After raising their own children, many older adults find themselves in the position of raising their grandchildren. For some, caring for grandchildren is necessary to provide help with daycare, babysitting and other day-to-day activities for working parents. But some situations require more substantial measures to secure the grandchildren’s safety, health, and overall well-being. These measures may involve court intervention where grandparents and other third parties will need to petition the court for custody, visitation rights, guardianship, de facto parenting, or adoption of their minor children. A judge will decide all matters involving children – under the age of 18 – and their care based on state laws and what’s in the best interest of each child.

THIRD-PARTY CUSTODY/VISITATION

When a third-party files for custody of a minor child, the person is referred to as a third party with respect to the matter before the court. This term is merely used to distinguish any party seeking custody, including grandparents, from the natural parent, adoptive parent, or de facto parent. Under Maryland Law, grandparents do not have legal rights to custody or visitation of their grandchildren.

The courts presume that the parents are, by law, the natural and rightful custodians of their children. However, although difficult, third parties may seek custody of a minor child when there is evidence that the parents are unfit to raise children or when extraordinary circumstances exist that interfere with the parents’ ability to properly care for a child. The court may find a parent unfit if there is evidence of parental abuse, neglect, abandonment, mental illness, or other factors that may place a child’s well-being at risk. The court also must consider exceptional circumstances in making a third-party custody determination, which include:

• how long parents were separated from their children and, before seeking to reclaim the children, their ages when the third party assumed care;
• the relationship between the children and their parents;
• the nature and strength of the relationship between the children and the third party; and
• the impact of custody on the children’s physical and emotional welfare and their future, among other considerations

A judge, in deciding the matter, will use these factors to weigh a decision that ultimately will be in the best interest of the child.

DE FACTO PARENTING

In 2016, the Maryland courts granted parental rights to de facto parents. By definition, a de facto parent is not a biological or adoptive parent, or even a third-party custodian, but rather a person who has formed a strong bond with a child and, as a result, would like to petition the court for custody and visitation rights.

In this situation, the individual seeking child custody and visitation is no longer considered a third party or required to prove parental unfitness or exceptional circumstances with respect to the biological or adoptive parents if the following criteria are met:

• the biological or adoptive parent must have consented to and fostered the relationship between the de facto parent and the child;
• the de facto parent and the child lived in the same household;
• the de facto parent provided significant parental functions to support the child’s overall development and care; and
• a parent-child bond was formed.

This new development is significant in that it allows individuals who have assumed a parental role with the child, such as stepparents and same-sex couples, to continue that relationship with the child, all in the child’s best interest.

GUARDIANSHIP OF CHILDREN

Guardianship is a legal process in which the individual seeking guardianship petitions the court for appointment to manage the physical and/or financial affairs of the child. The naming of a guardian for a child in a Last Will and Testament is not enough to obtain guardianship. Guardianship is an appointment that is made solely by the court.

Generally, there are three types of guardianship:

• guardianship of person (cares for the physical and personal needs of the child);
• guardianship of property (oversees and makes decisions regarding the child’s financial affairs); and
• guardianship of both person and property

More than one person may be appointed as a guardian – depending on the facts and circumstances of the matter and considering what is in the best interest of the child. Some circumstances in which guardianship may be sought are when both parents die and/or when the child inherits a large sum of money, for example.

When petitioning for child guardianship, the consent of the parents should be obtained, whenever possible. All parties with an interest in the child also must be notified of the impending proceeding and be given an opportunity to accept or reject the appointment and to request a different guardian than the one who is petitioning the court. 

Obtaining guardianship for a child is a complicated procedure and, as in most legal matters, should be handled by a skilled attorney who practices in this area of the law. Petitioning for custody versus guardianship are two entirely different legal processes with distinct rules. So, it is important to seek the advice of an attorney to determine the best legal approach for both the grandparent and the child.

ADOPTION

A person may file a petition with the court and have a court hearing to seek adoption of a child. Any adult, other than the natural parents, may petition for adoption. This includes grandparents provided the court finds the petitioner(s) fit and able to care for the child – and that adoption is in the best interest of the child.

Adoption, once granted, establishes a new parent-child relationship – very much like the relationship nurtured by natural parents – but severs the natural, biological parents’ duties and responsibilities for the child.

Often, the child’s parents are deceased. However, if the natural parents are still living or a guardian is caring for the child, those individuals must be notified of the intention to adopt and be permitted to object to the action.

There are several types of adoption – public agency, private agency, and independent adoptions. Each type is associated with distinct rules and regulations, including time constraints related to consent matters and court rulings.

Seeking adoption is often a happy occasion but can pose its own set of challenges. So, it is recommended that an attorney is hired to assist the individual who seeks to adopt a child.

If you have limited income and are interested in pursuing legal help or have questions regarding the topics discussed in this article, feel free to contact Maryland Volunteer Lawyers Service at 410-547-6537. Our intake line is open Monday through Thursday from 9 a.m. to 12 p.m. 

Nancy Grimm is a family law staff attorney at Maryland Volunteer Lawyers Service.