McDermott v. Dougherty
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Charles D. McDermott v. Hugh J. Dougherty, Sr., et al. No. 58, September Term, 2004 Headnote: Merchant marine job of the father, requiring periods of several consecutive months at sea, did not constitute exceptional circumstances warranting award of custody of minor child to third-party maternal grandparents. In a private third-party case, where the third party is attempting to gain custody of a child[ren] from their natural parents, unless the natural parents are unfit or extraordinary circumstances detrimental to the child are found to exist, the best interests of the child standard normally does not apply. Circuit Co urt for Harfo rd Coun ty Case # 12-C-95-023852 IN THE COURT OF APPEALS OF MARYLAND No. 58 September Term, 2004 Charles D . McD ermott v. Hugh J . Dough erty, Sr., et al. Bell, C. J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Cathell, J. which Wilner, J. con curs Filed: March 10, 2005 This appeal arises as an outgrowth of the lengthy and unfortunately acrimonious dispute over custody of Patrick Michael McDermott (hereinafter Patrick or the child ), the minor son of petitioner Charles David McDermott (hereinafter Mr. McDermott ), between Mr. McDermott and respondents, Hugh and Marjorie Dougherty, the child s maternal grandparents, (hereinafter the Doughertys, or maternal grandparents ).1 The Doughertys, along with Patrick s paternal grandparents, who do not appear as parties to the instant appeal and do not now appear to support the Doughertys, filed a complaint in the Circuit Court for Harford County against their adult children, Mr. McDermott and Ms. Dougherty, for Third-Party Custody of Patrick on February 12, 2002. Trial on the matter of custody subsequently took place on July 1 and 2, 2003. The circuit court issued its decision on September 8, 2003, awarding the maternal grandparents sole legal and physical custody of the child based upon that court s finding that Ms. Dougherty was unfit, and, although not finding Mr. McDermott an unfit parent, the court found that his employment in the merchant marine, requiring him to spend months-long intervals at sea, constituted exceptional circumstances as that term was defined in Ross v. Hoffman, 280 Md. 172, 191, 372 A.2d 582, 593 (1977) ( Hoffman ), and the best interest of the child and need for a stable living situation thus warranted that custody be placed with the Doughertys. Mr. McDermott appealed this decision to the Court of Special Appeals, which affirmed the lower court s decision in an unreported April 5, 2004, opinion. 1 The There has also been litigation between petitioner and Laura A. Dougherty (hereinafter Ms. Dougherty ), the child s natural mother and petitioner s former wife. The conflicts between them are not at issue in the present case. intermediate appellate court subsequently denied Mr. McDermott s Motion for Reconsideration on May 21, 2004, and thereafter he petitioned this Court for a W rit of C ertiorari, which we granted on August 25, 2004. McDermott v. Dougherty, 382 Md. 688, 856 A.2d 724 (2004). 2 Petitioner s appeal centers on the following questions: 1. Is concern that the parent might not obtain employment and remain in the state of Maryland a high enough concern to meet the only to prevent harm or potential harm to the child standard required by the U.S. Supreme Court case of Troxel v. Granville and/or the high standards referenced in the previous cases cited therein, 530 U.S. 57 [,120 S.Ct. 2054, 147 L.Ed.2d 49] (2000)? 2. Do the facts involved in this case constitute exceptional circumstances as described in Shurupoff v. Vockroth, 372 Md. 639[, 814 A.2d 543] (2003)? 3. Does the Order in this case violate the holding of the Maryland case of Schaefer v. Cusack, 124 Md.App. 288[, 722 A.2d 73] (1998), which is that custody must be decided based on the circumstances as they are now and not based on a future plan or conjecture or based on past behavior that has ceased? [Alterations added.] We hold that in disputed custody cases where private third parties are attempting to gain custody of children from their natural parents, the trial court must first find that both natural 2 The present case stems from a subsequent complaint filed in the original case initiated by Mr. McDermott s Complaint for Limited Divorce, Child Custody and Child Support, filed in the Circuit Court for Harford County on September 29, 1995, seeking a divorce from Laura A. Dougherty, and captioned, Charles McDermott v. Laura McDermott. While the maternal and the paternal grandparents were not parties to the parents divorce, both the divorce case and the present case have the same origin and bear the same case number, albeit the case sub judice has been recaptioned. -2- 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 , before a trial court should consider the best interests of the child standard as a means o f deciding the dispute . We further hold that under circumstances in which there is no finding of parental unfitness, the requirements of a parent s employment, such that he is required to be away at sea, or otherwise appropriately absent from the State for a period of time, and for which time he or she m ade ap propria te arran geme nts for th e care o f the ch ild, do not constitute extraordinary or exceptional circumstances to support the awarding of custody to a third party. Accordingly, we shall reverse and direct the lower courts to grant custody of Patrick to petitioner. Although we find the declaration, announced by the plurality opinion in Troxel,3 affirming the fundamental right of parents to make decisions concerning the care, custody, and control of their children, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000), to be instructive, our determination also rests upon the potential for absurd results that might result from a holding that denies custody to a fit and willing parent on the basis that the means by which he or she supports himself or herself and his or her family calls for his or her periodic absence from the State although having arranged suitable and safe 3 Justice O Connor wrote the opinion for the Court in Troxel in which three members of the Court joined. Justices Souter and Thomas wrote concurring opinions. Justices Stevens, Scalia and Kennedy wrote dissenting opinions. -3- alternative care for the child, or based upon the fact that the child , in a particular case, might be better raised by grandparents. With our holding we need not reach the issue of whether the circuit court s order in the case sub judice improperly examined past behavior or future plans in deciding custody. I. Facts 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, who were married on November 26, 1994, in Baltimore County and subsequently took up residence in Abingdon, Maryland. Their relationship having deteriorated, the spouses separated shortly after Patrick s birth. Suffice it to say, between the time this custody disagreement was launched by Mr. McDermott s September 29, 1995 filing, in the Circuit Court for Harford County, of his Complaint for Limited Divorce, Child Custody and Child Support from Ms. Dougherty, and the grandparents February 2002 complaint for third-party custody, i.e., the action to which the instant appeal can be most directly traced, the various parties, whether represented by counsel or proceeding pro se, utilized the full measure of the court s resources in their filings of petitions and motions in regard to support and custody of Patrick. Ms. Dougherty, who had some history of alcohol-related trouble, was convicted of her fourth drinking and driving offense in November 2001, which ultimately would result in a period of incarceration. On January 3, 2002, apparently just prior to her incarceration, Ms. -4- Dougherty, who then had primary residential custody of Patrick, signed a power of attorney giving her parents, the Doughertys, authority to care for Patrick and make all decisions on his behalf. Apparently unaware of Ms. Dougherty s incarceration, Mr. McDermott filed a motion on January 8, 2002, seeking a temporary modification of a November 8, 2001, custody order and stated in his reasons for the petition, the following: The mother has left town, given power of attorney to parents and quit her job. Ms. Dougherty is scheduled for sentencing on 3/15/02 for up to 24 months. I am unemployed currently. He requested that custody be shared by himself and the maternal grandparents. Sometime prior to January 10, 2002, and possibly as early as early December 2001, petitioner signed on to work a six-month seaman s contract at sea. Mr. McDermott executed a notarized letter on January 9, 2002, stating his desire that Patrick remain in the care and custody of the Doughertys at their home in Joppa, Maryland, through the end of the 20012002 academic year. In addition, Mr. McDermott wrote a letter, which appears to be dated January 10, 2002, to Patrick s court-appointed attorney and indicated that Mr. Dougherty, Patrick s grandfather, had responded that he and his wife did not know Ms. Dougherty s whereabouts when queried by Mr. McDermott.4 Apparently, after Mr. McDermott went to sea, the court signed an order to show cause in response to his Temporary Motion/Petition to Modify Custody and scheduled the matter 4 This was not true. At trial Mr. Dougherty testified that his silence as to Ms. Dougherty s being in jail was at the advice of counsel. -5- for a show-cause hearing on January 14, 2002, requiring that the child s mother as well as the Doughertys be present. Mr. McDermott departed on his ship in the first half of January 2002. While it is not manifest that any subterfuge occurred, it seems that petitioner went to sea believing that Ms. Dougherty still had legal custody of the child and not knowing of her incarceration or of the scheduled hearing on his petition. At some point in time, what formerly had been a cooperative relationship between Mr. McDermott and the Doughertys deteriorated. The Doughertys counsel apparently spoke with Mr. McDermott by telephone on January 14, 2002, while the latter was aboard ship, and informed him that Ms. Dougherty had begun a jail sentence on or about January 4, 2002. In affirming this conversation as well as Mr. McDermott s apparent consent that both sets of grandparents share joint legal custody of Patrick, the Doughertys counsel prepared and filed in the Circuit Court for Harford County on February 12, 2002, a Complaint for Third-Party Custody and Motion for an Ex-parte Order, naming the Doughertys, as well as the McDermotts, Patrick s paternal grandparents, as plaintiffs.5 The paternal grandparents later noted, however, that they never signed a document to be plaintiffs in this case, and have had a strained relationship with the Dougherty s [sic] during the period January to July 2002 when Mr. McDermott was at sea. 5 It is not clear from the record whether the Doughertys counsel knew that petitioner was at sea. -6- On February 13, 2002, the court signed an order providing that the grandparents, the Doughertys and the McDermotts, would share temporary joint legal custody and the Doughertys would have residential custody of Patrick. Visitation by the parents one of whom was in jail, and the other at sea at the time was ordered to take place at the mutual convenience and approval of plaintiffs, i.e., the Doughertys.6 Mr. McDermott returned from sea in early July 2002 and the Doughertys, without any modification of the court s custody order, apparently returned Patrick to Mr. McDermott shortly thereafter to mollify the child s sustained entreaties and crying that he wanted to be with his father. Patrick remained with his father for the duration of 2002. On July 25, 2002, petitioner filed a Complaint for Modification of Custody seeking to be granted permanent primary residential and legal custody of Patrick. The Doughertys, labeling Patrick s living with his father at the time as de facto custody, sought to dismiss the complaint stating that they were unsure as to Mr. McDermott s ability to care for the child on a daily basis and believe that it is in the best interest of the child that custody not be changed . . . . Petitioner s parents, who at the time shared legal custody with the Doughertys, agreed with petitioner s request for a change of legal custody to him. At a pre-trial conference in November 2002, the matter was set down for trial in May 2003 but trial was later delayed until July 2003. The circuit court advised Mr. McDermott 6 While at sea, Mr. McDermott did manage to see his son when he flew Patrick and the child s paternal grandparents to Texas in late April 2002 to spend a week aboard ship to celebrate Patrick s birthday. -7- to hire an attorney to represent him in his petition for custody, and accordingly, Mr. McDermott hired his present attorney in December 2002 and went to sea in early 2003 in order to make the money to pay for [a custody] attorney (alteration added). Apparently, Patrick lived with the Doughertys during his father s time at sea in the early months of 2003. Mr. McDermott returned to Maryland in March 2003 during his two-week break between ship assignments. Ms. Dougherty, petitioner s former wife, filed a Motion to Modify Custody on May 23, 2003, seeking to remove Patrick from her parents custody,7 citing that they withheld visitation, were verbally and psychologically abusive to the child and [b]oth of the child s natural parents are able and willing to take care of Patrick. On June 18, 2003, Mr. McDermott responded in opposition to his former wife s motion. He filed an answer, an amended complaint for custody and also apparently sought back child support from Ms. Dougherty as well as trial costs and an estimated $18,000 in legal fees that he expected to incur at the scheduled trial. The circuit court did not immediately rule on these and other outstanding motions. Trial in the matter of Mr. McDermott s request for permanent custody took place on July 1 and 2, 2003. The parties presented both lay and expert testimony regarding Ms. Dougherty s and Mr. McDermott s respective fitness as parents. Mr. McDermott indicated 7 Her parents filed an opposition to the motion and sought to retain custody of Patrick. -8- that he went to sea in January 2003 in order to bolster his finances in his effort to obtain sole custody of Patrick and he intended to establish permanent residence in Maryland if granted full custody. He noted that he and Patrick were then residing with a family in Port Deposit, an atypical, though presently workable and harmonious, living situation. The maternal grandparents stated that they had decided to contest custody because they believed that Patrick needed stability in his life and over the past four years they had been the only consistently stable presence for the child. Upon the trial s conclusion, the circuit court held the matter sub curia, and stated that the current order, i.e., that of February 13, 2002, remained in effect. The parties continued to jostle for custody while the ruling remained pending in the circuit court. The circuit court issued a memorandum opinion and order on September 8, 2003, granting sole legal and physical custody of Patrick to the Doughertys. The court expressed its doubt at the veracity of Mr. McDermott s stated intentions to remain in Maryland and stated in its finding: Based on the analysis of the above [Ross v. Hoffman, 280 Md. at 191, 372 A.2d at 59 3] factors, the court conc ludes that M s. Dough erty is unfit to have custody at this time, and that exceptional circumstances exist that overcome the presump tion that Patrick s best interest is served by custody in Mr. McD ermott. In particular, because the court is unable to rely upon M r. McDerm ott s representations that he intends to obtain employment and remain in Maryland, it would app ear, to Patrick s detriment, that stability in his living arrang emen ts wou ld be jeo pardize d. [Alteration added.] On September 16, 2003, Mr. McDermott, through his counsel, filed simultaneously a Motion to Alter or Amend Judgment contending that the circuit court s opinion was -9- contrary to existing federal and state case law and a notice of appeal to the Court of Special Appeals. The circuit court denied petitioner s motion. The Court of Special Appeals affirmed the trial court s decision on April 5, 2004, with an unreported decision that incorporated the circuit court s detailed recitation of the considerable procedural history of this case. Petitioner sought reconsideration from the intermediate appellate court, but was denied on May 21, 2004. II. Discussion A. Fundamental Constitutional Parental Right to Raise One s Children One of the earlier United States Supreme Court cases8 in respect to parental rights, and one that has been described in subsequent cases as seminal, is the case of Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), albeit it does not concern the rights of third parties. It is important primarily for its language, which stressed the importance of family in our society. Nebraska, apparently as a reaction to World War I war, enacted a statute that forbade the teaching of the German language to children who had not yet reached the eighth grade. In the process of holding the statute unconstitutional, the Court said: The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment: 8 Some of the cases do not concern third-party custody but the power of states to interfere with parents raising of their children. We include them here to emphasize the importance of parents rights. -10- No state shall deprive any person of life, liberty or property without due process of law. While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. ... For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be. In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any Legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution. Meyer, 262 U.S. at 399-402, 43 S.Ct. at 626-28 (citations omitted) (emphasis added). One of the early cases citing to Meyer, supra, was Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 530, 45 S.Ct. 571, 572-73, 69 L.Ed 468 (1925), involving the Oregon Compulsory Education Act. The Court opined: -11- After setting out the above facts, the Society s bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents choice of a school . . . and is accordingly repugnant to the Constitution and void. ... Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. . . . The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. [Citation omitted.] In a case not exactly on point in a dispute between natural parents that involved competing state jurisdictions, i.e., whether one state had the power to modify the custody determination of another state, the Court in New York v. Halvey, 330 U.S. 610, 613, 67 S.Ct. 903, 905, 91 L.Ed 1133 (1947), opined: Under Florida law the welfare of the child is the chief consideration in [cases between natural parents] shaping the custody decree or in subsequently modifying or changing it. But the inherent rights of parents to enjoy the society and association of their offspring, with reasonable opportunity to impress upon them a father s or a mother s love and affection in their upbringing, must be regarded as being of an equally important, if not controlling, consideration in adjusting the right of custody as between parents in ordinary cases. [Citation omitted.] In the 1970 s the United States Supreme Court wrestled with a series of cases that, although not always directly concerning custody issues, continued to recognize the importance of the rights of parents. In Stanley v. Illinois, 405 U.S. 645, 651-58, 92 S.Ct. 1208, 1210-16, 31 L.Ed.2d 551 (1972), the Court was considering an Illinois statute that mandated that, upon the death of -12- a mother, the unmarried [to that mother] natural father had no right to a hearing on custody. The statute mandated that in such cases the children of the deceased mother automatically became dependents of the state. The Court said: Stanley presses his equal protection claim here. The State continues to respond that unwed fathers are presumed unfit to raise their children and that it is unnecessary to hold individualized hearings to determine whether particular fathers are in fact unfit parents before they are separated from their children. We granted certiorari, to determine whether this method of procedure by presumption could be allowed to stand in light of the fact that Illinois allows married fathers whether divorced, widowed, or separated and mothers even if unwed the benefit of the presumption that they are fit to raise their children. ... The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements. The Court has frequently emphasized the importance of family. The rights to conceive and raise one s children have been deemed essential, Meyer v. Nebraska, basic civil rights of man, Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), and [r]ights far more precious . . . than property rights, May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953). It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring). ... -13- Despite Bell and Carrington,[9] it may be argued that unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconvenience of inquiry in any case, including Stanley s. The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones. ... We have concluded that all Illinois parents are constitutionally entitled to a hearing on their fitness before their children are removed from their custody. [Footnote added.] [Footnoted omitted.] [Some citations omitted.] Wisconsin v. Yoder, 406 U.S. 205, 214-32, 92 S.Ct. 1526, 1532-42, 32 L.Ed.2d 15 (1972) while primarily concerning religious issues (Amish parents challenging a state requirement that their children go to school until they were sixteen), was also based in part on the fundamental rights of parents to raise their children. The Court stated: Thus, a State s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests and the traditional interest of parents with respect to the religious upbringing of their children so long as they, in the words of Pierce [v. Society of the Sisters], prepare [them] for additional obligations. ... Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the State in an appropriate state court proceeding in which the power of the State is asserted on the theory that 9 Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) (statutory scheme depriving driving privileges without a finding of unfitness to drive); and Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (restriction of electorate to bona fide residents). -14- Amish parents are preventing their minor children from attending high school despite their expressed desires to the contrary. Recognition of the claim of the State in such a proceeding would, of course, call into question traditional concepts of parental control over the religious upbringing and education of their minor children recognized in this Court s past decisions. . . . The State s argument proceeds without reliance on any actual conflict between the wishes of parents and children. It appears to rest on the potential that exemption of Amish parents from the requirements of the compulsoryeducation law might allow some parents to act contrary to the best interests of their children by foreclosing their opportunity to make an intelligent choice between the Amish way of life and that of the outside world. . . . Indeed it seems clear that if the State is empowered, as parens patriae, to save a child from himself or his Amish parents by requiring an additional two years of compulsory formal high school education, the State will in large measure influence, if not determine, the religious future of the child. . . . [T]his case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. [The Court then cited to Pierce and Meyer]. [Emphasis added.] [Some alteration added.] In the exclusionary zoning case of Moore v. City of East Cleveland, 431 U.S. 494, 499-508, 97 S.Ct. 1932, 1935-40, 52 L.Ed.2d 531 (1977), a case involving an attempt to restrict residency requirements to immediate family as opposed to extended family, the Court noted: When a city undertakes such intrusive regulation of the family, neither Belle Terre nor Euclid [seminal zoning cases] governs; the usual judicial deference to the legislature is inappropriate. This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. A host of cases, tracing their lineage to Meyer . . . have consistently acknowledged a private realm of family life which the state cannot enter. Of course, the family is not beyond regulation. But when the government intrudes on choices concerning family living arrangements, this -15- Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. ... Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural. ... Justice Brennan in a concurring opinion in Moore, joined by Justice Marshall, further noted: In today s America, the nuclear family is the pattern so often found in much of white suburbia. The Constitution cannot be interpreted, however, to tolerate the imposition by government upon the rest of us of white suburbia s preference in patterns of family living. The extended family that provided generations of early Americans with social services and economic and emotional support in times of hardship, and was the beachhead for successive waves of immigrants who populated our cities, remains not merely still a pervasive living pattern, but under the goad of brutal economic necessity, a prominent pattern virtually a means of survival for large numbers of the poor and deprived minorities of our society. For them compelled pooling of scant resources requires compelled sharing of a household. [Citations omitted.] [Footnotes omitted.] Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 829-40, 97 S.Ct. 2094, 2101-07, 53 L.Ed.2d 14 (1977), 10 while decided on procedural grounds, did involve third parties but in respect to the position of the state. There was an unusual twist. Foster parents formed several organizations to challenge the procedures New York used to reunite foster children with their natural parents and in the process attempted 10 It is possible to make an inference from the tone of the opinion that the organizations of foster parents were additionally, if not primarily, concerned with the effect of the statute on the economic circumstances of foster parents. -16- to assume the stature of psychological parents. In the opinion reference is also made to the interests of natural parents. In discussing the various issues the Court opined: The provisions of the scheme [the state process for reunification] specifically at issue . . . come into play when the agency . . . determines to remove the foster child from the foster home, either because it has determined that it would be in the child s best interests to transfer him to some other foster home, or to return the child to his natural parents in accordance with the statute or placement agreement. ... From the standpoint of natural parents, such as the appellant intervenors here, foster care has been condemned as a class-based intrusion into the family life of the poor. It is certainly true that the poor resort to foster care more often than other citizens. . . . Minority families are also more likely to turn to foster care . . . . This disproportionate resort to foster care by the poor and victims of discrimination doubtless reflects in part the greater likelihood of disruption of poverty-stricken families. . . . The poor have little choice but to submit to state-supervised child care when family crises strike. ... The intervening natural parents of children in foster care . . . also oppose the foster parents, arguing that recognition of the procedural right claimed [the right to a hearing for the foster parents if they were deemed to be psychological parents and the equivalent of natural parents] would undercut both . . . and their constitutionally protected right of family privacy, by forcing them to submit to a hearing and defend their rights to their children before the children could be returned to them. [Citations omitted.] [Footnote omitted.] After discussing that the relationship of foster parents were based on the contracts between them and the state, the Court opined further: A second consideration related to this is that ordinarily procedural protection may be afforded to a liberty interest of one person without derogating from the substantive liberty of another. Here, however, such a tension is virtually unavoidable. . . . It is quite another to say that one may acquire such an interest in the face of another s constitutionally recognized liberty interest that derives from blood relationship, state-law sanction, and basic human right an interest [the interest of the natural parent] the foster -17- parent has recognized by contract from the outset. Whatever liberty interest might otherwise exist in the foster family as an institution, that interest must be substantially attenuated where the proposed removal from the foster family is to return the child to his natural parents. Smith, 431 U.S. at 846-47, 97 S.Ct. at 2110-11 (footnote omitted). Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), was a factually unusual case, and is one of, if not the only, case in which the Supreme Court upheld the sole use of the best interests standard in regard to the third-party placement of children, although at the same time it opined that if a parent were fit it would generally be constitutionally prohibited to take custody from that parent on the basis of the best interest of the child. First, the father had never wed the mother and the child had been raised by her mother and stepfather; second, it was an adoption case; third, it was the stepfather who was seeking to adopt the child and the stepfather had been married to the child s mother for the nine years prior to the petition for adoption; and fourth, the natural father only sought the power to veto the adoption unless he was first declared to be unfit which had not happened and he did not want custody for himself. It appears under those circumstances that the Court almost considered that the natural father had waived or forfeited his constitutional rights as a natural father, although the Court did not specifically so state. The father also claimed that the law in Georgia that permitted a natural father who had been wed to the mother to veto adoptions, but did not afford the same veto right to a natural father who had not been married to the mother, was unconstitutional in that it denied him the equal protection of the law. -18- Because the trial court had used best interests language that was then used by the state appellate court opinion, that language also ended up in the Supreme Court s decision. The Court opined: The trial court denied appellant s petition, and thereby precluded him from gaining veto authority, on the ground that legitimation was not in the best interest of the child ; appellant contends that he was entitled to recognition and preservation of his parental rights absent a showing of his unfitness. Thus, the underlying issue is whether, in the circumstances of this case and in light of the authority granted by Georgia law to married fathers, appellant s interests were adequately protected by a best interest of the child standard. ... We have little doubt that the Due Process Clause would be offended [i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children s best interest. But this is not a case in which the unwed father at any time had, or sought, actual or legal custody of his child. Nor is this a case in which the proposed adoption would place the child with a new set of parents with whom the child had never before lived. Rather, the result of the adoption in this case is to give full recognition to a family unit already in existence, a result desired by all concerned, except appellant. Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the best interests of the child. Quilloin, 434 U.S. at 254-55, 98 S.Ct. at 554-55 (citation omitted) (emphasis added). Interestingly, a year later the Court addressed a similar issue as to equal protection significantly differently, also in an adoption case, albeit based upon gender discrimination claims. In the case of Caban v. Mohammed, 441 U.S. 380, 381-94, 99 S.Ct. 1760, 1763-69, 60 L.Ed. 2d 297 (1979), the Court stated: The appellant, Abdiel Caban, challenges the constitutionality of [the -19- relevant section of the adoption statute of New York], under which two of his natural children were adopted by their natural mother and stepfather without his consent. We find the statute to be unconstitutional, as the distinction it invariably makes between the rights of unmarried mothers and unmarried fathers has not been shown to be substantially related to an important state interest. ... Absent one of these circumstances, an unwed mother has the authority under New York law to block the adoption of her child simply by withholding consent. The unwed father has no similar control over the fate of his child, even when his parental relationship is substantial as in this case. He [under the statute] may prevent the termination of his parental rights only by showing that the best interests of the child would not permit the child s adoption by the petitioning couple. Despite the plain wording of the statute, appellees [the natural mother and stepfather] argue that unwed fathers are not treated differently under [the statute] from other parents. According to appellees, the consent requirement of [the statute] is merely a formal requirement, lacking in substance, as New York courts find consent to be unnecessary whenever the best interests of the child support the adoption. Because the best interests of the child always determine whether an adoption petition is granted in New York, appellees contend that all parents, including unwed fathers, are subject to the same standard. Appellees interpretation . . . finds no support in New York case law. On the contrary, the New York Court of Appeals has stated unequivocally that the question whether consent is required is entirely separate from that of the best interests of the child. . . . Accordingly, it is clear that [the statute] treats unmarried parents differently according to their sex. The question before us, therefore, is whether the distinction in [the statute] between unmarried mothers and unmarried fathers bears a substantial relation to some important state interest. Appellees assert that the distinction is justified by a fundamental difference between maternal and paternal relations that a natural mother, absent special circumstances, bears a closer relationship with her child . . . than a father does. ... In sum, we believe that [the statute] is another example of overbroad generalizations in gender-based classifications. The effect of New York s classification is to discriminate against unwed fathers even when their identity is known and they have manifested a significant paternal interest in the child. -20- Id. at 381-94, 99 S.Ct. at 1763-69 (alterations added) (citations omitted) (emphasis added) (footnotes omitted). The Court then stated in a footnote: Because we have ruled that the New York statute is unconstitutional under the Equal Protection Clause, we . . . express no view as to whether a State is constitutionally barred from ordering adoption in the absence of a determination that the parent whose rights are being terminated is unfit. Id. at 394, 99 S.Ct. at 1769. Even in Lassiter v. Department of Social Services of Durham County, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159-60, 68 L.Ed.2d 640 (1981), a case in which the Supreme Court upheld the denial of legal representation for indigent parents in state generated termination cases, the Court nevertheless, recognized the fundamental and constitutional rights of parents to raise their children: This Court s decisions have by now made plain beyond the need for multiple citation that a parent s desire for and right to the companionship, care, custody and management of his or her children is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection. Here the State has sought not simply to infringe upon that interest but to end it. If the State prevails, it will have worked a unique kind of deprivation. A parent s interest in the accuracy and injustice of the decision to terminate his or her parental status is, therefore, a commanding one. [Citations omitted.] In a case involving the correct evidentiary standards to apply in cases where the State attempts to terminate parental rights, the Court held that a preponderance of the evidence standard was not sufficient and that at least clear and convincing evidence was required. In Santosky v. Kramer, 455 U.S. 745, 747-67, 102 S.Ct. 1388, 1391-402, 71 L.Ed.2d 599 -21- (1982), the Court discussed the importance of the fundamental rights of parents: Today we hold that the Due Process Clause of the Fourteenth Amendment demands more than this [the preponderance standard]. Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence. The Court went on to give its reasons, reasons based upon the fundamental rights of parents: The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protection than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. ... At the factfinding, the State cannot presume that a child and his parents are adversaries. After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional [this emphasis in original], stage that the interests of the child and the natural parents do diverge. . . . But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. Thus, at the factfinding, the interests of the child and his natural parents coincide to favor use of error-reducing procedures. ... The [state] court s theory assumes that termination of the natural parents rights invariably will benefit the child. Yet we have noted above that the parents and the child share an interest in avoiding erroneous termination. Even accepting the court s assumption, we cannot agree with its conclusion that a preponderance standard fairly distributes the risk of error between parent and child. Use of that standard reflects the judgment that society is nearly neutral between erroneous termination of parental rights and erroneous failure to terminate those rights. For the child, the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo. For the -22- natural parents, however, the consequence of an erroneous termination is the unnecessary destruction of their natural family. ... [T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents. [Citations omitted.] [Footnotes omitted.] [Some emphasis added.] Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), was another unique case. The unwed natural father had not received notice of an adoption case in respect to his child and accordingly did not appear and thus never proffered any testimony as to his contact with the children. Based only on the appellee s evidence, the Court held that because the natural father had never established a significant relationship with the child, the failure of the lower court to give him notice of the adoption proceedings, even though the state had knowledge of his whereabouts, did not violate his constitutional rights, since the natural father could have guaranteed receipt of notice by sending a postcard to some registry. Justice White, dissenting, with Justices Marshall and Blackmun joining, pointed out that the majority was making assumptions as to the nature of the father s relationship with the child, without the father ever having had a chance to present evidence in respect to that relationship. Even in holding against the father, the majority nonetheless recognized the importance of parental rights, quoting from its cases, supra, before, in essence, nullifying his status as the natural father because it found that he had not established a sufficient relationship with the child. Reno v. Flores, 507 U.S. 292, 294-304, 113 S.Ct. 1439, 1444, 123 L.Ed.2d 1 (1993), -23- involved the increasingly serious problems of what to do with minor illegal aliens who have no natural parents or legal guardians in this country. Detained minor aliens who were subject to deportation by INS, by reason of certain statutes, were treated differently than detained minors held for exclusion. Apparently, the deportable minor aliens were not swiftly turned over to others, but rather kept in detention for extended periods of time.11 The Court described the issue: Over the past decade, the Immigration and Naturalization Service (INS or Service) has arrested increasing numbers of alien juveniles who are not accompanied by their parents or other related adults. Respondents, a class of alien juveniles so arrested and held . . . contend that the Constitution and immigration laws require them to be released into the custody of responsible adults. Id. at 294, 113 S.Ct. at 1443. In resolving the issue, the Court compared the situation to the matters of custody in respect to natural parents of citizens. Perhaps, as dicta, given the nature of the particular case, the Court stated: Although respondents [the alien minors] generally argue for the categorical right of private placement discussed above, at some points they assert a somewhat more limited constitutional right: the right to an individualized hearing on whether private placement would be in the child s best interests followed by private placement if the answer is in the affirmative. It seems to us, however, that if institutional custody (despite the availability of responsible private custodians) is not unconstitutional in itself, it does not become so simply because it is shown to be less desirable than some other arrangement for the particular child. The best interests of the child, a venerable phrase familiar from divorce proceedings, is a proper and 11 There apparently are upwards of nine thousand minors held in this category each year. -24- feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion much less the sole constitutional criterion for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others. Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child s welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately. Similarly, the best interests of the child is not the legal standard that governs parents or guardians exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves. Id. at 303-04, 113 S.Ct. at 1448 (citations omitted). In M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 564, 136 L.Ed.2d 473 (1996), the Court reversed a Mississippi case which had upheld a state statute that required certain fees to be paid before an appeal could be taken. The appellant, an indigent mother, had her appeal of the termination of her parental rights dismissed because she lacked the money to pay the fees. The issue was whether the fundamental rights of parents were sufficiently strong, making the statute, or its application to an indigent parent, unconstitutional. The Court found for the mother. Justice Ginsburg writing for the Court stated that: Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as of basic importance in our society, rights sheltered by the Fourteenth Amendment against the State s unwarranted usurpation, disregard, or disrespect. M.L.B s case, involving the State s authority to sever permanently a parent-child bond demands the close consideration the Court has long required when a family association so undeniably important is at stake. ... Although both Lassiter and Santosky yielded divided opinions, the -25- Court was unanimously of the view that the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment. It was also the Court s unanimous view that [f]ew consequences of judicial action are so grave as the severance of natural family ties. [Alteration original.] [Citations omitted.] [Footnote omitted.] In the recent case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the Court reaffirmed its principles, in a challenge to a third-party visitation statute in the state of Washington. Accordingly, we shall also examine it. In Troxel, a mother desired to limit her children s visitation with the parents of their deceased father, a man to whom she had never been married. The paternal grandparents invoked a Washington statute that permitted any person to petition the superior court for visitation rights of any child at any time, and gave discretion to the court to grant visitation when in the best interest of the children, without regard to any change in circumstances. Troxel, 530 U.S. at 60, 120 S.Ct. at 2057. After the trial court ordered visitation with the grandparents in excess of the mother s desires, she appealed to Washington s intermediate appellate court, which reversed the lower court, stating that the grandparents lacked standing unless a custody action was pending. Id. at 62, 120 S.Ct. at 2058. The Washington Supreme Court affirmed, holding the non-parental visitation statute invalid, but based its decision on substantive due process grounds. Id. at 63, 120 S.Ct. at 2058. The grandparents appealed to the United States Supreme Court, which affirmed, holding that the statute on which the superior court had based its order awarding visitation to the paternal grandparents unconstitutionally interfered with the mother s fundamental right to make decisions -26- concerning the care, custody, and control of her children. Troxel, 530 U.S. at 72, 120 S.Ct at 2063. In criticizing the trial court s slender findings in support of its visitation order, the United States Supreme Court faulted the statute s failure to accord sufficient deference to the parent s interests, and, as the Maryland Court of Special Appeals in a decision issued less than a month after Troxel, further critiqued: that the [trial court] decision placed the burden on the parent to prove that grandparent visitation was not in the child s best interest; and that there was no requirement that the parent be shown to be unfit. The Court expressly declined, however, to reach the question of whether parental unfitness was always a prerequisite in order to justify intervention in decisions concerning custody and visitation. Gestl v. Frederick, 133 Md.App. 216, 242, 754 A.2d 1087, 1101 (2000) (alteration added). In addition, Troxel observed that the trial court did not order non-parental visitation based upon any special factors [i.e., exceptional circumstances] that might justify the State s interference with [the mother s] fundamental right to make decisions concerning the rearing of her [children] Troxel, 530 U.S. at 68, 120 S.Ct. at 2061 (alterations added); see also Gestl, 133 Md.App. at 243, 754 A.2d at 1101. As we have said, Troxel involved a Washington statute. We note, in respect to custody, that no specific statute has been invoked by the parties in the case sub judice.12 12 There is a grandparents visitation statute in Maryland, but there is no statute specifically addressing a petition by grandparents for custody. Md. Code (1984, 1999 Repl. Vol., 2004 Supp.), § 9-102 of the Family Law Article, entitled Petition by grandparents for visitation, provides: An equity cou rt ma y: (continued...) -27- There is, however, significant insight to be gleaned from Troxel s discussion of the fundamental rights of parents to rear their children. Moreover, Judge Wilner, for the Court, recently observed in Frase v. Barnhart, 379 Md. 100, 840 A.2d 114 (2003), in respect to the Troxel plurality opinion, that there is nothing in any of the Opinions announcing or concurring in the judgment to suggest that the Constitutional proscription against State interference with a fit parent s right to make basic decisions for his/her child is limited to issues of visitation, and, indeed, the cases relied on by the various Justices involved other areas of interference as well. Id. at 124, 840 A.2d at 128 (citations omitted). We discussed several of the cases discussed in Troxel in Boswell v. Boswell, 352 Md. 204, 721 A.2d 662 (1998), stating: The United States Supreme Court has upheld the rights of parents regarding the care, custody, and management of their children in several contexts, including child rearing, education, and religion. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (overturning a mandatory schooling law in the face of Amish claims of parental authority and religious liberty); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (discussing the right of parents to raise their children); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645, 652 (1944) (observing that the custody, care, and nurture of the child reside first in the parents ); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942) (stating the right to rear a child is encompassed within a parent s basic civil rights ); Pierce v. Society of Sisters 12 (...continued) (1) consider a pe tition for r easo nable vis itatio n of a gra ndchild by a grandparent; and (2) if the court find it to be in the best interests of the child, grant visitation rights to the gran dparen t. This statute is not at issue in this case. -28- of Holy Names, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (sustaining parents authority to provide religious schooling against State requirements of public school attendance); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (upholding parental authority to have children taught in languages other than English). Boswell, 352 Md. 204, 217-18, 721 A.2d 662, 668. Petitioner reads Troxel as requiring a threshold showing of harm or potential harm to the child where third parties seek custody. Although the Washington Supreme Court did address the harm or potential harm issue, the plurality opinion in Troxel, as we have already noted, did not address the issue in respect to the granting of visitation the issue in Troxel: [W]e do not consider the primary constitutional question passed on by the Washington Supreme Court whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. Troxel, 530 U.S. at 73, 120 S.Ct at 2064 (alteration added). Instead, the Troxel decision affirmed the Washington Supreme Court s invalidation of a state statute because the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a better decision could be made. Troxel, 530 U.S. at 72-73, 120 S.Ct. at 2064. Accordingly, Troxel is further instructive as to this case insofar as it recognizes the parent s fundamental right to direct his or her children s care, custody and control, see Troxel, 530 U.S. at 65, 120 S.Ct 2060, and it impliedly rejects the substitution of a judge s opinion that -29- a particular child would be better raised in a situation a trial judge prefers. 13 Our courts have left little doubt of the importance placed on the parent-child relationship. As this Court recently stated in Shurupoff v. Vockroth: The Supreme Court has long recognized the right of a parent to raise his or her children as a fundamental one protected by the due process clause of the Fourteenth Amendment. See cases beginning with Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), extending, among other intermediate cases, through Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), and Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), to, most recently, Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Shurupoff, 372 Md. at 650, 814 A.2d at 550. The circumstances of the case sub judice illuminate a complexity in the best interests of the child standard that governs, inter alia, custody disputes between parents. In a situation in which 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. See Md. Code (1984, 1999 Repl. Vol., 2004 Supp.), § 5-203 (d)(2) of the Family 13 Every child might be better in a different situation in the opinion of one judge or another. The best interest standard is not a rule to be used to take children away from fit parents and give them to third parties because a judge believes the child will be better off with richer, better educated, more stable, third parties. If that were so, no parent would be safe from having his or her children given to others to raise. The phrase best interests of the child is not synonymous with with whomever the child would be better off. Children are born into different circumstances. They are dealt different hands. The vast majority of them cope. Some from humble origins and upbringing even end up on state supreme courts. It is simply the way life is. -30- Law Article.14 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 interests tips the scale in favor of an award of custody to one parent or the other. Where the dispute is between a fit parent and a private third party, however, both 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 constitutiona l statute, the non-governmental third party has no rights, constitutional or otherwise, to raise someone else s child. B. Best Interests of the Child in the Absence of Parental Unfitness and Extraordinary or Exceptional Circumstances The arguments and outcome of the instant case in no way alter the best interests of the child standard that governs courts assessments of disputes between fit parents involving visitation or custody. We have frequently and repeatedly emphasized that in situations where it applies, it is the central consideration. See Wilhelm v. Wilhelm, 214 Md. 14 Md. Code (1984, 1999 Repl. Vol., 2004 Supp.), § 5-203 (d)(2) of the Family Law Article states, Neither parent is presumed to have any right to custody that is superior to the right of the other parent. -31- 80, 84, 133 A.2d 423, 425 (1957) (stating succinctly and conclusively in regard to the best interests standard, that [i]t seems unnecessary to cite additional authority in support of this firmly established rule ). So critical is the best interests standard that it has garnered superlative language in the many cases in which the concept appears: This Court labeled it of transcendent importance in Dietrich v. Anderson, 185 Md. 103, 116, 43 A.2d 186, 191 (1945), as the ultimate test in Fanning v. Warfield, 252 Md. 18, 24, 248 A.2d 890, 894 (1969), and as the controlling factor in In re Adoption/Guardianship No. 10941, 335 Md. 99, 113, 642 A.2d 201, 208 (1994). See also Hoffman, 280 Md. at 175, n.1, 372 A.2d at 585 n.1 (providing a more complete survey of the various descriptions of the best interest standard). Although the child s well-being remains the f ocus of a court s analysis in disputes between fit parents, [t]he best interests standard does not ignore the interests of the parents and their importance to the child. We recognize that in almost all cases, it is in the best interests of the child to have reasonable maximum opportunity to develop a close and loving relationship with each parent. Boswell v. Boswell, 352 Md. 204, 220, 721 A.2d 662, 669 (1998) (alteration added). C. Standards for Custody Determination When considering the application of the best interests o f the child s tandard it is essential to frame the different situations in which it is attempted to be applied. First, and certainly the most important application of the standard, is in disputes between fit natural parents, each of w hom has equal con stitutional rights to parent. In tho se cases the dispute -32- can be resolved best if not solely, by an application of the best interests of the child standard. This situation most often arises in marriage dissolution issues between natural parents and it is necessary to resolve the matters of custody and visitation between two constitutiona lly equally qualified parents. Although the Court is unaware of any compilation of numbers, it can reasonably be supposed that the vast majority of cases throughout the country in which the best interest of the child standard is applied, or sought to be applied, are of this nature. When these cases are subtracted from the total universe of custody and visitation cases, there remains a much smaller number of cases. The second m ost freque nt situation in which that standard has been applied is, we believe, in the variou s types of state proceedin gs in which the states are injecting themselves into the parentin g situation in the exercise of their gen erally recognize d powe r to protect the child. In various jurisdictions, and sometimes in different cases within the same jurisdiction, the standard applied, after recognizing the power of the state to intervene in the case by reason of unfitne ss or circum stance, is an a voidance of harm to the child or a best interest standard, and often both stand ards. Most often the b est interest standard become s applicable after a finding that it is necessary to protect the child who is being exposed to harm by the parental unit. When these numerous cases are subtracted from the total number of custody and vis itation d ispute c ases, the remain der of th e cases fit into an even sm aller cate gory. This category is gen erically referred to as third-party custody disputes, i.e., persons other than natura l parents or the State attempting, d irectly or indirectly, to gain or maintain -33- custody or visitation in respect to the children of n atural parents. In some states , third-party issues arise in actions involving those states use of guardi anship , i.e., custody actions appear to be titled sometimes as guardianship actions although they are in essence custody actions. In some states the actions are titled as habeas corpus actions, in some states the third party seeks custody throu gh interven tion in a dom estic action be tween the natural parents (as in the present case), and in some states the third party initiates a separate action titled in some other m anner. Even within the third-party subset of custody actions there are further differences. Some states have conceptualized the idea of physiological parents, third parties who have, in effect, become parents and thus, the case is considered according to the standards that apply between natural pa rents. This further reduces the n umber of pure third-party cases. The pure third-party cases are further narrowed in some jurisdictions by failure of adoption cases, in which, upon the failure of adoption, a best interest standard may be applied. In still other pure third-party cases, in respect to the standard to be used, all parties seeking custody of children are designated as third parties. In that situation there are no constitutional rights involved (although in some cases constitutional claims are made using terms such as p sychological p arent and the like) and the best interest standard is generally applied. There are also those cases which we would o therwise ca ll pure third-p arty cases, except that the natural parents did not raise the issue of their fundamental constitutional right to parent in that particular case and the courts accordingly did not address -34- it. These cases further reduce the body of cases that we shall discuss. Indeed, other types of situations may further reduce the number of pure third-party cases. In any event, in comparis on with the total number of cases in which attempts are made to utilize the best interest standard, or it is used, the n umber o f pure third-p arty cases, such as the present case, is relatively small. It is on these remaining cases throughout the country, that we primarily focus our attention.15 We have been able to separate th e cases (an d the states) into three catego ries. First, those that utilize, as the ultimate determining factor, the best interest standard (which appears to be the minority view). Second, those cases (and the states) that appear to use some type of hybrid standard or have utilized language in the opinions that support both the best interest standard and the unfit parent and/or extraordinary circumstances standard. We shall refer to these cases as the hybrid view. The third category of cases, which appear to be the majority of the cases and the state s, hold that, in this limited class o f pure third-p arty custody cases (the category of the present case), that the best interest standard is inapprop riate unless the finder of fact first finds that the natural parents are unfit, the natural parents by their conduct have waived or lost their constitutional protections, or there is a finding of extraordinary, exceptional, or com pelling circumstances that requ ire the court to remove the child from the natural parents in order to protect the child fro m harm. It is o nly 15 Some of these issues are presented in the guise of various state actions in which third-party custody is indirectly implicated. These cases will be apparent from context. -35- if the parents are unfit, or if there is som e exception al circumsta nce expo sing the child to harm, that the child may be removed from the custody of the parents. If a preliminary finding of parental unfitness or extra ordinary circum stances is m ade, the cou rt is then face d with what to do with the child. In only that context, then, after such preliminary findings are proved, may the custody of the child be based on a best interest standard. This last standard appears to be the ma jority view in the United S tates and, un til very recently, likely was the Maryland position, albeit the langu age of our cases over the years has not been altogether clear. To the extent we may not have e xplicitly previous ly adopted the majority view in third-party custody cases in this state, we do so now. We shall discuss, for the most part, only the pure third-party cases since the early 1970 s the era when the Supreme Court, in various types of cases, re-emphasized the constitutional rights of parents. 1. Minority View We start with what we consider to be the minority view: the states that apply the best interest standard , and generall y only, o r ultim ately, this standard, in spite of some dicta in the cases to the contrary.16 These states appear to be Colorado, Illinois, 17 Pennsylvania and 16 Our discussion of the state cases in the various categories is not done in alphabetical order but in a more or less random order. 17 The Supreme Court of New Jersey has recently described Illinois as ascribing to the majority view. See Watkins v. Nelson, 163 N.J. 235, 748 A.2d 558 (2000). -36- West Virginia (although there are contrary cases in West Virginia).18 In 1981 the Supreme Court of Illinois, in In re Custody of Townsend, 86 Ill.2d 502, 427 N.E.2d 1231 (1981), overturned the granting of custod y to a third party (the sister of the child) over the protest of the child s natural father who had not been married to the natural mother. 19 Although the court considered the father s presumptive rights, it included language which, it can be argued, place Illinois in the minority column: In child-custody disputes it is an accepted presumption that the right or interest of a natural parent in the care, custody and control of a child is superior to the claim of a third person. The presumption is not absolute and serves only as one of several factors used by courts in resolving the ultimately controlling question of where the best interests of the child lie. A court need not find that the natural parent is unfit or has forfeited his custodial rights before awarding custody to ano ther person if the best intere sts of the ch ild will be serv ed. 20 Id. at 508, 427 N.E .2d at 1234 (citations omitted) (em phasis added). See also In re the Es tate of K.E.S. and J.M.S., Minors v. Schneider and Sliney, 347 Ill.App.3d 452, 461, 807 N.E.2d 681, 688 (2004), decided on somewhat different grounds, but stating nonetheless, that [t]he 18 It is arguable that this Court in Shurupoff v. Vockroth, 372 Md. 639, 814 A.2d 543 (2003), in attempting to clarify some of the language in Hoffman, 280 Md. 172, 372 A.2d 582 (1977), may have moved Maryland from the majority view to the minority status. We shall address this later in the opinion. 19 The child s natural mother had murdered the natural father s wife and had been sentenced to thirty years in prison. 