Custody Cases and Extended Family

There is no decision that a trial judge has to make that is more difficult than resolving a dispute over who should have custody of minor children. In this day and age when extended family members are often intimately involved in the lives of children, and often help raise them, courts have struggled with how to resolve disputes over whether a parent or an extended family member should be awarded custody. Maryland’s intermediate appellate court last week issued an opinion in the case of B.G. v. M.R. (initials being used to protect the children’s identity), which well illustrates these issues.

The opinion relates that B.G. and his wife had three minor children, and when they got divorced they entered into a joint custody arrangement whereby the children lived with each parent on alternating weeks. The wife’s mother participated in this arrangement by providing regular day care for the children, and was otherwise extremely involved in their lives. B.G. was then diagnosed as HIV positive, and when he did not take his medication he developed serious health problems. Eventually he was laid off from his job and went on Social Security disability, but then got treatment and his health began improving.

The wife then moved to modify the custody arrangement, and after originally agreeing to let her have custody, B.G. decided to fight the issue and got a lawyer. His ex-wife was then tragically murdered in her home when the children were present. The grandmother immediately came to take the children. B.G. thereafter got an apartment so the kids could live with him, and then sought full custody of the children. The grandmother, M.R., claimed that she was a better custodian for them, arguing that they could stay in the same schools if they lived full time with her and that given B.G.’s health issues she was a better person to have custody. The trial judge ultimately agreed with the grandmother and awarded her custody, and B.G. appealed.

The appellate court reversed for reconsideration by the trial court, and in so doing explained current Maryland law on custody disputes between parents and “third parties.” It said that the parent is presumed is to be the proper custodian, and a non-parent had the burden of overcoming this presumption. To do that, the third party had to show either that the parent was not a fit and proper person to have custody, or that there were extraordinary circumstances that would overcome the presumption that custody should go to the parent. Extraordinary circumstances would include such things as the length of time the children had been away from the parent, the age of the children when care was assumed by the third party, the emotional effects of a change on the children, the time frame since the parent sought custody, and the genuineness of the parent’s desire for custody.

The Court said that unless the father was unfit, or extraordinary circumstances shown, the trial court should not get to the general balancing test used in custody cases, the “best interest of the child” test. In this case, the trial judge had interviewed the children and taken other evidence, but had not followed the extraordinary circumstances test as described by the Court, so the case was reversed to reconsider the decision in light of these factors.

Such cases show that the rights of parents are still favored in the law, at least where they are fit and proper parents, and show the difficulties faced even by other relatives in child custody battles.