2012 - In Re: Victoria C. (Adult Sibling - 3rd Party Visitation)

In Re: Victoria C., 208 Md.App. 87, 56 A.3d 338 (2012)
 
Background: In a CINA proceeding, a child filed an ancillary petition for visitation with her minor half-siblings. The child's father and stepmother opposed petition. The Circuit Court entered a visitation order per the master's recommendation and denied the father and stepmother's exceptions.  DSS care and custody of the child terminated upon the child's majority. The father and stepmother appealed from denial of exceptions.
 
The Court of Special Appeals reversed, holding that:
 
  1. Child was required to establish exceptional circumstances indicating that lack of sibling visitation had significant deleterious effect upon minor half-siblings;
  2. No common-law presumption in favor of preserving sibling relationship applied to instant petition; and
  3. Child failed to establish deleterious effect amounting to exceptional circumstances warranting award of visitation over objection of half-siblings' parents.
 
The Court reiterated what it has held in other third-party custody/visitation cases – that, as a natural incident of possessing a fundamental liberty interest in directing and controlling the upbringing of their children, parents are entitled to the long-settled presumption that a parent's decision regarding the custody or visitation of his or her child with third parties is in the child's best interests. Citing grandparent visitation cases:  because grandparent visitation interferes with a fundamental right of the parent, the strict scrutiny standard applies, requiring a threshold showing of either parental unfitness or exceptional circumstances indicating that the lack of grandparental visitation has a significant deleterious effect upon the children who are the subject of the petition, in order to preserve fundamental parental liberty interests.
 
The Court went on to apply that strict scrutiny standard to this case dealing with an adult sibling, holding that the strict scrutiny standard applied to the adult sibling's petition for visitation with minor half-siblings, requiring a threshold showing of either unfitness of the minor half-siblings' parents or exceptional circumstances indicating that lack of sibling visitation had a significant deleterious effect upon the minor half-siblings, given parents' fundamental liberty interest in care, custody, and control of the minor half-siblings.  The Court found that there is no common-law presumption in favor of preserving sibling relationship.  “While the sibling relationship has long been recognized as an important one, which will be given significant consideration and protection by courts involving the family, it is not a relationship of constitutional dimension.”
 
There must be a finding of either parental unfitness or exceptional circumstances demonstrating the current or future detriment to the child, absent visitation from the third party, as a prerequisite to the application of the best interests analysis to a petition for third party visitation. The Court restated the factors used to determine exceptional circumstances in third-party custody matters:  (1) the length of time the child has been away from the biological 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 in 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.  The Court, however, went on to say that the factors used to determine the existence of exceptional circumstances in the context of third-party custody disputes “do not neatly translate to the realm of visitation disputes, and are not always particularly relevant or helpful in that context.”  “In the context of third-party visitation cases, a court focuses on the ability of the party seeking visitation to show future detriment upon the minor children if visitation is not permitted.”  “It is a weighty task for a third party to demonstrate exceptional circumstances which overcome the presumption that a parent acts in the best interest of his or her children and which overcome the constitutional right of a parent to raise his or her own children; mere speculative evidence of future harm to the minor children does not overcome this high evidentiary hurdle.”
 
In this case, the adult sibling failed to establish deleterious effect amounting to exceptional circumstances warranting award of visitation with her minor half-siblings over the objection of the half-siblings' parents; the adult sibling left the family home due to indicated finding of abuse against the father, when the half-siblings were aged three years and 18 months, and had very poor relationship with the father, no evidence indicated that the half-siblings had suffered any negative effect as result of the absence of visitation, and some evidence indicated that the half-siblings could be harmed by visitation by being drawn into the hostility between the adult sibling and the father.  The harm suffered by an adult as the result of a denial of visitation with minor children is not a consideration in a court's exceptional circumstances analysis; instead, the focus must be on whether a minor child is harmed by the absence of visitation.
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