Friday, January 12, 2007

Koshko v. Haining (Ct. of Appeals)

Filed January 12, 2007--Opinion by Judge Glen T. Harrell, Jr. Dissenting Opinion by Judge Dale R. Cathell

Maternal grandparents established significant relationship with the grandchildren while their daughter and first grandchild resided with them and after the daughter married and moved away. This substantial relationship encompassed the child that had resided under their roof, as well as two grandchildren born after their daughter moved away.

Following a family disagreement between the grandparents and husband on how the husband should act toward his dying mother, the daughter and her husband cut off all visitation. Grandparents brought an action for visitation in the Circuit Court for Baltimore County under the Grandparent Visitation Statute (GPS), found at Md. Fam.Law Code Ann.§9-102. The trial judge established a rolling schedule of four-hour visits every 45 days and quarterly overnight visits. The trial court also directed that the parents and grandparents attend at least four joint, professional counseling sessions to discuss issues relating to the visitation. After an unsuccessful bid for a new trial, the Koshkos appealed the judgment of the Circuit Court.

The Court of Special Appeals affirmed the judgment, Koshko v. Haining, 168 Md.App. 556, 897 A.2d 866 (2006), holding that the GVS was neither facially unconstitutional nor unconstitutional as applied to the Koshkos. The intermediate appellate court rejected the argument that the GVS violated the Koshkos' fundamental right to parent, as articulated in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality), simply because it lacked an express presumption that parental decisions are in the best interests of children. Under the principle of constitutional avoidance, the court interpreted the GVS to contain such a presumption. Upholding the trial court's order of visitation The Court of Special Appeals disagreed with the parents' position that there must be a threshold finding of either parental unfitness or exceptional circumstances as a predicate to the statutorily-imposed best interests of the child inquiry.

The Koshkos petitioned the Court of Appeals, which granted a writ of certiorari to consider the Koshkos' substantive due process challenge to the GVS.


The natural parents' decisions regarding the care, custody and upbringing of their minor children are presumptively correct which can only be overcome by a threshold showing of either parental unfitness or exceptional circumstances demonstrating current or future detriment to the child, absent visitation from his or her grandparents, as a prerequisite to application of the best interests analysis, overruling the portions of Fairbanks, Maner, Beckman, Herrick and Wolinski that are inconsistent with the ruling.

While less of an intrusion than custody, parents in a visitation case have a fundamental constitutional right to parent their children which is only rebutted by a showing of unfitness or exceptional circumstances.

In deciding the issue of fundamental constitutional rights afforded to parents the court stated that visitation was a temporary form of custody.

Because of the fundamental constitutional right afforded to parents, the proper standard in reviewing the constitutionality of the GVS is strict scrutiny.

Under the principal of constitutional avoidance, The GPS as interpreted and glossed by the Court of Appeals was not facially unconstitutional because of the requirement of a threshold finding of parental unfitness or exceptional circumstances demonstrating the detriment that has or will be imposed on the children absent visitation by their grandparents before the best interests analysis may be engaged.

In applying the strict scrutiny standard the Court held that the GVS was unconstitutional as applied.

In affected cases pending at the time this opinion was filed, where appropriate, courts may allow amendments to pleadings or the presentation of additional evidence in light of the holdings announced here. In cases filed after this opinion, the petitioners, in order to avert or overcome a motion to dismiss their petition, must allege a sufficient factual predicate in the petition so as to present a prima facie case of unfitness or exceptional circumstances, as well as invoking the best interest standard.

In a dissenting opinion, Judge Eldridge agreed that the GVS was not facially unconstitutional, but argued that the Court placed a great deal of reliance on Justice O'Connor's opinion in Troxel, which was not the opinion of the Supreme Court and did not appear to reflect the views of a majority of the Supreme Court.

Full opinion PDF.


Anonymous said...

