Maryland Divorce Lawyer Blog
Last year, this blog covered an interesting ruling by the Court of Special Appeals in which the court ruled an adult sibling found to be a Child In Need of Assistance (CINA) had no rights to visit with her younger siblings against their parents’ wishes. Recently, the Court of Appeals issued a new decision in this case.
As noted in other blog posts, parents of minor children have a fundamental right to make major decisions about the care, custody and control of their children. Usually third parties who want visitation against the parents’ wishes have to make a showing of exceptional circumstances such that the court failing to grant visitation would have a very detrimental effect on the children. The earlier ruling followed a Supreme Court ruling about a Washington statute where the Court ruled a statute that didn’t give parents’ beliefs a presumption of acting in the child’s best interests was unconstitutional.
In this case, an older sister born in 1993 wanted to visit her half-siblings over the objections of her father from whom she was estranged after being declared a CINA. She had been deemed a CINA after her father wouldn’t let her come back home to him, his new wife and their two small children. Her own mother had committed suicide and she had alleged her father was abusive.
Originally a lower court decided that it was appropriate for her to have visitation with her siblings. The master in the case had recommended supervised visitation because the older sister, who was also still a minor, would suffer significant deleterious effects from not getting to visit her younger brothers. There was no finding about the effect of a lack of visitation on her brothers and the older sister became an adult during the process.
However the Court of Special Appeals reversed because the older sister hadn’t shown exceptional circumstances. The older sister petitioned the Court of Appeals to review three questions. The biggest question was whether Maryland case law required a woman previously found a CINA who wanted visitation with her siblings against parental wishes to make a showing of exceptional circumstances before getting visitation. The appellate court ruled yes.
The Court of Appeals noted that “exceptional circumstances” in custody cases involving parents are based on multiple factors including the amount of time a child has been away form a biological parent, the age of the children, the emotional effect on children, the period of time that elapsed before a parent reclaimed a child, the nature of the parent-child relationship, the genuineness of the parent’s desire to have a child, stability of the child’s future in his parent’s custody.
The Court explained that though the sister saw herself as someone not within the third party-designation, she actually did fit within that designation because she was not a parent. She was a third party who did not have constitutionally protected parental rights.
Therefore, the Court concluded that absent exceptional circumstances, the constitutional right is the ultimate determining factor. Only if the parents are unfit is the best interest of the child test to be applied. The court also noted that the sister’s younger half-brothers were the children of someone who was not the sister’s biological parent. Therefore, the siblings’ mothers views was entitled to the same amount of respect as the parents in the earlier case Koshko, requiring deference to parents’ wishes in third party visitation cases.
The Court affirmed the ruling of the Court of Special Appeals, which reversed the lower court. However, it sent the case back to the lower court to consider whether there was jurisdiction to order sibling visitation and to refocus the lower court’s analysis on whether there was a deleterious effect on the younger brothers, rather than their half-sister.
If you are dealing with difficult and sensitive visitation issues, contact an experienced Maryland family law attorney for representation. Our office may be able to guide through this challenging process.
More Blogs:
Corporal Punishment in Maryland Family Law, Maryland Divorce Lawyer Blog, January 26, 2013
Untimely Objections in Maryland Family Law, Maryland Divorce Lawyer Blog, January 10, 2013