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In a situation where both parents seek custody, each parent proceeds in possession, so to speak, of a constitutionally protected fundamental parental right. Neither parent has a superior claim to the exercise of this right to provide care, custody, and control of the children. Md. Code Ann., Fam. Law § 5-203(d)(2) (1999 & 2004 Supp.). Effectively, then, each fit parent's constitutional right neutralizes the other parent's constitutional right, leaving, generally, the best interests of the child as the sole standard to apply to these types of custody decisions. Thus, in evaluating each parent's request for custody, the parents commence as presumptive equals and a trial court undertakes a balancing of each parent's relative merits to serve as the primary custodial parent; the child's best interest tips the scale in favor of an award of custody to one parent or the other. When the dispute is between a fit parent and a private third party, however, the parties do not begin on equal footing in respect to rights to care, custody, and control of the children. The parent is asserting a fundamental constitutional right. The third party is not. A private third party has no fundamental constitutional right to raise the children of others. Generally, absent a constitutional statute, the non-governmental third party has no rights, constitutional or otherwise, to raise someone else's child.
By the time of the current dispute there had been a lengthy series of events in the dispute over the custody of Patrick Michael McDermott, born April 30, 1995, to Charles David McDermott and Laura A. Dougherty. After the parents divorced and the mother's substance problems resulted in incarceration, the father tried to care for his son, with whom he had a close bond, but he had to return to his career as a merchant marine captain. He accepted the grandparents' help in caring for the son, not knowing the mother had given them an ex parte authorization to exercise custody in her stead. When he returned, he resumed physical custody, but when he once again had to return to sea, he made other arrangements to have the son remain with the couple who had kept house for both of them while he was at home. The grandparents sought custody, and the trial court found that such an award was in the son's best interest. Mr. McDermott appealed this decision to the Court of Special Appeals, which affirmed the lower court's decision. The intermediate appellate court subsequently denied Mr. McDermott's Motion for Reconsideration and thereafter he petitioned for a Writ of Certiorari.
Did the trial court err in awarding the custody of Patrick to his grandparents without first determining that both natural parents are unfit to have custody of their children or that extraordinary circumstances exist which are significantly detrimental to the child remaining in the custody of the parent or parents?
The court of appeals clarified that the true rule in Maryland was the one followed in the majority of states, that a best interests analysis was inappropriate in the fact of a fit parent's constitutional and common law right to raise his child. Although that presumption of a fit parent's right to custody could be overcome by exceptional circumstances, the fact that the father's occupation required absences, during which he had made appropriate arrangements, was not such a circumstance.