With all due respect, the majority opinion of the Maryland Court Of Appeals missed the point. Visitation should not be held to the same strict scrutiny requirements as custody. The rights acoorded parents under the United States Constitution go directly towards a child's upbringing with respect to issues such as schooling, medical care, choice of religion, etc. Visitation does not impact these child-rearing decisions. In fact, there is no United States Supreme Court case law that supports the opinion of the Maryland Court of Appeals. This is a sad day in Maryland - given the facts of this case it appears that parents in Maryland have now been permitted an "absolute right" in all child-rearing decisions, contrary to United States Supreme Court case law. Given the wide disparity of decisions in this area by state courts of last resort, the grandparents in this case have a sound legal basis for petitioning the United States Supreme Court for a Writ of Certiorari. It is an important matter of public interest that the United States Supreme Court grant Certitorari should the grandparents proceed.

Anonymous said...

The Maryland Court of Appeals acknowleged the rights of fit parents with regards to grandparents suing under Maryland Family Law 9-102. Parents do have the "absolute right" to decide who can and cannot visit their children without state or governmental interference. Grandparents DO NOT have a fundamental/constitutional right to children that are NOT their own. This recent ruling, Koshko v Haining has overruled the past Maryland "case laws" regarding grandparent visitaion. That says something in itself.

Jerry Solomon said...

I must disagree with anonymous who said "The rights accorded parents under the United States Constitution go directly towards a child's upbringing with respect to issues such as schooling, medical care, choice of religion, etc. Visitation does not impact these child-rearing decisions. In fact, there is no United States Supreme Court case law that supports the opinion of the Maryland Court of Appeals. This is a sad day in Maryland - given the facts of this case it appears that parents in Maryland have now been permitted an "absolute right" in all child-rearing decisions, contrary to United States Supreme Court case law."

In fact who a child sees, visits and has contact with is a part of the fundamental rights of a parent. If a parent does not want a child to be exposed to a next door neighbor coming to visit then that is their right, and the state does not have the right to interfere with that decision. The removal of a child from a parent for any period of time is an intrusion in that parent's right to the upbringing of that child. Where would anonymous draw the line – at one hour a month, two hours a month, then days a month?

The blog is faulty in two areas. First, the Troxel case did pave the way for Koshko, so the statement that no Supreme Court law exists is clearly incorrect. Second, the parents do not have absolute rights. The have a presumption of correctness that is rebutted by a showing of either parental unfitness or extraordinary circumstances.

The Koshko case is a decision on the law, not the facts. It is the application of the law to the facts that the lower court must decide, and I believe that, under the holding in this case, can easily grant the grandparents visitation under the new guidelines.

I firmly believe that the point that the court is missing is the relative degrees of legal proximity that a third party or relative has to a child. The holding of Koshko and other cases ignores the relationship that a grandparent, step-parent and sibling may have with a child. Instead of balancing the parent's right against a sliding scale of based upon the degree of affinity that a third party has with the child the court has taken a black/white approach, comparing a third party relationship with a child with the state's relationship with the child. Many years ago the Pennsylvania court took this approach.

The placement of a child in a CINA case favors relatives. Relatives have greater standing than strangers because placement with relatives is less intrusive to the child than placement with strangers.

The problem with Koshko lies not with giving the parents fundamental right under the constitution. The problem with Koshko lies in not giving the grandparents any of the rights afforded to them by the legislature.

Karen said...

Parental unfitness or extraordinary circumstances. As far as I'm concerned it should have gone further, but this definately protects parents in MD to a degree it didn't before.

Yes, a visitation issue should be looked at with strict scrutiny. A parent has every right to make decisions concerning their children. They are the ones raising them, listening to them and determining what is in their best interest.

Sour grapes grandparents. Whether you like it or not, the parent has the right to make this decision.

Personally, I do not believe that the USSC would allow a writ of certori in this case. The MD court was very careful to abide by the Troxel ruling. There is nothing about this ruling that would be deemed unconstitutional by the high court.

Anonymous said...

"It is an important matter of public interest" that Maryland's children and fit parents be protected from over bearing in laws and their own parents/grandparents who feel they have a right to their own visitation schedule with the grandchildren and from frivolous grandparent visitation lawsuits.

It seems "anonymous" has an interest in the case and is implying they the grandparents, will petition the United States
Supreme Court...

For some, litigation for the right to someone else's children is never ending...

