Koshko v. Haining

Decision Date12 January 2007
Docket NumberNo. 35, Sept. Term, 2006.,35, Sept. Term, 2006.
PartiesGlen KOSHKO, et ux. v. John HAINING, et ux.
CourtCourt of Special Appeals of Maryland

Peter T. McDowell, Towson, for petitioners.

Karen A. Wyle, Bloomington, IN, Wayne C. Griffin, Frederick, brief of The Coalition of the Restoration of Parents' Rights, for petitioners, amicus curiae.

Stephen J. Kleeman, Towson, for respondents.

Suzanne Sangree, Roscoe Jones, Jr., Francis D. Murnaghan, Jr., Stephen Ruckman, Baltimore, for Public Justice Center, L. Tracy Brown, Towson, for Women's Law Center of Maryland, Leigh Goodmark, Jane C. Murphy, for Univ. of Baltimore Family Law Clinic, David R. Rocah, Baltimore, for ACLU of Maryland, brief of the ACLU of Maryland, the Public Justice Center, the University of Baltimore School of Law Family Law Clinic, and the Women's Law Center of Maryland, amici curiae.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, GREENE and JOHN C. ELDRIDGE (retired, specially assigned), JJ.

Opinion by HARRELL, J.

This case requires us to consider a constitutional challenge to Maryland's grandparental visitation statute ("GVS"), Maryland Code (1984, 2004 Rep l. Vol.), Family Law Article § 9-102.1 Specifically, we are asked to decide whether the GVS is unconstitutional, under substantive due process analysis, because it fails to recognize a rebuttable presumption accorded the propriety of a parent's determination of what is in his or her child's best interest with respect to visitation with a grandparent. We further shall consider whether substantive due process requires a threshold finding of either parental unfitness or exceptional circumstances counseling in favor of grandparent visitation before a court may proceed to determine what is in a child's best interests.


The instant case involves a bitter familial conflict centered around Petitioners', Glen and Andrea Koshko's, opposition to visitation by their minor children (Kaelyn, Haley, and Aiden) with the children's maternal grandparents, Respondents, John and Maureen Haining. The origins of the discontent between the adults harkens back to events long passed. It may have began as early as when then-Andrea Haining was living with her parents in Middletown, New Jersey. At age eighteen, Andrea left her parents' home, assertedly to escape the rancor of her parents' persistent and occasionally violent feuding, and moved to Florida with her boyfriend, James Atkats. While in Florida, Andrea became pregnant with her first child, Kaelyn. Mr. Atkats deserted Andrea and his unborn child. The young mother-to-be returned to New Jersey to live with her parents again. Andrea gave birth to Kaelyn on 26 September 1994. For the first three years of Kaelyn's life, she was raised in the Hainings' residence. Under this arrangement, the Hainings were active participants in Kaelyn's upbringing.

During Andrea's stay with her parents, she met and began dating Glen Koshko. In September 1997, Andrea and Kaelyn moved out of the Hainings' house in order to live with Glen in the nearby town of Point Pleasant. Due to the proximity of the couple's residence to Middletown, however, Maureen Haining maintained a close relationship with Kaelyn and visited often. Eventually, Glen and Andrea became affianced and, contrary to the plans and wishes of the Hainings, eloped in 1998. In June 1999, the newlywed couple and child moved to Baltimore County in connection with Glen's employment. At the time of the move, Kaelyn was nearly five years old. The family remained in Baltimore County throughout the times relevant to this litigation. The couple's two other children, Haley and Aiden, were born in Maryland on 21 August 1999 and 19 December 2002, respectively.

Undeterred by the physical distance between them, the Koshkos and Hainings visited one another approximately once a month until the parties became estranged in October 2003. The Hainings, at the trial of the present case, adduced various items of evidence, including photographs, videos, and E-Z Pass2 billings intended to corroborate this visitation regimen. Included in this evidence was a log compiled by the Hainings detailing the times and locations of the thirty-one visits that occurred between May 2001 and October 2003. The trial court also received testimony and documentary evidence of telephone calls, letters, and cards exchanged by the Hainings and the Koshko children, offered to illustrate the degree of closeness between the grandparents and grandchildren.

