children.

Based upon this Supreme Court decision, petitioners soon questioned the constitutionality of the Maryland statute. In two separate and distinct decisions, the Court of Special Appeals upheld the constitutionality of the Maryland grandparent statute, but determined in one of the cases that the application of the statute to the specific facts of the case violated a natural parent’s due process rights. The Court of Special Appeals carefully provided in both opinions that each petition must be addressed on a case-by-case basis.

Although the courts have attempted to clarify the matter, the role of grandparental visitation remains controversial and often the court’s analysis depends or is determined on a case-by-case factual basis. The Maryland court decisions provide some insight as to the court’s interpretation of the issue; however, as the definition of “family” continues to broaden, the matter is likely to remain unsettled for some time.

Rhian McGrath is an attorney in the firm’s Family Law group. For more information about grandparent visitation rights, contact her at (301) 907-2804 or

This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.


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