CHILD CUSTODY by M9fCD9

VIEWS: 80 PAGES: 9

									VISITATION/THIRD PARTY




                 March 30, 2004
                     Review
Custody (Parent v. Parent)
STANDARD/MAJ:
• Best Interests (Multifactor discretionary standard
  w/limits imposed by Constitution nexus test)
• Emerging Reforms: Rule-based presumptions: joint
  custody (handful of states); approximation standard
  (ALI)
PROCESS
• Trad. Adversarial Trial (Rose v. Rose)
• Emerging Reforms: Parenting Classes; Parenting Plans;
  Mediation
       Visitation (Parent/Parent)
Standard: Best Interests of Child

Restrictions: What circumstances warrant?
              What kind of restrictions?
              If supervised, by whom?
       Third Party Custody and
              Visitation
Custody Standard: (Parent vs. 3rd party)

Presumption that it is in best interests of child
to be in parent’s care unless parent is unfit (or,
in some juris including MD, “other”
extraordinary circumstances).
        Third Party Visitation
             Troxel v. Granville

Wash. Visitation Statute:
 “Any person may petition the court for
 visitation rights at any time,” and the court
 may grant visitation whenever “visitation
 may serve the best interest of the child.”
              Maryland Statute:
§ 9-102. Petition by grandparents for visitation.
An equity court may:
  (1) consider a petition for reasonable visitation of
  a grandchild by a grandparent; and
  (2) if the court finds it to be in the best interests
  of the child, grant visitation rights to the
  grandparent.

Constitutional?
  Third Party Visitation in MD after Troxel
• Brice v. Brice, 133 Md.App. 302 (2000)
  - Same facts as Troxel
  - MD grandparents statute not unconstitutional
      on its face but “the statute was unconstitutionally
      applied to the facts in this case.”
• Frase v. Barnhart, 379 Md. 100 (2003)
  - Visits sought by neighbors who had cared for
      child for about 6 weeks
  - “The Due Process Clause does not permit a state
      to infringe on the fundamental right of parents to
      make child-rearing decisions simply because a
      state judge believes a better decision could be
      made.”
• Herrick v. Wain, 154 Md. App. 222 (2003)
  - Same facts as Troxel
  - The presumption in favor of the parent’s
     proposed visitation schedule “may be
     rebutted by affirmative evidence that the
     schedule would be detrimental to the child’s
     best interests.”
• DuBell v. Andrews – parent vs. grandparent
     visitations case challenging const. of MD
     grandparent statutes; oral argument scheduled
     for April 5th, Court of Special Appeals
      Standard After Troxel v.
            Granville?
Unclear but can say:
Absent Unreasonable Denial of Visitation, Fit
 Parents’ Decisions About Circumstances
 Under Which Children Should Visit With
 3rd Parties Should Be Accorded Special
 Weight.

								
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