The Courts go to great lengths to protect parental rights when making child custody decisions in divorce cases, with the presumption being that a parent should have custody of their child. Given the dynamics of modern family life, it is becoming more frequent that parties such as grandparents may ultimately be awarded custody. This is illustrated by an opinion this month from Maryland’s intermediate appellate court called Natasha Burak v. Mark Burak.
The opinion indicates that the Buraks became husband and wife in 2006, and in June 2008 had a son. In 2011, husband and wife bought a home using $131,000 from the husband’s parents (the grandparents). In 2013 after they separated, the wife had temporary custody of the child, but when the two spouses sued each other for divorce the Court allowed the grandparents to intervene as parties in the case to seek custody of their grandson. After a week long hearing, the trial judge awarded sole legal and physical custody of the child to the grandparents which the husband accepted, and the wife appealed.
The appellate court noted that although there are constitutional parental rights, the ultimate determination in a child custody case is the best interests of the child. The presumption in favor of a parent’s rights to custody can be overcome in favor of a third party like a grandparent if there is a finding that a parent is unfit or if there are extraordinary circumstances. Such circumstances can include the age of the child when a third party assumed care of the child, that age of the child, the possible emotional effects on the child of a change in custody, and the strength of the third party’s emotional ties with the child.
In this case, the appellate court found that the trial judge did not abuse his discretion in awarding custody to the grandparents. It noted evidence that supported a finding that the mother was unfit, noting evidence of neglect, drug use and other factors. It also agreed that there were extraordinary circumstances, such as the child spending many weekends and week nights with the grandparents particularly when the parents used drugs, and the close ties between the grandparents and the child.
The appellate court did find that the judge erred in allowing the grandparents to participate in the divorce property dispute, in which they sought to get back the money they said they gave the parents for the house by claiming the gift was contingent on their staying together. Divorce property proceedings are only to end the marriage and divide marital assets between the spouses, not to litigate claims of third parties against them. This illustrates how the courts decide cases where parental rights to custody are challenged.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.