20 Even then the Illinois Supreme Court in later language in the opinion appeared to back away from its pronouncement, when it stated: These holdings [various United States Supreme Court cases], however, make it clear that the interest of a parent . . . is fundamental and not to be ignored or facilely swept away in the face of a competing petition for custody filed by a third party. In re Townsend, 86 Ill.2d at 514, 427 N.E.2d at 1237. -37- most important consideration in child custody disputes is the best interest of the child (alteration added). T he interme diate appellate court relied primarily on its own cases, but did cite at one point to the Illinois Supreme Co urt s Townsend decision. But see Kirchner v. Doe, 164 Ill.2d 468, 649 N.E.2d 324 (1995), a failure of adoption case which contains some contrary language and In re Custody of Peterson, 112 Ill.2 d 48, 491 N .E.2d 1150 (1996 ), which sets the standard in Illinois that applies where the children in a nonparent/parent custody dispute are not in the custody of the natural parent. It requires a nonparent first to establish that the child is n ot in the custody of the natural p arent befo re the custod y dispute is determ ined ba sed up on the best inte rest test. We inclu de in the m inority line of ca ses th e ver y unusual West Virginia case of Lindsie D.L. v. Richard W. S., 214 W.Va. 750, 591 S.E.2d 308 (2003), even though the third party seeking v isitation was the half-sister of the child and was asserting her own alleged constitutional rights as a sibling. The child s natural father (who was not the father of the half-sister) objected, based upon his fundamental rights as a parent. The case had been dismissed below because the trial court had found that there was no legal right of visitation with a minor half-sibling. The West Virginia Supreme Court of Appeals held: [W]e now conclude that Lindsie [the half-sister seeking visitation] may have a right to continued visitation with her half-sibling. Id. at 754, 591 S.E.2d at 3 12. It then rem anded the case to the trial court for it first to hear and determ ine whether or no t visitation with her half-sister, Cassandra, is in the best interests of Lindsie [the half-sister seeking visitation] . . . [and] also -38- hear and determine whether such visitation is in the best interests of Cassandra [the sister with whom visitation w as sought]. In making this determination there is a presumption that [the natural father] is acting in the best interests of Cassandra. Id. at 756, 591 S.E.2d at 314 (alterations added). In In re the Custody of A.D.C., Child., 969 P.2d 708, 71 0 (Colo.App. 19 98), that court awarded custody to grandparents as against the natural mother. The court first described the pertinent issue: [The natural] Mother further argues that due process and the legal presumption in favor of the biological parent require that a parent be awarded custody unless it is shown by clear and convincing proof that the child w ould suffer emotional or physical harm by such an award. Again, we disagree. Under [a Colorado statute] the determination of custody is expressly based upon the b est interests of the child. Furthermore, due process does not require a showing of unfitness before custody may be awarded to a nonparent. [Altera tions ad ded.] [C itations o mitted.] The Suprem e Court of Pennsylvan ia in Charles v . Stehlik, 560 Pa. 334, 341-42, 744 A.2d 1255, 1258-59 (2000), reaffirmed a prior decision when it opined: Next, Appellant [natural fathe r] argues that Appellee [step father] should have been required not only to prove that there were convincing reasons as to why [the child] should remain with Appellee, but also that Appe llant wa s an un fit paren t. In Albrig ht v. Commonwea lth, 491 Pa. 320, 421 A.2d 157, 161 (1980), we stressed that the biological parent s prima facia right to custody is not to be construed as precluding a custody award to a nonparent, absent a demonstration of the parent s dereliction. We again emphasize that the standard seeks only to stress the importance of parenthood as a factor in determining the best interests of the c hild. H owever, other factors which have significant impact on the well bein g of the c hild can j ustif y a finding in favor of the non-parent, even though the parent has -39- not bee n show n to hav e been unfit. We see no reason to abandon our Albright holding. As noted supra, the cardinal concern in all custody cases is the best interest and permanent welfare of the child. [A lterations added.] 2. Hybrid View 21 Next we discuss the cas es that co ntain lan guage , that sup ports, so to spea k, a compos ite of the majority and the minority view s. In some in stances it is diff icult to determine where these particular states are in respect to the various views. In some of the cases, such as those from Vermont, the language also would support that state as being among the majority view that w e shall later discuss. These states that we consider to be somewhere in the midd le include the states of O regon, Co nnecticut, Vermont, Washington, Missou ri, Louisi ana, Maine, Nevada, Arkansas, Nebraska, Texas, perhaps California and, currently, perhaps this state. In some of the states the cases are intermediate appellate court cases, and in some of the states vario us intermed iate appellate decisions differ. In some, both positions are found within the same opinion. This is perhaps a result of the confusion that the term best interests can generate when applied in differing contexts. Although the court in the Vermont case of In re S.B.L., 150 Vt. 294, 553 A.2d 1078 (Vt.1988), actually decided that an unmarried father of a child born out of wedlock did not enjoy the parental presumption of fitness, it utilized language that indicated that its position 21 The Supreme Court of New Jersey in Watkins v. Nelson, 163 N.J. 235, 748 A.2d 558 (2000), which we address, infra, places the states of Vermont, Utah, Louisiana, Nevada, and Wyoming as states ascribing to the majority view. We place them in the hybrid category because some of the language of the cases is not clear. -40- emphasized the best interest standard. In essence, it first found that under Vermont law a father (not married to the mother) of a child was not considered to be the natural father and thus not entitled to th e presum ptions afforded a natural parent. Thus, it considered the dispute as between two third parties [to which the best inte rests test always applies]. The Vermont Supreme Court first noted: The instant case is novel because it is presented as a custody fight between a father of a child born out of wedlock, and a person who is neither the spouse of that party nor a parent of the child over whom custody is sought. As none of o ur mode rn cases inv olve parties of either of these classes, the presence of both as adversaries in a single case requires us to break substantial new g round . Id. at 298-300, 553 A.2d at 1081. At this poin t the Verm ont court no ted in a footnote that: Our one precedent on the respective custody rights of parents and third parties was decided in 1926. Although the child in [that case] was in the care of a grandparent, the custody order awarded custody to the child s father. Two recent cases have involved proceedings to award guardianship of a child to a third party because the parent is unsuitable. Id. at 300 n.1, 553 A.2d at 1081 n.1 (alteration added) (citations omitted). After first noting that the unmarried father of a child born out of wedlock was, according to Vermont law and to the comm on law, not presum ed to be a parent, that court stated: There is no per se statutory preference in favor of the natural fa ther of a ch ild born out of wedlock, and the statute does not impose on third parties seeking custody the initial burden of proving the father to be incompetent or unsuitable. ... For the above reasons, the statute does not prevent a grandparent from -41- competing on an equ al footing with a biologic al father for the guardia nship and custody of an illegitimate child. If the statute alone controlled, we wo uld have to reverse the judg ment f or the fa ther . . . . ... Because the father in Lehr [22] had not come f orward to participate in the rearing of his child, he had no cog nizable due pro cess inte rest. . . . However, todenysuchstatustoabiologicalfatherwhohasdevelopedtherequisite custodial, personalorfinancialrelationship with thechild deniesequal protection o f the law to the biologic al father un der the princ iples set forth in Lehr. We conclude therefore th at granting g uardiansh ip to a third perso n in preference to a parent who has demonstrated a commitment to parenthood based solely on a judicial determination of the best interests of the child without first requiring the third party to demonstrate that the parent is unfit denies the natural parent due process of law. S.B.L., 150 Vt. at 301-05, 553 A.2d at 1083-85 (footnote added). While the case ap pears to be d istinguishab le from the minority and perhaps deserves instead to be in the m ajority category in w hich the N ew Jersey S upreme C ourt has pla ced it, a later Vermont case, Boisvert v. Harrington, 173 Vt. 285, 796 A.2d 1102 (2002), which, although involving an effort to revoke the granting of a motion to terminate guardianship and decided under Vermont case law in respect to such revocations, contains language that may be consistent with the minority category. The court said: Moreove r, the parental preference doctrine is only that a preference an adv antage given to parents over ot her per sons. It does not answer the question of what is in the child s best interests. The day is long pas t in this State, if it had ever been, when the right of a parent to the custody of his or her child, where the extraordinary circumstances are present, would be enforced inex orab ly, contrar y to the be st interes t of the c hild, on the theory solely of an absolute legal right. Instead, in the extraordinary circumstance, when there is a conflict, the best 22 Lehr v. Robinson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). -42- interest of the child has alwa ys been regar ded as sup erior to the right of pare ntal cus tody. Indeed, an alysis of the case s reveals a shifting of emphasis rather than a remakin g of subs tance. This shifting reflects more the modern principle that a child is a person, and not a s ubperson over wh om the pa rent has an absolute possessory interest. Boisvert, 173 Vt. at 291, 796 A.2d at 1107-08 (emphasis added ). To the extent Vermo nt requires extraordinary circumstance s before best interests are considered it belongs to th e majority categ ory; to the extent it d oes not, it is con sistent with the minority view. We place it in the middle the hybrid view. The natural mother in the case of In re Juvenile Appeal (Anonymous) v. Commissioner of Children and Youth Services, 177 Conn. 648 , 420 A.2d 875 (1979), 23 was to an extent suffering physical and emotional (depression) problems evolving from attempting to parent the child while at the sa me ti me e arning a livin g for her fam ily. Her husband was paralyzed from an acciden t and could not w ork and the m other wa s trying to avoid going on welfare. While receiving treatment she was involuntarily committed to a state hospital and later she was committed to another treatment center. She spent approximately four months in the two institutions. While she was committed, her child was cared for first by a baby-sitter, and ultimately was adjudicated an uncared for child and placed with the Commissioner of 23 This case is really not in the class of third-party cases that concern us in the case sub judice. It is a case between the natural parent and the State, although the State seeks to place the child for adoption with a third party. We include it here as an example of the confusing aspects of the best interests standard in cases other than those between natural parents. -43- Children and Youth S ervices, which in turn, placed the child with the same baby sitter for care. Later, after sufficient recovery, the mother began ef forts to regain cu stody of her c hild by filing suit against the C ommissio ner. There after, the app ropriate authorities determined that she was then fit to be a parent. Nonetheless, after further skirmishes, the Commissioner filed a sepa rate petition to terminate her parental rights. Accord ingly, this opinion is not a pure th ird-party c ase in th at the sta te was t he petitio ning pa rty. In spite of the Maine (she had undergone recovery at her parent s house in Maine) authorities confirming that she was fit, the trial court ultima tely denied the natural mo ther s petition for revocation, terminated her parental rights and designated the Commissioner as a statutory parent for the purpose of placing the child for adoption with the babysitter and her husband. In its opinion the Supreme Court of Connecticut stated that it was the position of the Comm issioner that the departme nt disputed and still disputes, however, that return of the child to her mother was or is in the child s best interests because of the intervening attachment that formed between the child and her foster family during her mothe r s illness . Id. at 657, 420 A.2d at 880. The trial court had found for the Commissioner on that basis. In respect to the revocation of the child s commitment to the Commissioner, the court noted the statutory requ irements an d stated: While it is certain ly true . . . that parents have no natural right to the custody of their children that can prevail over a disposition effecting the child s best interests, parents are e ntitled to the pre sumption , absent a continuing cause for commitm ent, that revoca tion will be in the child s be st interest unless the state -44- can pro ve othe rwise. ... We must reject th e claim of s o-called pa rental rights theory under which the parent has rights superior to all others ex cept when he is proved unfit. Id. at 659-61, 420 A.2d at 881-82. The Connecticut Supreme Court then cited to several United States Supreme Court cases, including Stanley, supra, and in language that appears to contradict the earlier language noted: The termination of parenta l rights is define d as the com plete severance by court o rder of the lega l relation ship, with all its rights and responsibilities, between the child and his parent. It is a most serious and sensitive judicial action. Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of pa rents in their children undeniably warrants deference and, absent a powerful countervailing interest, protection. In contrast to cu stody proceed ings [presu mably betw een natura l parents], in which the best interests of the child are always the paramount consideration and in fact usually dictate the outcome, in termination proceedings the statutory criteria must b e met bef ore termina tion can be accomplished and adoptio n proce edings begun . Juvenile Appeal, 177 Conn. at 671-72, 420 A.2d at 886 (alteration added) (citations omitted). The Supreme Court of Nebraska has propounded a series of cases in which the standard approved is som etimes unclear. 24 Gomez v. Savage, 254 Neb. 836, 580 N.W.2d 523 (1998), was a case in which third parties were attempting to adopt two children over the natural father s objection and over the objection of the natural mother who was attempting 24 The Supreme Court of New Jersey in Watkins, supra, places Nebraska in the majority category. There is perhaps, in the cases discussed, sufficient language to place it into that category. We include it as a hybrid case because some of the language is unclear. -45- to revoke her consent to the adoption. When she had consented to the adoption she lied when she stated that she did not know who the father was and thus the natural father, Gomez, neither received notice nor consented to the adoption. The natural parents, although not married, had sporadically lived together and during those periods the natural father had partly supported the child. The natural father had married another woman by the time of the procee ding. Id. at 848, 5 80 N.W .2d at 53 3. The children were subsequently placed with the Savages. Gomez contested the adoption by filing a petition for a writ of habeas corpus for the return of his children. In the action Gomez conceded that if he w ere found to be unfit [to have custody] it was in the best interests of the child ren that they rem ain [] [in the custody of] the Savages. Id. at 852, 580 N.W.2d at 535 (alterations added). T he trial court fo und him to be unfit. The appellate court opined, almost in conflicting terms: Where the custody of a minor child is involved in a habeas corpus action, the cus tody . . . is to be determ ined by the best interests o f the child, with due regard for the superior rig hts of a fit, prop er, and suitab le parent. A court m ay not properly de prive a pare nt of the cu stody of a min or child unless it is affirmatively shown that such parent is unfit to perform the duties impo sed by the relatio nship, or ha s forfeited th at right. The right of a parent to the custody of a minor child is not lightly to be set aside in favor of more distant relatives or unrelated parties, and a court may not deprive a parent of such custody unless he or she is shown to be unfit or to ha ve fo rfeit ed his or h er su perior rig ht to such custody. ... [A]nd the State is no t required to sh ow harm to the children before parental rights can be terminated. ... Hav ing dete rmined that Go mez is u nfit, we find . . . [that] it is in the -46- best inte rests of the child ren to re main in custod y of the S avage s. Id. at 848-52, 580 N.W.2d at 533-34 (alterations added) (citations omitted) (emphasis added). See also Uhing v. Uhing, 241 Neb. 368, 373-74, 488 N.W.2d 366, 370-71 (1992) ( [a]lthough. . . the question present in every habeas corpus case is the best interests of the child, we cannot overlook or disregard that the best interests standard is subject to the overriding recognition that the relation ship betw een paren t and child is constitution ally protected[.] . . . The courts may not prope rly deprive a pa rent of the c ustody of a m inor child unless it is affirmatively shown that such parent is unfit . . . or has forfeited that right ) (citations omitted) (em phasis added). There are several other Nebraska cases wh ich contain similar langua ge, or merely find the natural parent unfit and go from there based upon the best interests stand ard. In some cases the state is involved in the process and thus, at least technically, they are not pure third-party cases. Three other states, through their intermediate appellate courts, have rendered opinions that allow us to place them in the hybrid category of cases. In In re Custody of Shields, 120 Wash.App. 108, 120-23, 84 P.3d 905 , 911-12 (2 004), a pos t-Troxel case, the interm ediate court, in a stepp aren t/nat ural pare nt cu stod y dispute, attempted to apply a standard it had created prior to Troxel to the post-Troxel case. The court stated: Prior to 1987, pa rent and no nparent c ustody actions were governed by [a specific Washington statute], which required courts to determine custody based on the best interests of the child. However, courts determining nonparent custody case s we re relucta nt to apply the best interests standard when determining custody as between a parent and a nonpa rent. See In re Marriage of Allen , 28 Wash.A pp. 637, 626 P.2d 16 (1981). -47- The Allen court concluded that courts determining custody between a parent and nonparent must apply a more stringent bala ncing test to p rotect both the parents co nstitutional righ ts to privacy a nd the f amily entit y. Allen held that the state may inte rfere with the parents c onstitutional rig hts only if (1) the parent was unfit, or (2) the child s growth and development would be detrimentally affected by placement with an otherwise fit parent. Sign ifica ntly, the Allen court proposed the detriment to the child standard as a middle ground requiring a showing more than best interests, but less than parental unfitness. ... In summary, we reaffirm our agreement with Allen . . . . Nevertheless the requisite showing under Allen is substantial. While the detriment stand ard does not require a showing of parental unfitness, it does require a showing of actual detriment to the child s g rowth and de velopm ent. [Alteration added.] [Some citations omitted.] See also In re Custody of S.H.B ., 118 Wash.App. 71, 74 P.3d 674 (2003), a contest for custody between two third p arties (the pater nal and m aternal gran dparents); In re Marriage of Allen, 28 Wash.App. 637, 626 P.2d 16 (1981 ); In re Welfare o f Schulz, 17 Wash.App. 134, 561 P.2d 112 2 (1977) (a termination case in which the court rejected gran dparents c laim to custody). An intermediate appellate court in Missouri in the case of M.P.M. v. Williams, 611 S.W.2d 274 (Mo.App. 1980), determined that the natural father was entitled to custody over the claim of a stepfather. The court found b oth fathers to be fit. It stated: It is w ell established that the parent has the superior right to the custody of his or her minor children as against third persons. This right will not be denied . . . unless it is established that the parent is