The courts did acknowledge and did NOT "miss the point" about the financial and emotional impact of a grandparent visitation case on the family and that courts need to take these cases and the parents rights seriously just as they do in a custody case. Grandparent visitation IS a form of custody and the courts should not just gloss over the fact that the parents care and control of their children are being impacted, challenged and changed to allow a third party unsupervised access with their precious child(ren) despite the fit parent(s) objections.

The court also acknowledges that the grandparents who force such suits upon the nuclear family need to be financially responsible as the Haining will now have to bear the cost of litigation of a lawsuit in which their was no parental unfitness/exceptional circumstances which would demonstrate detriment has or will be opposed on the child(ren). The lower courts overstepped their authority in granting the Haining’s visitation.

This case does set a dangerous precedent by requiring grandparents to prove “parental unfitness” since visitation would not help a child whose parents are unfit, other laws apply and grandparent visitation only affects fit parents who stand up for their rights and their children’s rights and who want to spend quality time with their kids rather than dumping them off at the grandparents. Requiring a grandparent to prove this could result in more frivolous lawsuits though requiring the grandparents to pay for the cost of litigation will send a clear message that you cannot use the courts to try to undermine the parent/child relationship just to make a point when grandparents don’t get along with the parents.

Dauger/Coalition for the Restoration of Parental Rights

Anonymous said...

J. Solomon wrote "The problem with Koshko lies not with giving the parents fundamental right under the constitution. The problem with Koshko lies in not giving the grandparents any of the rights afforded to them by the legislature." I respectfully disagree.
The legislature cannot create a right out of whole cloth for one section of the population that infringes on a fundamental right that another section of the population already possesses as afforded by the US Constitution. Grandparents have no legal responsibilites associated with their grandchildren - their participation in the lives of their grandchildren is completely voluntary. How then can a judge or a legislature even begin to think of infringing on a fundamental right (that of parents) in order to hand over artificial "rights" to a group just because they may want to exercize them?

Anonymous said...

Would anyone argue if a child is socializing with the "wrong crowd", would you not agrue that if a child is with a drug dealer the parent should not intervice?

I ask this because If a parent has the right to say no you can not spend time with the "wrong crowd" or drug dealer then a parent also has the right to say no to other persons. It goes back to the basic rule you want to raise your children safe, responsibly, and to the best of your ability.

By allow any undermining to this right is wrong. Yes there are some wonderful grandparents out there. However there are also bad ones. Think about the choice that is made when a parent has to say no. For a parent who has to make the decision to cut ties with their own parents and protect thier children should have that right. The ground for that dicision should not be dragged threw the courts system.

The parent and child has suffered enough to make the decision and should not be question to why. They are the parents. With all due respect if the government can not interfer with an abortion then the goverment can not interfer with child raising beyond exceptional and extrodinary circumstances.

Michael Hardee said...

It is about time the Court of Appeals stepped in and put an end to this Grandparent visitation cases. The parents have the children's best interest in mind and most important, a parents right to parent their child how they feel, should not be pushed aside. I recently went through a case with this exact issue and I am thankful for this recent decision.

Anonymous said...

I was quite disappointed to read some of the comments here. Mostly looks like parents, angry w/ grandparents. As a grandparent I have a question for the parents of these precious gems, why is it that the grandparents are great when providing financial support, being the sitter, love and care for a child(ren) that are not there own, but the instant a family feud breaks out the first thing that a parent does is stop visitation! Who is really being hurt, sure as grandparents we are, but the children are. Grandparents develop a special relationship w/ their grandchildren only for selfish mothers and fathers to strip away from them in a heartbeat. How do you explain to your child suddenly the grandparents no longer exist, they didn't die, they were stripped from controlling self centered parents who quite frankly are not interested in "WHAT'S IN THE BEST INTEREST OF THE CHILD", but more interested in saying "I'M IN CONTROL - SO "BACK OFF". Parents remember, these children do grow up some day and it will be shameful when they hate you for keeping them from someone who loved them very much for your own selfish reasons. Just because your feuding with your family, does not mean the children are! Grow Up, be happy you have a family that wants to be involved with your children. GO GRANDPARENTS!!!!!!!!!!!!!!!!!!!