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 (
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.