The familial dispute foreshadowed in this opinion erupted in October 2003, precipitated by the Hainings' vehement disapproval of Glen Koshko's approach to the deteriorating condition of his mother, who was then in the final stages of terminal cancer. The Hainings, particularly Maureen, felt that Glen was spending too much of his free time engaged in self-indulgent social activities, including a five-day trip to Glen's college homecoming in South Carolina, rather than visiting with his ailing mother. During a telephone conversation with Andrea the week after the homecoming trip, Maureen Haining proposed that the Koshkos travel to New Jersey so that Glen could visit his mother while the Hainings would look after the children. Andrea declined the invitation and indicated that Glen had a birthday party planned for that weekend. Maureen renewed her offer, observing that Glen's mother would not live much longer and that the Koshkos already had spent a long weekend recreating in South Carolina. Andrea related Maureen's comments to Glen and he joined the telephone call on an extension. He and Maureen had what can be described charitably as an unkind exchange of sentiments, resulting in Glen's assertion that the Hainings would not be allowed to see their grandchildren again. John Haining, hearing from his wife what transpired, confirmed the details with Andrea and then left a message on Glen's cell phone voicemail threatening to assault him later that evening in Maryland.

Following this contretemps, the Hainings apparently attempted on several occasions to make amends, which were rebuffed or ignored by the Koshkos. The Koshkos also disregarded a letter from Andrea's sister, Tracey, relating to the children's proposed roles in her wedding planned for August 2004. The Koshkos remained largely incommunicado from their extended family on the Haining side for approximately four months until an attorney engaged by the Hainings wrote to Glen and Andrea on or about 27 February 2004, suggesting mediation. The Koshkos responded to the suggestion by offering an arrangement permitting one visit with the children and the possibility of future visits based upon logistical considerations. The Hainings refused. Instead, the Hainings, unsuccessfully, demanded that the Koshkos commit to a consistent visitation schedule.

The Hainings filed their grandparent visitation petition on 19 April 2004 in the Circuit Court for Baltimore County. Following many months of motions and discovery, the petition was considered on its merits during a two-day trial in the Circuit Court. Ruling from the bench, the trial judge addressed the evidence adduced over the course of the hearing, concluding that the Hainings had rebutted the presumption in favor of the parents' determination of what is in their child's best interests. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality). The trial court entered an order granting the Hainings' petition, finding that visitation was in the best interests of the grandchildren. In addition to establishing a rolling schedule of four-hour visits every 45 days and quarterly overnight visits, the trial court directed that the Koshkos and Hainings attend at least four joint, professional counseling sessions to discuss issues relating to the visitation and "how the parties will re-introduce the Hainings back into the grandchildren's lives." The Koshkos unsuccessfully moved for a new trial and then appealed the judgment. The Court of Special Appeals affirmed the judgment of the Circuit Court. Koshko v. Haining, 168 Md.App. 556, 897 A.2d 866 (2006).

The Court of Special Appeals first addressed the Koshkos' contention that the Maryland GVS is facially unconstitutional in light of the Troxel decision.3 The intermediate appellate court relied on the principle of constitutional avoidance and held that the GVS implicitly contains the presumption that parents act in the best interests of their children. Koshko, 168 Md. App. at 570-71, 897 A.2d at 874-75. Next, the Court of Special Appeals disagreed with Petitioners' argument that the GVS was unconstitutionally applied to them because the best interest standard was engaged without a threshold determination of parental unfitness or exceptional circumstances, suggested as necessary in custody cases by McDermott v. Dougherty, 385 Md. 320, 869 A.2d 751 (2005). The intermediate appellate court, relying on this Court's holding in Fairbanks v. McCarter, excused the need for such a threshold finding based on the lesser intrusion on parental rights occasioned by visitation decisions relative to custody decisions. Koshko, 168 Md.App. at 582, 897 A.2d at 882 (citing Fairbanks, 330 Md. 39, 48, 622 A.2d 121, 125-26 (1993)). The court distinguished McDermott, a third party custody case, from Fairbanks, a third party visitation case, and refused to venture the view that McDermott impliedly overruled Fairbanks with respect to the need for a threshold finding of parental unfitness or exceptional circumstances. Koshko, 168 Md.App. at 583-84, 897 A.2d at 882-83. Finally, our appellate colleagues turned to the argument that the trial court had applied incorrectly the presumption favoring the parents' decision, to the benefit of the grandparents. Primarily emphasizing the relationship between the Hainings and their grandchildren, particularly Kaelyn, and the feud between the Hainings and Koshkos, the...

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