an unfit pe rson or is un able to care properly for the minor children. Id. at 277-78 (citations omitted). See also In re Marr iage of Ca mpbell, 685 S.W.2d 2 80 (Mo.A pp. 1985), -48- where a different Missou ri intermediate appellate court found a father unfit and awarded custody to a third party stating the same standard as M.P.M. In Chavez v. Chavez, 148 S.W.3d 449 (Tex.App. 2004), a Texas intermediate appellate court, in a case where a third-party grandparent intervened in a divorce case seeking to have a conservatorship created in respect to the children of the marriage, stated: For the court to award mana ging co nserva torship t o a non -paren t . . . the non-parent must prove . . . that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. There must be evidence to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. Further, it is wholly inade quate to sim ply present evid ence that a non-parent would be a better choice as custodian of the child. ... Thus, the grandparents here had to establish either (1) it was not in the children s best interest for Liliana to be appointed as a managing conservator because it would sig nificantly impa ir the children s physical health or emotional development; or (2) Liliana voluntarily relinquished actual care, control, and possession of the children to the grandparents for a least one year . . . . Id. at 458-59 (citations omitted) (em phasis added). There are several intermediate appellate de cisions from various C alifornia courts in which a California visitation statute was challenged on constitutional grounds. At least one of the appellate circuits has held the statute constitutional, but that case notes that at least four California appellate opinions have found section 3102 unconstitutional . . . . Fenn v. Sherriff, 109 C al.App .4 th 1466, 1477, 1 Cal.Rptr.3d 185 (2003). The four opin ions in which the statute was declared unconstitutional wer e from dif ferent app ellate circuits. O ur state -49- may belong in either, or both, of the other categories. For that reason we have plac ed it with the hybrid states for the purposes of this opinion. All the language of the Maryland cases stress best interest of the child language, but often do so in a manner that can be construed, in respect to third-party disputes, as just another way of ascribing to the majority view. In other words, some language, sometimes in the same case, supports both views. All of the adoption cases seem to stress the best interest language, exclusively; as do, of course, the cases between natural pare nts and those between only third parties. Likewise, the language is used exten sively where the State is involved in actions affecting the natural parents rights. While the same language is always used in third-party cases involving attem pts to assert rights over natura l parents, othe r language in some of those cases appears to support the majority position, albeit always includ ing best inte rest langua ge as we ll. For exam ple, in one of our semina l cases in volvin g third-p arty/natura l parent c ontests, Ross v. Hoffman, 280 Md. 172, 175-79 (1977), we noted: The best interest standard co ntrols whe n the dispu te . . . is between his biological father and mother. It also controls when the dispute over custody is between a biological parent and a third party. . . . In parent-third pa rty disputes, however, there is a twist to the application of the best interest standard. Nevertheless, there persists in this State in a contest over the custody of a child, but always subject to the best interest standard, that part of the common law concept which declares that the right of either pa rent is ordinarily superior to that of a nyone el se. . . . In Ross v. Pick, supra, 199 Md. at 351[, 86 A.2d 463 (1953 )], we se t out this p rinciple in the fo rm of a presum ption . . . . In Ross v. Pick, supra, 199 Md. at 351 , we pointed out that the o rdinary entitlement of parents to the custody of their minor children . . . is not an absolute one and declared that the right may be f orfeited w here it appears that any parent is unfit to have custody of a child, or where some exceptional -50- circumstances render suc h custody de trimental to the best interests of the child. To recapitulate: the best interest of the child standard is always determinative in child custody disputes. When the dispute is between a biological parent and a third party, it is presumed that the child s best interest is subserved by custody in the parent. That presumption is overcome and such custody will be denied if (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child. Therefore, in parent-third party disputes over custody, it is only upon a determination by the equity court that the paren t is unfit or that there are excep tional circumstances which make custody in the parent detrimental to the best interest of the child, that the court need inquire into the best interest of the child in order to make a proper custodial disposition. 25 [Bolding adde d.] [Citations omitted.] [Emp hasis added.] The language of Hoffman that we have emphasized and bolded, when compared with the rest of the language as to the best interest standard appears to create a conundrum of sorts. If the custody is always to be ultimately determined by what is in the best interests of the child then the parents fitness or extraordinary circumstances have no place in the discussion. In our view, the best interest language of Hoffman, with the presumptions and conditions attache d to it, can be interp reted as consiste nt with the ma jority view , i.e., in thirdparty cases there must first be a finding of parental unfitness or extraordinary circumstances before custody can be transferred to a third party based on a best interest analysis. Numerous of this state s appellate cases since Hoffman, if not all of them, can be traced back to that case. For instance, the Ross v. Hoffman language was discussed extensively in the Court of Special Appeals case of Lipiano v. Lipiano, 89 Md.App. 571, 25 In Shurupoff, supra, we included language that appears to reject the last phrase in Hoffman. It is that language in Shurupoff that might be construed to place Maryland in the minority category. -51- 577-78, 598 A.2d 854, 857 (1991), where that court stated: The principles governing the judicial resolution of child custody disputes between biological p arents and other persons were set fo rth in Ross . . . . Summarizing its several conclusions, the Court there held, at 178-79: To recapitulate: the best interest of the child standard is always determinative in child custo dy disputes [here that court quotes the same language from Ross we have quoted above]. The language used by the Ross Court is clear and precise. It does not envisage there being degrees of third parties natural parents who are not biological parents, equitable parents, and others. Certainly, the closeness of the relationship between the child and the non-biological parent is of considerable importance, but that importance relates to whether there are exceptional circumstances which would make an award of custody to the biological parent detrimental to the best interest of the child. [Alteration added .] In a true best in terest jurisdictio n, the standa rd would be applied directly to the child as it is in the minority jurisdictions, such as Pennsylvania, Colorado, perhaps Oregon and other sta tes. Hoffman has been extensively cited throughout our most recent case of Shurupo ff v. Vockro th, 372 M d. 639, 814 A.2d 543 (2003), in which we quote most of the above language from Hoffm an. We also stated in that case, addressing evidentiary standard issues, but also noting the la nguage p roblem w e have pre viously discuss ed, that: To some extent, these differences may account for some of the language used by the courts in describing the standard of proof applicable in those cases. Maryland law is somewhat ambiguous. On the one hand, Maryland Code, § 5-203(a)(2) of the Family Law Article, provides that a parent is the sole natural guardian of his or her minor child if the other parent dies, abandons the family, or is incapable of acting as parent. On the other, we have not viewed custody disputes between a surviving parent and a third party as in the nature of legal guardianship proceedings, but, subject to the Ross v. Hoffman analysis, as like any other custody case. Some States, as petitioner notes, have, indeed, adopted a clear and convincing eviden ce standard in parent/third party custody cases (or in cases -52- that the court found equivalent to a custody dispute). Other States have adopted that stan dard in cases . . . upon rationales that are inconsistent with the Marylan d expe rience a nd app roach. . . . We are aware of no case in which a State Supreme Court has concluded that the clear and c onvincing evidence standard is required in pure custody disputes between a parent and third party as a matter of Constitutional law. . . . We do not regar d an orde r gra nting custod y of a c hild to a th ird party, subject to modification and with appropriate visitation privileges reserved to the pare nt, as the equiva lent of te rminatin g paren tal rights . . . . Shurupoff, 372 Md. at 655-57, 814 A.2d at 553-54 (citations omitted). At the conclusion of the Shurupo ff opinion, we announced an interpretation of Hoffman s main holding by stating that w e, in Hoffman, should have stopped there. Instead, we continued, in the very n ext sentence: . . . and we proceeded to describe the qualifying language from Hoffman. Our Shurupo ff opinion stated: Having first announced th at the best inter est of the child is always determinative in child custody disputes, we did muddy the waters a bit by stating that, unless the trial court finds unfitness or exceptional circumstances that would make custody in the parent detrimental to the child s best interest, it need not inquire into the best interest of the child in order to make a proper custodial disposition. Shurupo ff, 372 Md. at 661-62, 814 A.2d at 557. We then contin ued by stating, w ithout overruling the language from Hoffman, that [t]he court must always, necessarily, inquire into what is in the child s best interest, for that is the ultimate, determinative factor. Shurupo ff, 372 Md. at 662, 814 A.2d at 557. With that additional langua ge, if it sta nds, M aryland h as gon e from , questionably, the majority view in this country as to private third-p arty custody actions to clearly the minority view. That was -53- not the inten tion of the C ourt. We shall ho ld, as w e indica ted in the beginn ing of o ur opin ion, that, generally, in private actions in which private third parties are attempting to gain custody of children of natural parents over the objection of the natural parents, it is necessary first to prove that the parent is unfit or that there are extraordinary circumstances posing serious detriment to the child, before the court may apply a best interest standard. With this clarification, Maryland will be c onsisten t with th e majo rity view in this cou ntry. It appears, as we now view it, that the original qualifying language in Hoffman as to third-party cases, is closer to, although not s quarely within, the majority view than to the minority view. 3. Majority View We now discuss the ma jority view , i.e., because of the presumption that natural parents are fit to raise their children and/or because natural parents have a fundamental constitutional right to raise their children, or both, there must first be a finding that the natural parents are unfit, or extraordinary circumstances detrimental to the welfare of the child must first be determined to exist, before the best interest of the child test may be applied when private third-parties dispute custody with natural parents. The majority view, in one manifestation or another, prevails in at least the follow ing states: New Jersey, Iowa, Ohio, New York, Wisconsin, Nevada, Arkansas, Maine, Alaska, Kansas, South Dakota, North Dakota, Tenn essee, Ok lahoma, M ontana, N ew M exico, No rth Carolina , South -54- Carolina, Alabam a, Kentuc ky, Rhode Is land, Ma ssachusetts, M innesota, M ississippi, Georgia, Virginia, Florida, Indiana, Utah, probably Idaho, an d until, arguably, re cent ly, Maryland. The Supre me Court of New Je rsey would a lso place A rizona, M issouri, California, Washington and New Hampshire in the majority category. With the case sub judice, Ma ryland returns to the ma jority c ateg ory. 26 Because it has furnish ed a com prehensiv e view of the case law on the issue of the rights of natural parents vis-à -vis third parties, we shall commence this discussion with a relatively recent case from the S upre me C ourt of N ew J erse y, Watkins v. Nelson, 163 N.J. 235, 248-53, 748 A.2d 558, 565-68 (2000). There the court discussed the varying views: The standard that we articulate today has been applied, either in whole or in part, in most jurisd ictions that ha ve been c onfronted with the issue. Like this Court, they have created a presumption in favor of a parent that may be rebutted by proof of parental unfitness, neglect, or exceptional circum stances . See, e.g ., C.G. v. C.G., 594 So.2d 147, 149 (Ala.Civ.App. 1991) (quoting McLendon v. McLendon, 455 So.2d 861, 862 (Ala.Civ.App. 1984)[27]) (requiring clear and convincing evidence that the parent is unfit or unsuited for custody and that the best interest of the child will be served by granting custody to the third person ); Maricopa County Juvenile Action No. JD-05401, 173 Ariz . 634, 845 P.2d 1129, 1136 (Ariz.App. 1993) (stating parental presumption can only be overcome by stringent standard requiring showing of unfitne ss or neglec t); In re Guardianship of D.A. McW, 460 So.2d 26 Because of some of the language found in some cases, we have not p laced them in the majority category, and have placed some of them in the hybrid category, although they appear to be closer to the majority view than the minority view. 27 In McLendon v. McLendon, 455 So.2d 863, 866 (Ala. 1984), the Supreme Court of Alabama reversed the decision of the Alabama intermediate appellate court on narrow grounds regarding prior grants of custody. Since McLendon, 455 So.2d 863, the Supreme Court of Alabama has squarely placed that sta te in the m ajority. See Ex parte N.L.R., 863 So.2d 1066 (Ala. 2003), discussed infra. -55- 368, 370 (Fla. 1984) (stating paren tal presump tion can be rebu tted only if detrimental to the welfare of the child based on an exceptional circumstances test); Carvalh o v. Lewis , 247 Ga. 94, 274 S.E.2d 471, 472 (1981) (applying unfitness or compelling circumstances test and noting [a] court is not allowed to terminate a parent s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere ); Stockwe ll v. Stockwe ll, 116 Idaho 297, 775 P.2d 611, 613 (1989) (requiring unfitness, abandonment, or that the child has been in the nonparent s custody for an appreciable period of time ); In re Kirchner, 164 Ill.2d 468, 208 Ill.Dec. 268, 649 N.E.2d 324, 334-35, 339 (1995) (stating nonparent only has standing to petition for custody of child if parent voluntarily and indef initely relinquished custody, or upon a finding of unfitness); In re Gua rdianship of Williams, 254 Kan. 814, 869 P.2d 661, 669 (1994) (requiring unfitness, neglect, or highly unusual or extraordinary circumstances even though the trial court might feel that it would decide otherwise if free to con sider only the b est interests apart from the benef its to be derived from the love an d care of the natural paren t ); Davis v. Collinswo rth, 771 S.W.2d 329, 330 (Ky.1989) (requiring unfitness or abandonment and noting that failure to provide essential care only qualifies when based on reasons other than poverty alone); Sider v. Sider, 334 Md. 512, 639 A.2d 1076, 1086 (1994) (requiring unfitness or exceptional circumstances); White v. Thompson, 569 So.2d 1181, 1183-84 (Miss.1990) (requiring abandon ment, unf itness, or immorality); Cotton v. Wise, 977 S.W.2d 263, 264 (Mo.1998) (req uiring unfitness, abandon ment, or extraordinary circumstances ); In re Guardianship of K.M., 280 Mont. 256, 929 P.2d 870, 873 (1996) (requiring volun tary relinquishment); Henderson v. Henderson, 174 Mont. 1, 568 P.2d 177, 181 (1977) (requiring unfitness, neglect, or delinquency); Locklin v. Duka, 112 Nev. 1489, 929 P.2d 930, 933 (1996) (requiring unfitness or extraordinary circumstances); In re Adoption of J.J.B., 119 N.M. 638, 894 P.2d 994, 1008 (1995) (requiring unfitness or extraordinary circumstances); Merritt v. Way, 58 N.Y.2d 850, 460 N.Y.S.2d 20, 446 N.E.2d 776, 777 (1983) (requiring surrender, abandonment, unfitness, persistent neglect, or other extraordinary circumstan ces); In re Woo dell, 253 N.C. 420, 117 S.E.2d 4, 7 (1960) (quoting James v. Pretlow, 242 N .C. 102, 8 6 S.E.2d 759, 761 (1955)) (stating natural parent has right to child which may only be interfered with for the most substantial and sufficient reasons and . . . only when the interests and welfare of the children clearly require it ); In re E.J.H., 546 N.W.2d 361, 364 (N.D.1996) (requiring a finding of exceptional circumstances to trigger a best-interest analysis ); In re Guardianship of M.R.S., 960 P.2d 357, 361-62 (Okla.1998) (quoting Alford v. Thomas, 316 -56- P.2d 188 (Okla.1957)) (requiring unfitness or circumstances of great weight and importanc e connec ted with the necessary welfare of the child); Ryan v. DeM ello, 116 R.I. 264, 354 A.2d 734, 735 (1976) (stating the Family Court may award the custody of a child to a relative . . . if there has been a judicial determination that the child is delinquent, wayward, neglected, or otherwise comes within the purview of the Family Court Act ); Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456, 458 (1989) (requiring unfitness unless parent temporarily relinquishes custody and then extraordinary circum stances); D.G. v. D.M.K., 557 N.W.2d 235, 243 (S.D.1996) (requiring gr oss miscon duct, unfitness, or extraordinary circumstances beyond a simple showing of best interests); In re Adoption of Fema le Child, 896 S.W.2d 546, 548 (Tenn.1995) (stating parent cannot be deprived of custody unless there has been a finding of substantial harm to the child); Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824, 827 (1986) (quoting Wilkerson v. Wilkerson, 214 Va. 395, 200 S.E. 2d 581, 583 (1973) (requiring unfitness, abandonment, voluntary relinquishment or special facts and circumstances . . . constituting an extraordinary reason for taking a child from [a] parent ); In re S.B.L., 150 Vt. 294, 553 A.2d 1078, 1082 (1988) (req uiring unfit ness or extraordinary circumstances); Snyder v. Scheerer, 190 W.Va. 64, 436 S.E.2d 299, 304 (1993) (requiring unfitness, neglect, abandonm ent or waiver). Four states rely on harm to the child, which is part of the exceptional circumstances exception. See, e.g., Carter v. Novotny, 779 P.2d 1195, 1197 (Alaska 1989) (requiring u nfitness or th at parental cu stody would be clearly detrimental to the child. ); Nancy S. v. Michele G., 228 Cal.App.3d 831, 279 Cal.Rptr. 212, 214-15 (1991) (requiring a showing that award of custody to a parent w ould be detrimental to the child ); Hutchison v. Hutchison, 649 P.2d 38, 41 (Utah 1982) (requiring unfitness or that no strong mutual bond exists, that the parent has n ot demon strated a willin gness to sac rifice his or her own interest and welfare for the child s, and that the parent lacks the sympathy for and understanding of the child that is charac teristic of pare nts generally ); In re Marriage of Allen, 28 Wash.App. 637, 626 P.2d 16, 23 (1981) (holding that something more than the best interests of the child is req uired to show actual detriment to the child, but not requiring u nfitness). A small minority of jurisdictions apply a hybrid of the child s best interest test and the exceptional circumstances exception. See, e.g ., Freshour v. West, 334 Ark. 100, 971 S.W.2d 263, 266 (1998) (recognizing preference for parent, but noting child s best interest is controlling); Durkin v. Hinich, 442 N.W.2d 148, 153 (Minn.1989) (noting presumption exists unless parent is unfit or grave and weighty reasons exist that custody otherwise would not be in the best welfa re and interest of the child ); Stanley D. v. -57- Deborah D., 124 N.H. 138, 467 A.2d 249, 251 (1983) (recognizing parental presumption, but making ultimate determination depend on child s best interests); Charles v . Stehlik, 744 A.2d 1255, 1257 (Pa.2000) (same); In re Kosmicki, 468 P.2d 818, 823 (Wyo.1970) (requiring unfitness or best interest of child, but in proceeding s involving children of tender years it is on ly in very exceptional circumstances that a mother should be deprived of the care and custody of her children ). One reason the overwhelming majority of states do not apply simply the child s best interests standard, or the ubiquitous, amorphous standard urged by the dissenters, is fear that if taken to its logical conclusion, application of [that] standard c ould lead to a redistribution of the entire m inor popu lation among the worth ier memb ers of the co mmun ity. Vanessa L . Warzynski, Termination of Parental Rights: Th e Psychological P arent Standard, 39 Vill. L.Rev. 737, 759 (1994) (qu oting Hele n Simpson, The Unfit Parent: Conditions Under Which