Grandparent Custody Rights After Burak v. Burak

The case of Burak v. Burak was decided by the Maryland Court of Appeals in August of 2017.  The case involved issues relating to a grandparent’s custody rights as compared to a biological parent’s custody rights. The Court of Appeals’ decision overruled a Maryland Court of Special Appeals’ decision which affirmrd a Circuit Court’s decision which gave the  grandparents custody of their grandchildren instead of the children’s biological parents.

The facts of the Burak case concerned  a very hotly contested custody case in which the grandparents claimed that the biological parents’ actions were detrimental to their grandchildren and required that they, the grandparents, be awarded custody.

In Their opinion, the Maryland Court of Appeals clearly outlined the factors that were required to consider prior to awarding custody to a 3rd party/grandparent. In Its decision, the court considered the following:

  1. Parents are Presumed Fit to Have Custody of Their Children

The Due Process Clause of the 14th Amendment affords parents the right and responsibility of raising their child/children as they see fit. This presumption exists unless or until the 3rd party seeking custody shows that the parent is unfit and extraordinary circumstances exist.

       2  Exceptional Circumstances Must be Shown by Clear Evidence

Exceptional circumstances also known as the Hoffman factors are as follows: (1) the length of time the child has been away from the biological parent; (2) the age of the child when care was assumed  [**939]  by the third-party; (3) the possible emotional effect on the child [***140]  of a change of custody; (4) the period of time which elapsed before the parent sought to reclaim the child; (5) the nature and strength of the ties between the child and the third-party custodian; (6) the intensity and genuineness of the parent’s desire to have the child; and (7) the stability and certainty as to the child’s future in the custody of the parent. See id.; see also McDermott, 385 Md. at 419, 869 A.2d at 809. (Ross v. Hoffman, 280 Md. 172, [372 A.2d 582] (1977))

        3. Parental Unfitness Must be Shown

The extraordinary factors regarding grandparent custody/3rd party custody must be considered together with the factors relating to parental unfitness.  Showing parental unfitness requires the following: (1) the parent has neglected the child by manifesting such indifference to the child’s welfare that it reflects a lack of intent or an inability to discharge his or her parental duties; (2) [***154]  the parent has abandoned the child; (3) there is evidence that the parent inflicted or allowed another person to inflict physical or mental injury on the child, including, but not limited to physical, sexual, or emotional abuse; (4) the parent suffers from an emotional or mental illness that has a detrimental impact on the parent’s ability to care and provide for the child; (5) the parent otherwise demonstrates a renunciation of his or her duties to care and provide for the child; and (6) the parent has engaged in behavior or conduct that is detrimental to the child’s welfare.

       a.  Additional Requirements for Showing Unfitness

Absent a showing of a voluntary forfeiture by a biological/natural parent’s rights  there must be a showing of clear and competent evidence that the natural parent seeking custody is guilty of … misconduct or neglect to a degree which renders that parent an unfit and improper person to be entrusted with the care and upbringing of their child.

In Burak v. Burak, the Court of Appeals citing the Grover case reasoned that:[t]o justify the courts’ depriving parents of the care and custody of their own children, the parents special unfitness must be shown by evidence that is clear and conclusive and sufficient to make it appear that the necessity for doing so is imperative. Ordinarily and generally, it must be established that their condition in life, character and habits are such that provision for the children’s’ ordinary comfort, their intellectual and moral development cannot reasonably be expected at their [***118]  hands. Application of Grover, 1984 OK 20, 681 P.2d 81, 82 (Okla. 1984)

      4.  Parental Unfitness and Extraordinary Circumstances Must be Established Prior to Applying                 The Best Interest of The Child Standard

The Burak decision clearly demonstrated that grandparents are not on equal footing with biological parents.  The grandparent/3rd  party seeking custody must show extraordinary circumstances and parental unfitness prior to the court applying the Taylor factors which outline what is in the child’s best interest. The Court of Appeals’ decision in Burak v. Burak clearly protects the rights of a biological parent over the rights of a grandparent/3rd party.

(see also Taylor v. Taylor, 306 Md. 290, 508 A.2d 964, 1986 Md. LEXIS 237) (1986).

If you have issues relating to custody involving a grandparent/ 3rd party and a biological parent, it is imperative that you seek legal representation.

The Law Office of Lynndolyn Mitchell represents parties in custody matters involving biological parents seeking custody and cases involving third (3rd) parties seeking custody.

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