Sunday, November 13, 2005

Case Law Development: Exceptional Circumstances Supporting Award of Custody to Grandmother over Biological Father

In a tragic case, the Maryland Court of Special Appeals reversed the trial court's award of sole custody of three children (ages 11, 10 and 9) to the 72-year-old grandmother after their Mother was murdered.  For some time, Father and Mother had had joint custody, however, before her death, Mother was attempting to secure sole custody of the children as Father was suffering from AIDS and his health was deteriorating. 

The trial court found that Father's poor health did not make him unfit to care for the children.  Nonetheless, the court found that there were "exceptional circumstances" supporting the custody award to Grandmother, including the fact that Grandmother had been the before- and after-school caregiver for the children since they were small, that they went to live with Grandmother immediately after Mother's death, and that Grandmother's house was near to their school.  The court of appeals reversed and remanded for further findings.  Specifically, the court directed that, in order to find exceptional circumstances, the court must conclude that giving custody to the parent would be "significantly detrimental" to the child. Further, should the court find exceptional circumstances under this test, the court must evaluate the best interests of the child in light of the following factors, among others:
[1] length of time the child has been away from the bio-logical parent,
[2] the age of the child when care was assumed by the third party,
[3] the possible emotional effect on the child 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 inten-sity 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.

B.G. v. M.R., 2005 Md. App. LEXIS 281 (November 7, 2005)
Opinion on the web at http://www.courts.state.md.us/opinions/cosa/2005/1761s04.pdf (Last visited November 11, 2005 bgf)

http://lawprofessors.typepad.com/family_law/2005/11/case_law_develo_14.html

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