a Child May Be Ado pted Witho ut the Con sent of His P arents, 39 O. Det. L.Rev. 347, 355 (1962)). We have applied the parental preference to avoid the danger of giving courts the p ower to a ward cu stody . . . to [nonparents] solely on th e groun ds of b est intere sts. If [that] is the only criterion, then a judge may take children from their parents because the judge personally [disapproves of] the parents limited means. Turner v. Pannick, 540 P.2d 1051, 1054 (Alaska 1975)[28](citing with approval In re B.G., 11 Cal.3d 679, 114 C al.Rptr. 444, 523 P.2d 2 44 (1974)). The standard we adopt today is designed to reduce or minimize judicial opportunity to engage in social engineering in custody cases involving third parties. In contrast, under the standard urged by Justice Stein, custody would be awarded to a third party if the child s growth a nd develo pment w ould be detrimentally affected by placement with a parent. Post at 290, 748 A.2d at 589 (Stein, J., dissenting). It appears that he is urging a c amouflaged c hild s best interest s tandard . The use of such a standard to decide custody disputes between a fit parent an d a third party w ill evolve into a fitness con test whose outcome will depen d on the w hims of th e trial court. Application of Justice Stein s detrimenta lly affected stan dard to this case reveals only that it might be detrimental to Chantel to be raised by Larry when compared to the Nelsons. He then concludes that the Nelsons might poss ibly be better paren ts tha n La rry. The danger inherent in that appro ach is that it permits reallocation of children by the judiciary a system that would undoub tedly victimize po or people . See Carolyn Curtis, The Psychological Parent Doctrine in Custody Disputes 28 This case was discussed in Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004), which we address infra. -58- Between Foster Pa rents and B iological Pa rents, 16 Colum. J.L. & S oc. Pro bs., 149, 155 (1980). The standard that we adopt has as its benchmark the welfare of the c hild wh ile at the s ame tim e protec ting par ental rig hts. The Ne w Jersey cou rt then stated th e majority view , holding: To recapitulate, it is the relationship of the child to the person seeking custody that determines the standard to be used in deciding the custody dispute. W hen the disp ute is betwe en two fit parents, the best interest of the child standard co ntrols . . . . But, when the dispute is between a fit parent and a third party, only the fit parent is presumed to be entitle d to cus tody. . . . Viewed in that context, in custody determinations between a fit parent and a third party, as opposed to claims made between two fit parents, the child s best interests become a fac tor only after the parental termination standard has been met, rather than the de terminative standard itself. The standard that controls a cu stody dispute b etween a third party and a parent involves a two-step analysis. The first step requires application of the parental termination standard [29] or a find ing of excep tional cir cumsta nces. If either the statutory parental termination standard or the exceptional circumstances prong is satisfied, the second step requires the court to decide whether awarding custody to the third party wo uld promote th e best interests of the child . . . . That said, the point to be emphasized is that the best interest of the child cannot validly ground a n award of custody to a third party over the objection of a fit paren t without an initial court find ing that the standard for termination of the rights of a non-consenting parent or the exceptional circumstances prong has been sa tisfied. Any contrary expressions in reported decisio ns are d isappro ved. Watkins, 163 N.J. at 253-55, 748 A.2d at 568-69 (footnotes added) (some emphasis added). See also P.B. v. T.H., 370 N.J.Super. 586, 598, 851 A.2d 780, 787 (N.J.App.Div. 2004) ( Unless the neighbor can first establish psychological parent status . . . the best interests test is never reached. Strangers may not compete with fit parents on the basis that they might be a better parent. ); Zack v. Fiebert, 235 N.J. Super. 424, 563 A.2d 58 (N.J.App.Div. 29 Language in the case indicates that the parental termination standard in New Jersey requires a natural parent to be grossly immoral or unfit. -59- 1989). In the third party case of Halvorsen v. Halvorsen, 521 N .W.2d 725 (Io wa 19 94), a stepparent was attempting to gain custody over a child from the natural mother during a divorce ca se. The Su preme C ourt of Iow a, held for th e natural m other, opinin g: If Bob is considered to be a bio logical parent, we would apply the best interests of the child standard [the standard in contests between natural parents] . . . rather than using the more difficult burd en of pro of required to grant custo dy to a nonpa rent over a p arent. ... A court may only grant a nonparent custody of a child over a parent when the nonparent proves that the pare nt . . . is not s uitable to have c ustody. We have observed on more than one o ccasion tha t [c]ourts are n ot free to take children from p arents si mply by de ciding a nother home offers more a dvanta ges. Bob is not the biological parent of [the child]. Therefore, he is a nonpare nt. . . . To succeed he must prove that [the natural mother] is an unsuitable custodian for [the child]. Id. at 728- 29 (alter ations a dded) ( citations omitted ). The Court of Appeals of New York, in a succinct opinion in the case of In the Matter of Merritt v. Way, 58 N.Y.2d 850, 853, 446 N.E.2d 776, 777 (1983), summarized the law in that state: In a custody contest between parent and nonpare nt, the questio n of best inte rests is not reached absent a showing of surrender, abandonment, unfitness, persistent neglect or other extraordinary circumstance (citation omitted). New York s lower courts still adhere to the Merritt majority view. See Sean H. v. Leila H., 5 Misc.3d 315, 783 N.Y.S.2d 785 (N.Y.Su p.Ct. 2004) ( The state may not deprive a parent of the custody of a child absent surrender, abandonment, persistent neglect, unfitness or other like, extraordinary circumstances. See also Campbell v. Brewster, 779 N .Y.S.2d 665, 666 (N.Y.App.Div. -60- 2004) ( Only if such extraordinary circumstances are proven will the court examine the best interests of the child ) (citation omitted); In the Ma tter of Rudy v. Mazze tti, 5 A.D.3d 777, 774 N.Y.S.2d 171, 172 (N.Y.App.Div. 2004) ( Once there is a finding of extraordin ary circumstances, a best interests determination is triggered ) (citations om itted) (emph asis added); In the Matter of Vann v. Herson, 2 A.D.3d 910, 912, 768 N.Y.S.2d 44, 46 (N.Y.App.Div.2003) ( In the event the threshold of ex traordinary circumstances is satisfied, a court then p roceeds to determine custody through application of the best interest standard ) (citations omitted). Several other intermediate appellate court holdings in New York are consistent w ith Merritt. The Maine case of Rideout v. Riendeau, 761 A.2d 291 (Me. 2000) involved the issue of the constitutionality of Maine s Grandparents Visitation Act in light of the Troxel decision of th e Suprem e Co urt finding th at the Was hing ton third party visitation act was unconstitutio nal. The Maine court found its statute to be constitutional because it was sufficiently narrowly tailored to meet a compelling state interest. In the process it noted: The Troxel opinion does, how ever, provide us with clear guidance on important p oints. First, The liberty interest at issue in this case the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests reco gnized by this court. The fundamental right of parents to direct the ca re and up bringing o f their children does not disappear in the face of a third party s request for visitation with the child ren. Second, the best interests of the child standard, standing alone, is an insufficient standard for determining when the state may intervene in the decision making of competent parents. And finally, because of the presumption that fit parents act in the best interests of their children, trial -61- courts must accord special weight to parents decisions and objections regarding requests for third-party visitation. ... A ccor ding ly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reas on for the S tate to inject itself into the private realm of the family to further question the ability of that parent to make the bes t decisio ns con cerning the rear ing of th at paren t s childr en. ... We agree with the trial court, however, that something more than the best interest of the child must be at stake in order to establish a compellin g state interest. ... The State, therefore, has an urgent, or compelling, interest in providing a forum for those grandparents having such a sufficient existing relationship with their grandchildren. ... The court may not simply consider the best interest of the child, but must also consider and give significant weight to the parents position, thus preventing the court from intervening in a fit parent s decision making simply on a best interests basis . Again, the court must focus its attention, not solely on the determination of the best interests of the child, but also on how the visitation would affect the parent s relationship with that child. If the court determines that visits with a grandparent will significa ntly interfere w ith the parent-child relationship, that determ ination p reclude s any furth er intrus ion into the pare nt s dec ision. Id. at 297-303 (citations om itted) (emphasis added) (fo otnote omitted). In Barstad v. Frazier, 118 Wis.2d 549, 551, 553-54, 568, 348 N.W.2d 479, 482-83, 489 (1984), a third-party custody dispute, the Supreme Court of Wisconsin stated: In its findings of fact and conclusions of law, the circuit court stated that it was applying the best interests of the child criteria but also stated that there were com pelling reasons fo r not awa rding custo dy of Mich ael to his mother. We conclude that the best interests of the child is not the proper standard in custody disputes between a natural pare nt and a third party and also that the record does not su pport a conclusion of compelling reasons for -62- denying custody to Micha el s mother. ... Other jurisdictions have had occa sion to analyze the legal and social forces at work when courts have been called upon to steer the frail bark of a child s best interest through the cross-currents of parent-grandparent relationships, where the whirlpools of love a nd attachm ent may pull powerfully in opposite directions. When a parent is young, the physical, financial and even emotional factors may often appear to favor the grandparents. One cannot expect young parents to compete on an equal level with their established older relatives. So the best interest sta ndard cannot be the test. If it were we would be forced to conclu de that o nly the mo re afflu ent in ou r society sh ould ra ise child ren. To state the proposition is to demonstrate its absurdity. ... We conclude that the rule to be fo llowed in custody disputes between parents and third parties is that a parent is entitled to custody of his or her children unless the parent is either unfit or unable to care for the children or there are compelling reasons for a war ding custody to a thir d party. Compelling reasons include aban donment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstan ces that w ould drastically affect the welfare of the child. If the court finds such compelling reasons, it may award custody to a third party if the best inte rests of the child ren wo uld be p romote d thereb y. [Citatio n omitte d.] [Em phasis a dded.] [ Footn ote om itted.] See also Howard M. v. Jean R., 196 Wis. 2d.16, 539 N.W.2d 10 4 (1995). In Schuh v. Roberson, 302 Ark. 305, 306, 788 S.W.2d 740, 741 (1990), the Supreme Court of Arka nsas review ed a case in which the trial court had granted cu stod y to a third party, a grandparent who had intervened in a divorce action and in a later paternity action, over a parent s objection. The c ourt noted that the natural parent was claiming that she had not been found unfit and accordingly the trial court should not have granted custody to the grandpa rent. The court opined noting that, when a third person seeks to deprive a parent -63- of custody, she cannot do so without first proving that the parent is no t a suitable per son to have the child (emphasis added). Later, in an opinion consistent with Schuh, in an intermediate appellate co urt case in w hich the state s ought to term inate paren tal rights in favor of the g randpa rents, Robbins v. Sta te, 80 Ark.App. 204, 208, 92 S.W.3d 707, 710 (2002), 30 that court opined, As a general rule, there must be a finding of unfitness of the natural parents in o rder to give c ustody to a third p arty. A differe nt Arkan sas intermed iate appellate court appears to have departed somewhat from the Schuh holding. In Dunham v. Doyle, 84 Ark.A pp. 36, 40, 1 29 S.W .3d 304, 30 7 (2003), th e court stated, inter alia that, While there is a preference in custody cases to award a child to its biological parent, that preference is not absolute. Rather, of prime concern, and the controlling factor, is the best interest of the child (citation omitted). We presume the controlling la w in Ark ansas is its Supreme Court s Schuh opinion, albeit it is fifteen years old. The Neva da high court o pined, in at least tw o earlier cases, Norris v. G raville, 95 Nev. 71, 589 P.2d 1024 (1979) and Cole v. Dawson, 89 Nev. 14, 504 P.2d 1314 (1973) that, the policy of this state is to award custody to a parent, in preference to a nonparent, unless the parent is found to be un fit. Norris, 95 Nev. at 73, 589 P.2d at 1025.31 30 Technically, this case is not a pure third-party case in that it originated via an action filed by the state based upon alleged child sexual abuse in the home of the natural parent. 31 In reference to the propriety of joint applications for custody by the natural parents and grandparents, the Nevada court said, such [a joint] application is not against public policy if in the best interest of the child. Cole, 89 Nev. at 16, 504 P.2d at 1316. It is because of this language that some might place Nevada in the hybrid category of states (continued...) -64- In two separate later cases the Supreme Court of Nevad a, while ap parently attempting to establish w hat constitute d situations contrary to the welfare of the child, discussed a Nevada standard that appears to be its application of extraordinary circumstances. First, in Locklin v. Duka, 112 Nev. 1489, 1495-96 , 929 P.2d 930, 934 (1996), the c ourt stated in reliance on opinions of oth er states, including Maryland s Ross v. Hoffman, supra, in regard to what constitutes extraordin ary circumstan ces, that, [w ]e therefore hold that in Nevada, extraordinary circumstan ces sufficie nt to overcome the p arental preference presu mption are those circumstances which result in serious detriment to the child. Then, apparently further protecting parental rights, that court held that even after the parental presumption has been rebutted by the showing of serious detriment to the welfare of the child, the court must then still go on to consider the best interests of the child before depriving a parent of cu stod y: We also conclude, consistent with the law in New York and Wisconsin, that when considering the two -part test . . . the best interests of the child must still be considered, even after a finding of extraordinary circumstances that overcome the parental preference presum ption. Locklin, 112 Nev. at 1496, 929 P.2d at 935. The Locklin court focu sed only on what constituted extraordinary circumstances and left intact that state s parental fitness test that it had restated a few months prior in Litz v. Bennum, 111 N ev. 35, 888 P.2d 438 (1995): We conclude that the parental preference policy is a rebuttable presumption 31 (...continued) rather than with the majority view. -65- that must be overcome either by a showing that the parent is unfit or other extraordinary circumstances. The Bennu ms argue that Fisher v. Fisher, 99 Nev. 762, 670 P.2d 572 (1983 ), deem phasiz es the p arental p referen ce doc trine. Therefore, the Fisher court did not change the fact that the parental preference doctrine is a presumption that must be overco me if the p arent is fit. Instead, the Fisher court emphasized that when it clearly appears that the child s welfare requires a change of custody, then the natural parent presumption may be overcome. However, this court has made it clear that the best interests of the child is usually served by awarding his custody to a fit parent. Litz, 111 Nev. at 38, 888 P.2d at 440 (some citations omitted). The Supreme Court of Alabama recently placed that state clearly in the majority category when it stated in Ex parte N.L.R, 863 So.2d 1066, 1068-69 (Ala. 2003): This Court recently stated the standard a trial court must apply in a custody dispute between a parent and a nonparent: This Court established the standard a trial court must apply in a custody dispute between a parent and a non parent: The prima facie right of a natural parent to the custody of his or her child, as against the right of custody in a nonparent, is grounded on the common law concept that the primary parental right of custody is in the best interest and welfare of the child as a matter of law. So strong is this presumption, absent a showing of voluntary forfeiture of that right, that it can be overcome only by a finding, supported by competent evidence, that the parent seeking custody is guilty of . . . misconduct or neglect to a degree which renders that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question. ... Therefore, before the trial court could properly award custody to the maternal grandmother, the trial court had to find N.L.R unfit to be entrusted with the custody of his children. However, the trial court instead found N.L.R. to be fit to have custody. This finding clearly precluded, as a matter of law, the award of custody to the maternal grandmother. [Citation omitted.] [Some emphasis added .] -66- In Kay v. Rowland, 285 S.C. 516, 517, 331 S.E.2d 781-82, 781 (1985), the Supreme Court of South Carolina, citing to McDowell v. Richardson, 279 S.C. 268, 305 S.E.2d 577 (1983), op ined: In McD owell, we held it was error to award custody to a grandparent absent a finding tha t the natural pa rent was unf it. Thus, we recognized the superior rights of a natural parent in a custody dispute with a third party. Once the natural p arent is d eemed fit, the issu e of cu stody is de cided. In Hockstok v. Hockstok, 98 Ohio St.3d 238, 242, 246, 247, 781 N.E.2d 971, 975, 979 (2002), the Supreme Court of Ohio addressed the pertinent issues in a paternity case. It first noted a statute that pro vided that if a court foun d that it was in the best interests o f a child for neither natu ral parent to have custody, a court could give custody to a relative of the natural pare nts. The co urt nonethe less opined : Ac cord ingly, we have held that in a child custody proceeding between a parent and non parent, a court may not award custody to the nonparent without first determining that a preponderance of the evidence shows that the parent abandoned the child; contractually relinquished custody of the child; that the parent has beco me totally incapable of supporting or caring for the child; or that an award of custody to the parent would be detrimental to the child. If a court concludes that any one of these circumstances describes the conduct of a parent, t he parent may be adjudged unsuitable, and the state may infringe upon the fundam enta l parenta l libe rty inte rest o f chi ld cu stod y. Thus, a finding of parental unsuitability has been rec ognized b y this court as a necessary first step in child custody proceedings between a natural parent a nd non parent. In In re Perales,[32] we held that since the issue of custody in that case did not arise from a divorce proceeding but rather from a dispute between a parent and a nonparent, the juvenile court erred in applying the best interest standa rd . . . . Such an outcome [requiring a hearing where a natural parent has a right to 32 In re Perales, 52 Ohio St.2d 89, 369 N.E.2d 1047 (1977). -67- contest unfitness] is consistent with the jurisprudence of this court that in custody cases betw een a natu ral parent an d nonpa rent, a parental u nsuitability determination must be made and appear in the record before custody can be awarded to a nonpa rent. ... After such a d etermin ation ha s establis hed, or taken away, a parent s fundamental custodial righ ts, the focus m ust shift from the rights of the parents to the rights of the child. A child s rights are effectuated through the use of the best-interest-o f-the-child standard for subsequent custodial modification reques ts. [Alterations added.] [Citation omitted.] [Emphasis added.] [Footn ote add ed.] See also Perales, supra; Masitto v. M asitto, 22 OhioSt.3d 63 , 488 N.E.2d 85 7 (1986). Ohio s intermediate appella te courts have o pined s imilarly. See In re Alyssa, 153 OhioApp.3d 10, 790 N.E.2d 803 (2 003); In re Adoption of Mays, 30 OhioAp p.3d 195, 507 N .E. 453 (1986). The Supreme C ourt of Alask a has add ressed the issu e in a