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The Battle for Grandparent Visitation Continues

Offit Kurman Attorney Featured in the Daily Record

Navigating the rights of grandparents to see their grandchildren has been a tightrope walk that has long perplexed family law attorneys. Several state legislators have spent years trying to pass a bill in the General Assembly that would give grandparents the ability to independently go to court to get access to their grandchildren, only to come up against the constitutional right of biological parents to make decisions for their children.

When Maryland first passed a Grandparent Visitation Statute in 1993, Jeffrey N. Greenblatt received lots of calls from grandparents looking to get visitation and were successful in doing so. Then, in 2007, the Court of Appeals adopted a new standard in Koshko v. Haining, holding that a grandparent must show the parent is unfit or there are exceptional circumstances under which the child could be harmed if visitation is not granted. If that hurdle is passed, courts will look at whether visitation is in the best interest of the child.

But the unfitness or exceptional circumstances standard is extremely difficult to prove, Greenblatt said, describing Koshko as “a dagger in the heart of grandparent visitation.”

“Since 2007, I think I’ve gotten one call,” from grandparents seeking visitation, said Greenblatt, a principal at Joseph, Greenwald & Laake P.A. in Rockville. “They scratch their heads and walk away.”

Disputes over grandparent- or other third-party visitation usually revolve around a specific set of circumstances, most commonly when one parent dies and the living parent does not want the grandparents to see their grandchildren. In cases where the parents are divorced, normally the grandparents on the visiting parent’s side see the grandchildren when they are with the visiting parent. But many visitation cases are factually complex. In Burak v. Burak, for example, the Court of Special Appeals last year found exceptional circumstances and granted visitation to the grandparents who looked after a child while his parents used drugs and engaged in a polyamorous relationship. The Court of Appeals granted a petition for writ of certiorari in the case in March.


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