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Recent Maryland Court of Special Appeals Decision Rules that Parents Do Not Need to Show a Material Change in Circumstances in Order to Modify Visitation with Third Parties

On June 3, 2009, in the case of Barrett v. Ayres, the Maryland Court of Special Appeals found that Sharon Barrett did not need to show a material change in circumstances in order to modify the current set visitation schedule between her daughter and her daughter’s paternal grandparents, Bryan and Helen Ayres. Sharon Barrett had agreed to a visitation schedule between her daughter and the Ayres after her husband was seriously injured in a car accident in 2004. However, the relationship had become strained and Sharon believed that it was no longer in her daughter’s best interest to visit with her grandparents. The Court stated a parent’s decision that their child’s visitation with a third party should be modified is a material change in and of itself. The burden then shifts to the third party to establish that the parent is unfit or other exceptional circumstances exist. In this case the grandparents now have the burden to prove the parents are unfit or exceptional circumstances exist.

While not seemingly an issue in the Barrett case, some factors used to assess fitness include parental characteristics such as age, stability, and the capacity and interest of a parent to provide for the emotional, social, moral, material, and educational needs of the child. If the Court finds a parent to be fit, the next issue is whether such exceptional circumstances exist to determine what is in the minor child’s best interest in terms of visitation and/or custody. In cases of both custody and visitation there can be any number of factors used to determine whether exceptional circumstances exist. Historically, the Court often makes findings as to (1) nature and strength of ties between child and third party; (2) intense and genuine desire of third party to have custody/visitation of the child; (3) stability and certainty of child’s future; and (4) emotional effect of changing custody. If the Court finds exceptional circumstances exist, then the Court will determine what is in the minor child’s best interest.

In custody matters, Maryland Courts presume that a child’s best interests are better served in the care and custody of his or her natural parents rather than a third party. The third party threshold showing is necessary because parents have a fundamental right to control the upbringing of their children, which includes with whom the children spend their time, i.e. with whom they have visitation. Barrett is a landmark decision in Maryland as it expands the 2007 decision in Koshko v. Haining to apply to not only initial determinations of third party custody or visitation, but also to modifications of it.