case in which g randparen ts had intervened in a custody dispute between natural parents and were awarded custody over the objections of the natural parents. Much of the case concerns the evidentiary standards (preponderance or clear and convincing) that were applicable. That court also discussed the rule as to third-party custody in Alaska. In Evans v. McTaggart, 88 P.3d 1078, 1083, 1085 (Alaska 2004), the court stated: In Turner v. Pannick33 the question was whether the welfare of the child requirement . . . could be satisfied if the non-parent showed that the child s best interests would be served by awarding custody to the non-parent, or whether the non-parent must prove that it clearly would be detrimental to the child to permit the parent to have c ustody. Turner held that the welfare of the child test could not be satisfied by a best interests showing and that what was required was a showing that parental cu stody would clearly be detrim ental to 33 Turner v. Pannick, 540 P.2d 1051 (Alaska 1975). -68- the child. ... We thus hold that in order to overcome the parental preference a non-parent must show by clear and convincing evidence that the paren t is unfit or that the welfare of the child requires the child to be in the custod y of the non-p arent. One element of the welfare of the child requirement is that the non-parent must show that the child would suffer clear detriment if placed in the custody of the parent. [Footnotes om itted.] In In the Matter of the Guardianship of Williams, 254 Kan. 814, 818-26, 869 P.2d 661, 665-70 (1994), that court said: The Kansas c ourts have long applie d the best inte rests of the ch ild test in resolving custody disputes between two fit parents. On the other hand, it has long been the rule that the parental preference doctrine prevails when the dispute is between a parent and a third person, unless the parent is found to be unfit. The rule is succinctly stated . . . as follows: [A] parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody . . . is entitled to the custody of his children as against the grandparents . . . even though at the time . . . such grandpa rents or others are giving the children proper and suitable care an d have acquire d an atta chme nt for th em. [T]he court declared as unconstitutional a statutory provision which required the court to apply the best interests test instead of the parental preference doctrine in certain parent-nonparent custody disputes. ... [The natural mother] cannot be denied that right for the sole reason that a court determines and concludes that someone other than a natural parent migh t do a better job of raising the child, thus furthering his best interests. ... The best interests o f the child tes t, which is asserted here by [the thirdparty guardian], has long been the preferred standard to apply when the custody of minor children is at issue between the natural parents of the child or children. H oweve r, absent high ly unusual or extraordinary circumstances it has no application in determining whether a parent, not foun d to be unf it, is -69- entitled to custod y as again st a third- party non parent. Not only is the pa rental prefer ence doc trine one of lo ng standin g in Kansas, it is also the rule, in one form or another, in a majority of the jurisdictions in this country. [Emphasis added.] [Citations omitted.] [Some alteration added .] In In the Interest of M.M.L., 258 Kan. 254 , 900 P.2d 813 (19 95), the Supreme C ourt of Kansas, quoting at length from its 1981 case of Sheppard v. Sheppard, 230 Kan. 146, 630 P.2d 1121 (1981), stated: Appellant contends that K.S.A. 1980 Supp. 60-1610(b)(2) violates the due process cla use becau se it destroys the parental preference doctrine and allows a third party to take custody of a minor child even though the natural parent is fit. That is the situation before us: The co urt found the mothe r fit, but granted custody of the child to the grandparents, finding that such custody would be in the b est interests of the child. M.M.L., 258 Kan. at 263-64, 900 P.2d at 819 (quoting Sheppard, supra). The M.M.L. court reversed the district court s order, stating: We have little doubt that the Due Process Clause would be offended [i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children s best interest. M.M.L., supra (quoting Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 555, 54 L.Ed.2d 511, reh. denied 435 U.S. 918, 98 S.Ct. 1477, 55 L.E d.2d 511 (1978 )). It is clear under our decisions and those of the United States Supreme Court that a natural parent s right to the custody of his or her children is a fundamental right which may not be disturbed by the State or by third persons, absent a sh owing tha t the natural p arent is unfit. ... [The natural mother] cannot be denied that right for the sole reason that a court determines and concludes that someone other than a natural parent -70- might do a better job of raising the child, thus furthering his best interests. M.M.L., 258 Kan. at 254, 900 P.2d at 8191 (quoting Sheppard, supra). The M.M.L. court continued: [T]he welfare of children is always a matter of paramount concern, but the policy of the state proceeds on the theory that their welfare can best be attained by leaving them in the custody of the ir parents and seeing to it that the parents right thereto i s not inf ringed upon o r denied . This is the law of the land on the subject. And it never becomes a judicial question as to what is for the welfare and best interests o f children u ntil the exceptional case arises w here the parents are dead, or where they are unfit to be intrusted with the custody and rearing of their children and have forfeited this right because of breach of parental duty, or where the right has been prejudiced by the discord of the parents themse lves. The best interests of the child test, which is asserted here by [the child s guardian], has long bee n the preferred standard to apply when the custody of minor children is at issue between the natural parents of the child or child ren. However, absent highly unusual or extraordinary circumstances it has no application in determinin g wheth er a parent, n ot found to be unfit, is entitled to custody against a third-party nonparent. Id. at 266, 900 P.2d at 820 (citat ions om itted) (so me em phasis a dded). See also In the interest of D.B.S v. M.S., 20 Kan.App. 438, 452, 888 P.2d 875, 884 (1995), a paternity case that cited Williams, supra, saying On the one hand, it is clearly established that parental rights, not the child s best interests, c ontrol in disp utes betw een paren ts and non -parents where the pare nt is fit. The majority view is also consistent with the views of S outh Dakota. In the thirdparty custody and visitation case of In the Matter of the Guardianship of Sedelmeier, 491 N.W.2d 86, 87 (S.D . 1992), the S upreme C ourt of So uth Dak ota stated: In legal contests between a parent and a non-parent for the custody of -71- a child the threshold question is: Is the parent unfit to have custody of the child? The Cumbers [non-parents] attempted to establish that it would b e in the best interests o f [the child] to be in their custody. Without unfitness being established, there is no necess ity to look to th e best in terest of the child . [Alterations added.] Quoting from its previous case of Blow v. Lottman, 75 S.D.127, 59 N.W. 2d 825 (1953), the Sedelmeier court further opined: We cannot take the position that this finding of th e best interest o f said children carries an inference of the mother s unfitness. It is a false view of the law and of the issues involved to treat the action from the start as an equal contest between two conte nders for the child, and w ithout the preliminary determination against the parent s right to custody, to weigh the balance against the parent on a me re finding tha t it is for the best inte rests of the ch ild to be given to the other p arty. ... Since there was no clear showing of unfitness, the court cannot order visitation for an unrelated non-parent over the wishes of the mother. Sedelmeier, 491 N.W.2d at 88-89 (empha sis added). Similarly, in the 1998 case of Lukens v. Lukens, 1998 N.D. 224, 587 N.W.2d 141, 144 (1998), the Supreme Court of North Dakota restated the law of that jurisdiction in reference to third party attempts to obtain custody of the child of others. The Lukens court, citing to and quoting from its prior cases, stated: The court cannot award custody to a third party, rather than the natural parent under a b est interest of th e child test un less it first determines that exceptional circumstances exist to trigger the bes t-interest analysis. Intervenors contend c ourts shou ld simply app ly a best intere st standard to all custodial cases, regardless of who the parties are. We have rejected such argu ments sinc e . . . [1980]. W e decline the invitation to abandon the exceptional circumstances requirement before aw arding child custod y to a non parent. [Citatio n omitte d.] [Em phasis a dded.] -72- In Hoff v. Berg, 1999 N.D. 115, 595 N.W .2d 285, 291-92 (1 999), the Suprem e Court of North Dakota stated: We conclu de N.D .C.C. § 14-09 -05.1, as am ended in 1 993, is unconstitutional to the extent it require s courts to grant grandparents visitation rights with an unmarried minor unless visitation is found not to be in the child s best interests, and presumes visitation rights of grandparents are in a child s best interests, because it violates parents fundamental liberty interest in controlling the persons with whom their children may associate, w hich is protecte d by the d ue proc ess clau se of o ur state a nd fed eral con stitutions . In Cox v. Cox, 613 N.W.2d 516, 521-22 (N.D. 2000), the Supreme Court of North Dakota again reaffirmed its position in the majority camp even though the possibility of a psychological parent existed. The court there stated: A court cannot award cu stody to a third party, rather than to a natural parent, und er a best intere sts of the child test, unless it first determines that exceptional circumstan ces exist to trigger the best-intere sts analysis. Absent exceptional circumstances, the natural parent is entitled to custody of the child even though the third party may be able to offer more amenities. When a psychological parent and a natural parent each seek a court-ordered award of custody, the natural parent s paramount right to custody must prevail unless the court determ ines it is necess ary in the best inter ests of the child to award custody to the psychological parent to prevent serious detriment to the welfare of the child. [Cita tions om itted.] [E mpha sis adde d.] Just a few years later, the North D akota court further reiterated that eve n in a case where a psychological parent is involved, custody cannot be taken from a fit parent, except in order to avoid serious detriment to the child. In the case of In the Interest of D.P.O. v. N.H., 667 N.W.2d 590, 593-94 (N.D. 2003), it stated: After finding the maternal grandparents had established a psychological parent relationship with the child, the court properly applied the law in determining whether those exceptional circumstances required, in the child s -73- best interests, that she be plac ed with the maternal grandparents rather than one of her natural parents to prevent serious harm or detriment to the welfare of the child. The cou rt conclude d the evide nce did no t demons trate that Denise would suffer serious harm or detriment if she were placed in the custody of one of her natural pare nts rather than her psycholo gical paren ts. [Emp hasis added .] In the recent case of Toms v. Toms, 98 S.W.3d 140, 145 n.5 (Tenn. 2003), the Supreme Court of Tenn essee ackn owledg ed Tenn essee law in respect to third-party custody actions: In a contest between a parent an d a non-p arent, a parent cannot be deprived of the care and custody of a child unless there has been a finding of substantial harm to the child. Due process requires that a non-parent seeking custody of a child must s how su bstantial harm by clea r and co nvincin g evide nce. Only after this showing is made may a court engage in a general best interest of the child evaluation in making a determination of custody. [Citations omitted .] [Emphasis added.] One of the cases the Toms court cited in its footnote was Bond v. McKenzie, 896 S.W.2d 546, 548 (Tenn. 1995), where that court held: Therefore, in a contest between a parent and a non-parent, a parent cannot be deprived of the custody of a child unless there has been a finding, after notice required by due process, of substantial harm to the child. Only then may a court engage in a general best interest of the child evaluation in making a determination of custody. [Emphasis added.] In Petrosky v. Keene, 898 S.W.2d 726, 728 (Tenn. 1995), the Supreme Court of Tenness ee wrote: [I]n a contest be tween a p arent and a non-pare nt, a parent cannot be deprived of the custody of a child unless there has been a find ing . . . of substantial harm to the child . Only then may a court engage in a general best interest of the child e valuatio n in ma king a d etermin ation of custod y. The proof in this case supports the trial court s finding that the father -74- is not unfit to have cus tody, and that he has developed a substantial relationship with the child. It shows that the child is in no danger of substantial harm. The father, therefore, h as a fund amental inte rest in parenting the child which precludes a best interest determination of custody. [Altera ton add ed.] [E mpha sis adde d.] The Supreme Court of Tennessee stated in Hawk v. Hawk, 855 S.W.2d 573, 579-81 (Tenn. 1993), in ref erence to a grandpa rent visitation sta tute: We find, however, that without a substantial danger of harm to the child, a court may not constitutionally impose its own subjective notions of the best interests of the child when an intact, nuclear fa mily with fit, ma rried parents is involv ed. ... [N]either the legislature nor a court may properly intervene in parenting decisions absent significant harm to the child from those decisions. [Altera tion add ed.] It appears that the term substantial harm to the child used in Tennessee and perhaps in several other jurisdictions, is another way of stating extraordinary circumstances, or detrimental to the child which is more often used. Either usage in the various cases requires that there be a prior determination that such a circumstance exists, before a best interests of the c hild an alysis is app ropriate . With a cavea t we fo otnote, infra, in referenc e to failure of adoption cases, Oklahoma has also placed itself in the majority colu mn. The Suprem e Court of Oklaho ma stated in Wade v. Geren, 743 P.2d 1070, 1075 (Okla. 1987): But the [lower] court recognized that when the adoption decree had to be set aside it could not simply weigh o r compare households; absent a showing of unfitness the father as natural parent would be entitled to custody as against anyone else (alteration adde d). Previously, in Grover v. Phillips, 681 -75- P.2d 81, 83 (Okla. 1984), the court recognized that if the parent is deemed fit, custody with the parent is in the best interests of the child regardless of how much better off the child might be thought to be in the custody of third-party. Having determined that the natural father s home is a fit and proper home in which to raise the minor child, the preference accorded by law to the natural parent to the custody of his or her child determines that the best interests of the child will be served by awarding custody to the natural parent. In McDonald v. Wrigley, 870 P.2d 777 (Okla. 1994), the Supreme Court of Oklahoma, after citing to Haralson v. Haralson, 595 P.2d 443 (Okla. 1979), stated in a third-party case: To obtain custody in a divorce proceeding, even on a temporary basis as is sought here, over the objection of a parent, a grandparent must show the parents unfitness . . . . The unfitness may not be demonstrated by a mere comparison between what is offered by the competing parties . . . . McDonald, 870 P.2d at 781(citation omitted). In Haralson, that court stated: This Court has repeatedly held that to deprive a parent of the custody of his children in favor of a third person, the parent must be affirmatively, not comparatively, shown to be unfit. The mere fact that a child might be better cared for by a third person is not sufficient to justify taking a child from its parent. In order for third persons to deprive a parent of custody of his children, some inability on the part of the parent to provide for the child s ordinary comfort, intellectual or moral development must be shown. Evidence of unfitness must be clear and conclusive and the necessity for depriving the parent of custody must be shown to be imperative. [34] 34 In Oklahoma there are at least two failure of adoption cases in which somewhat different language is used. The cases both relate to statutes seeming to create a best interests test based upon the fact that the adoptive parents are perceived to have acquired rights that other third parties do not acquire. In In re Baby Girl L., 51 P.3d 544, 548, 552, (continued...) -76- Haralson, 595 P.2d at 445 (emphasis added) (footnote added) (footnote omitted). With a caveat distinguishing cases where an adverse party [third-party] has had 34 (...continued) 557 (Okla. 2002), the court stated: This is a custody dispute between a married couple desiring to adopt, who have had custody of an infant child since a month after her birth, and the child s unmarried natural father, who has sought custody during that time. At issue is whether the trial court should have, once the adoption failed, conducted a hearing to determine the child s best interests in placing custody. We conclude that a recently enacted [adoption] statute requires such a hearing, and that the trial court erred in not allowing the putative adoptive parents to offer evidence showing the likelihood of sever psychological harm to the child in the event of a custody transfer to the natural father. ... We conclude that the child and adoptive parents do not possess a Due Process right to a continued adoptive family relationship after a failed adoption merely because of the judicial creation of that temporary relationship. We thus need not engage in a balancing of constitutionally protected interests on this claim by the [proposed] adoptive parents. ... The trial court did not allow a statutorily-required best-interests hearing, or allow the adoptive parents to introduce evidence showing the likelihood of serious harm to the child by a change in the child s custody, and the order of the trial court must be reversed. We caution . . . that merely showing on remand that the child has a strong relationship with the adoptive parents or might be better off if left in their custody based on some type of comparative fitness test or balancing is not enough to show serious psychological harm. Our ruling here should not be interpreted as giving judicial imprimatur to some form of subtle social engineering in custody cases involving third parties and we are not sanctioning the reallocation of children merely because putative adoptive parents might be better parents than a biological father.. . . Simply, the standard to be applied on remand is not one of comparative fitness nor is it one that may be used to victimize poor (or otherwise arguably disadvantaged) biological parents on the basis of some well-meaning, but misguided, view that certain adoptive custodians might possibly be better parents than the child s biological parents. [Alterations added.] [Citations omitted.] -77- custody of a child for an appreciable period of time, in this case over four years. . . . the Supreme Court of Idaho in Stockwell v. Stockwell, 116 Idaho 297, 299, 775 P.2d 611, 613 (1989), has utilized the majority approach. There the court stated, The paramount consideration in any dispute involving the custody and care of a minor child is the child s best interests. But it immediately adopted the majority view in respect to third-party disputes. In custody disputes between a non-parent (i.e., an individual who is neither legal nor natural parent) and a natural parent, Idaho courts apply a presumption that a natural parent should have custody as opposed to other lineal or collateral relatives or interested parties. This presumption operates to preclude consideration of the bests interests of the child unless the nonparent demonstrates either that the natural parent has abandoned the child, that the natural parent is unfit or that the child has been in the nonparent s custody for an appreciable period of time. [The Idaho court determined that four years was an appreciable period of time.] [Alteration added.] [Emphasis added.] Prior to 1996, the best interest test was essentially the exclusive test by virtue of statutes in all child custody matters in the state of Montana. In that year the Supreme Court of Montana, in the third-party custody case of In re A.R.A., 277 Mont. 66, 71, 919 P.2d 388, 391 (1996), found the pertinent state statute unconstitutional and overruled its prior cases. The court declared: [W]e have held that it was no t error for a d istrict court to apply the best interest of the child test rather than the dependency, abuse, and neglect test as set forth in Doney [35] to determine custody between the natural father and the maternal grandm other. Brost v. G lasgow , (1982), 200 Mont. 194, 199, 651 P.2d 32,34. In Brost, we held that the 1979 Legislature, in § 40-4-221, MCA, 35 In re Doney, 174 Mont. 282, 570 P.2d 575 (1977). -78- changed the test to be u sed in determ ining custo dy when a custodial parent dies. Brost, 651 P.2d at 34. We again refused to require the stricter Doney standard in favor of the best interest of the child test in In re C.G. (1987), 228 Mont. 118, 740 P.2d 1139. Howev er, in Aschenbrenner[36] and Henderson v. Henderson (1977), 174 Mon t. 1, 568 P.2d 177, we held that the Uniform Marriage and Divorce Act (Title 40, Chapters 1 and 4) does not diminish the constitutio nally protected rights of a natural parent to the custody of his or her child. It follows that an amendm ent to the Uniform Marriage and D ivorce Act, however limited, cannot infringe upon those same rights. Therefore, the use of the best interest of the child test, as referred to in § 40-4-221, MCA, is improper in that any showing that a nonparent may be able to provide a better environment than can a natural parent is irrelevant to the question of custod y between th e two in view of the constitutional rights of a parent to custody. Accordingly, § 40-4221, MCA, is unconstitutional to the extent that it allows the granting of a §221 petition prior to the termination of the natural parent s constitutional rights. We therefore overrule Brost and In re C.G. in their use of the best interest of the child test to award custody to a nonparent over a natural parent absent a finding of abuse and neglect or depen dency. [ Alterati on add ed.] [Footnotes adde d.] [Some citations om itted.] In the third -party cas e, In re G uardia nship o f Ashleig h R., 132 N.M. 772, 778-79, 55 P.3d 984, 990-91 (2002), the Supreme Court of New Mexico held: The focus of the hearings, however, was which of the parties would be the better custodian for the children. Th e district court f ound that it w ould be in the bes t interest o f the ch ildren to remain with G randpa rents. ... Upon a finding of parental unfitness or extraordinary circumstances, the district court can then determine what custody arrangement would be in the comparative best interest of the children. Absent such findings, however, the comparative best interest of the child standa rd does no t apply in proceedings between parents an d nonpa rents. The comparative best interest o f the child standard essentially compares the merits of the prospective custodians, and awards custody to the better of the two. If only a showing of the comparative best inte rest of th e child w ere requ ired, 36 In re Aschenbrenner, 182 Mont. 540, 597 P.2d 1156 (1979). -79- a child might be taken away from the natural parent and given to a thir d party sim ply by showing th at a third party cou ld provide the better things in life for the child and therefore the best interest of the child would be satisfied by being placed with a th ird party. The district court in this case applied the comparative best interest of the child standard without an express finding that Mother was unfit or that there were extraordinary circumstances justifying the application of that standa rd. This in itself w as error . [Cita tions om itted.] [E mpha sis adde d.] The Supreme Court of North Carolina placed that state squarely with the majority of the states when it held in Owenby v. Young, 357 N.C. 142, 144-46, 579 S.E.2d 264, 266-68 (2003), that: We acknowledged the importance of this liberty inter est nearly a decade ago when this C ourt held: absent a finding that pa rents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody, care, and control of their children must prevail. . . . Therefore , unless a natu ral parent s conduct has been inconsistent with his or h er constitution ally protected status, application of the best interest of the child standard in a custody dispute with a nonparent offends the Due Process Clause of the United States Constitution. Furthermore, the protected right [of pa rents to the custody of their children ] is irrelevant in a custody proceeding between two natural parents, whether biological or adoptive, or between two parties who are not natu ral parents [third-parties]. In such instances, the trial court must determine custody using the best intere st of the child test. ... As we stressed in [a prior case], the Due Process Clause of the Fourteenth Amendment ensures that the governm ent does n ot imperm issibly infringe upon a natural parent s paramount right to custody solely to obtain a better result fo r the chil d. Until , and un less, the movant establishes by clear and convincing evidence that a natural parent s b ehav ior, v iewed cu mulative ly, has been inco nsistent with his or her protected status, the best interest of the child test is simply not implicated. [Alterations added .] [Citatio ns omi tted.] [Emphasis ad ded.] In an earlie r case, Price v . How ard, 346 N.C. 68, 79, 484 S.E.2d 528, 534 (1997), the same -80- court had s poken sim ilarly, stressing the resp onsibilities of n atural paren ts, yet stated: If a natural pa rent s cond uct has no t been inconsistent with his or her constitutiona lly protected status, application of the best interest of the child standard in a custody dispute with a nonparent would offend the Due Process Clause. However, conduct inconsistent with the parent s protected status, which need not ris e to the statuto ry level warran ting termination of parental rights would result in application of the best interest of the child test without offen ding th e Due Proces s Claus e. [Ci tations o mitted.] See also Pe tersen v . Roge rs, 337 N.C. 397, 404, 445 S.E.2d 901, 905 (N.C. 1994) (citing Best v. Best, 81 N.C.A pp. 337, 34 4 S.E.2d 3 63 (1986 )), where tha t court had p reviously noted: [P]laintiffs [the third-parties] argue that North Carolina recognizes the right of a minor child to be placed in the custody of the person or entity which will meet that child s best interests. Further, plaintiffs argue that as to parents custodial rights, our law recognizes no more than a higher evidentiary standard which must apply in custody disputes between parents and those who are not natural parents; but the welfare of the child is paramount to all common law preferential rights of the pare nts. In light of Flores, Stanley, and the principles enunciated in Jolly and Hughes, we explicitly reject these arguments. We hold that absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of th eir children must prevail. Language to the contrary in Best v. B est, 81 N.C.App. at 342, 344 S.E.2d at 367, is hereby express ly disavowed. [Alterations ad ded.] But see Price v. Howard, 346 N.C. 68, 484 S.E.2d 52 8 (1997), where the Supreme Court of North Carolina remanded the case to the trial court for it to determine whether the natural parent h ad acte d incon sistently w ith her co nstitution ally protec ted inter ests. Add ition ally, there are several North Carolina intermediate appellate that are consistent with Owe nby, su pra. In a pair of 2 002 case s, the interme diate appella te court in -81- North Carolina also made the distinction tha t the best intere st standard is in appropriate when third-parties are attempting to take cu stody aw ay from t he natu ral pare nts. In McD uffie v. Mitchell, 155 N.C.App. 587, 591, 573 S.E.2d 606, 608-09 (2002), the court stated: Our courts recognize the general principle tha t because o f the strength and importanc e of the pa rents constitu tionally protected interests, those interests must prevail against a third party unless the court finds that the parents are unfit or have neg lected the welfare of the ir children. . . . Such allegations fall short of establishing that defendant acted in a manner inconsistent with his protected status. A best interests analysis is not appropriate absent such a finding. [Cita tion om itted.] [E mpha sis adde d.] In Grindstaff v. Byers, 152 N.C.App. 288, 298, 567 S.E.2d 429, 4 35 (2002 ), in a dispute between a natural pa rent and third parties, whe re the natura l parent wa s not foun d to be unf it, the court said : We hold that there are no findings of fact that support the conclusion [of unfitness], and that there is no eviden ce in the record, that defendant acted inconsistent with his constitutionally protected status. The trial court erred by performing a best interest analysis as between defendant and plaintiff. The fact that the third party is able to offer the minor child[ren] a higher standard of living does not overcome a natural parent s paramount interest in the custody and control of the child[ren]. [Citations omitted .] [Some alteration added.] The Supreme C ourt of Kentucky, opined in Moore v. Asen te, 110 S.W.3d 336, 358-60 (Ky. 2003), a f ailure of ad option case , as follows : Kentucky s appellate courts have recognized not only that parents of a child have a statutorily granted superior right to its care and custody, but also that parents hav e fundam ental, basic an d constitution ally protected rig hts to raise their own children. A nd, becau se we w ould nece ssarily abrogate those rights if we were to resolv e custody disputes on a best interest of the child standard after allowing a nonparent to obtain standing by mere possession of the child, we hold that physical custody for the purposes of -82- establishing standing requires more than actual possession and control of a child at the time a custody action is commenced i.e., a showing that the [natural] parent has somehow voluntarily and indefinitely relinquished custody of a ch ild. ... Custody contests between a parent and a nonpar ent who does not f all within the statutory rule on de facto custodians [37] are determined under a standard requiring the nonparent to prove that the case falls within one of two exceptions to parental entitlement to custody. One exception to the parent s superior right to custody arises if the parent is shown to be unfit by clear and convincing evidence. A second exception arises if the paren t has waiv ed his or her su perior rig ht to cus tody. Under the first exception , the nonpa rent must first show by clear and convincing evidence that the parent has engaged in conduct similar to activity that could result in the termination of parenta l rights b y the state. Only after making such a threshold showing would th e court dete rmine cus tody in accordance with a child s best interest. Under the second excep tion, however, if a waiver has been shown by clear and convincing evidence, the trial court shall determ ine cus tody . . . based on the best interest of the child. [Alteration added .] [Citations o mitted.] [Em phasis added.] [Footnote added.] [Footnotes omitted .] In a case primarily conc erned w ith the jurisdiction of certain co urts to termina te parental rights, the Supreme Court of Rhode Island in Carr v . Prade r, 725 A.2d 29 1 (R.I. 1999), nevertheless stated, quoting from a statute, that, (parental rights may be terminated only upon a show ing of, inter alia , wilful neglect, abandonment, desertion, or parental unfitness demonstrated by cruel or abusive nature or chronic substance abuse ). Id. at 294. 37 Kentucky had a statute that set up the criteria for becoming a de facto custodian. If a party met the conditions for such status he was afforded, in so far as custody disputes were concerned, the status of a natural parent and the proper standard in such cases is the best interest of the child standard. See Ky. Rev. Stat. Ann. § 403.270. -83- The Supreme Judicial Court of Massachusetts, in a termination case, opined in Custo dy of a M inor, 389 M ass. 755, 76 5-68, 452 N.E.2d 4 83, 489 (1 983), that: In furtherance of the policy of the Commonwealth, and recognizing that parents have a natural right of custody and children need care and protection, we have adopted the principle that parental unfitness must be persuasive ly shown in order to justify removal of a child from the custody of its parent. [T]he unfitness standard must be applied whenever the State seeks to terminate parents rights to the custody of their minor children, whether the State proceeds under the care and protection statute, the guardianship statute, or the adoption statute. Custody is not to be transferred from the natural parent simply becau se another p rospective c ustodian is th ought to be better qualified. A comparison of the advantage the prospective custodian may offer to the child w ith those that m ay be offere d by the natura l parents is inappr opriate. [Citatio ns omi tted.] In Guardianship of Clyde, 44 Mass.Ap p.Ct. 767, 694 N.E .2d 21 (1998), that court stated: The resolution of any custody dispute involving a natural parent necessarily begins with the premise that parents have a natural right to the custody of their children. The presumption at common law was that a child s welfare is best served in the care and custody of [his] pa rents. The righ ts to conceive and to raise one s c hildren [are ] essential . . . basic c ivil rights of man . . . far more precious . . . than property rights. . . . The inter est of paren ts in their relationship with their children has been deemed fundamental and constitutionally protected. Clyde, 44 Mass.App.Ct. at 772, 694 N.E.2d at 25 (alterations added) (citations omitted). The Clyde court continued: The critical question in cases such as this one, where a biological parent seeks to rem ove his ch ild from the custody of leg al guardian s, is whether the natural parent [] [is] currently fit to further the welfare and best interests of the child. In the context of guardianship proceedings, [e]vidence that is at least clear and convincing is constitutionally required for a finding of parental unfitness. ( In recognition of the constitutionally protected -84- interest of parents in maintaining the natural bond w ith their children, a judge must find by clear and con vincing evid ence that a parent is cu rrently unfit to further the child s best interests when irrevocably removing children from their biological p arents). In m aking this determination, [n]either the parental fitness test n or the best interests of the child test [can be] applied to the exclusion of the other. Both tests reflect different degrees of empha sis on the same factors and, therefore, are not separate and distinct but cognate and connected. Id. at 722-73 , 694 N.E .2d at 25-26 (citations om itted) (emphasis added) (some alterations added). In Guardianship of Yushiko, 50 Mass.App.Ct. 157, 735 N.E.2d 1260 (2000) , the court n oted, Nevertheless, in deciding this issue, the judge focused chiefly on the best interests of the child. . . . The judge s reasoning that the child s station in life would improve if she remained with her guardians is also problematic. That the guardians can do more for the child th an her father or that the father s income is less than that of the guardians is of little consequence in considering what is in the child s best interests. Of greater import, howev er, is the judge s failure to recognize that the best interests of the child cannot be determined separate and apart from a determination of the current fitness of the father. The resolution of any custody dispute involving a . . . parent necessarily begins with the premise that parents have a natural right to the custody of their children. That right is not absolute for the State, as parens p atriae, may interfe re with that right to protect a child from serous physical or emotional harm. Thus, the judge was required to consider the fitness of the father in determining what was in the best interest of the child. ... Fin ally, the comparison of the life the father can offer his child with the better life the gua rdians can p rovide is inap propriate fo r it does not cle arly recognize the father s presumptive right to raise his child. Id. at 158-60, 735 N .E.2d at 1262-63 (citations om itted).38 38 We include Massachusetts in the majority because of the Massachusetts Supreme Judicial Court case. -85- The Court of Appeals of Minnesota, in In re the Welfare of P.L.C. and D.L.C., 384 N.W.2d 222, 225 (M inn.App. 1986), opined in a parent/grandparent dispute over guardianship: [T]here is no conflict between the two standards. The first p art of the rule speaks in terms of entitle[m ent] to custody, or parental rights, and the second in terms of the best interests of the child. The presumption of parental fitness, however, is not only an acknowledgment of parental rights; it has long been held to be a presu mption tha t the best interests of the child are served by parental custody. The Supreme Cou rt of Mississippi recently opined in In re C ustody of M.A .G., 859 So.2d 10 01, 1004 (Miss. 200 3), that: As far back as 1929 , this Court has held that when one parent dies, the other parent has a right to the child s custody until there has been abandonment or the living parent has forfeited th at right by imm oral condu ct. Mo re recent ly, this Court has ruled unfitness may be shown by (1) abandoning the child; (2) behaving so immorally as to be detrim ental to the ch ild; or (3) being unfit mentally or otherwise to have custody of the ch ild. Despite A.G. s contention otherwise, the Chan cellor clearly fou nd him to b e an unfit parent. Only after this determination had been made, did the Chancellor follow the Albright factors [39] to de cide M.A .G. s bes t inte rest. . . . Clearly, however, a finding of unfitness is necessary to award custody to a third party against a natural parent and must be done before any analysis using the Albright factors to determine the best interest of the child. [C itations omitted .] [Emph asis added .] [Footno te added .] 39 Albright v. Albright, 437 So.2d 1003 (Miss. 1983), was a custody dispute between two natural parents in which the father was challenging the tender age doctrine in Georgia which created a maternal presumption, i.e., that it was in the best interest of the child to have custody with his mother. In discussing that issue, the court reaffirmed its position that the best interest of the child controlled. We presume that the Mississippi court was modifying the best interest standard in third-party cases such as M.A.G, supra. As we have indicated the best interest provision is generally only initially applicable in contests between natural parents or in contests where all parties are third parties. -86- In 1992, citing to a previous ca se, the Supreme C ourt of Mississippi, in Westbrook v. Oglesbee, 606 So.2d 1142 (Miss. 1992), had stated: In such con test [i.e., custody disputes between parents and grandparents] it is presume d that the be st interests of the child will be preserved by it remaining with its paren ts or pare nt. In order to o vercom e this presumption there must be a clear showing that the parent has (1) abandoned the child, or (2) the c onduct of th e parent is so immoral to be detrimen tal to the child, or (3) the parent is unfit mentally or otherwise to have the custody of his or her child. Id. at 1144-45 (quoting Rodgers v. Rodgers, 274 S o.2d 67 1, 673 ( Miss. 1 973)). In Drummond v. Fulton Coun ty Dep t. of Fam ily and C hildren Svs., 237 Ga. 449, 228 S.E.2d 839 (1976), the Supreme Court of Georgia wrote: The Georgia law, however, has not followed this pattern. The best interests of the child test is used only between pa rents who both have equal rights to the child. Where the dispute is between a natural parent and a third party, on the other hand, the court must award the custody of the child to the parent unless he has lost his parental prerogatives . . . . or is unfit. Drummond, 237 Ga. at 451, 228 S.E.2d at 842 (citations om itted). In Larson v . Gamb rell, 157 Ga.App. 193, 276 S.E.2d 686 (1981), that court said: As between parents w ith equal rights to custody the ch ild s best interes ts is the only determinative factor since the law presumes that the welfare and best interest of a child w ill best be serve d, except in e xtraordinary ca ses, by his being in the custody of his own parent. However, an award of child custody to a third party must be based upon more than the best interests of the child because such an award is in derogation of the right to custody of th e parent, in whose custody the law presume s the child s b est interest will be served. Thus, it is only when the present unfitness of the parent is established by clear and convincing evidence that the trial judge is authorized to consider an award of custod y to third pa rties. -87- Id. at 194, 276 S.E.2d at 688 (citation omitted). The Larson court contin ued: The law contemplates that one of the natural parents will be awarded custody of the child unless the p resent unf itness of the p arents is established by clear and convin cing ev idence . . . . Only then is the trial court autho rized to consider an award of custody to third parties. Id. at 194, 276 S.E.2d at 689 (emphasis added) (quoting Childs v. Childs, 237 Ga. 177, 178, 227 S.E.2d 49, 50 (1976)). [40] 40 In Clark v. Wade, 273 Ga. 587, 544 S.E.2d 99 (2001), the Supreme Court of Georgia, at first blush, appears to have modified Childs, by adopting a hybrid standard: Unlike the grandparent visitation cases, however, the custody cases in this appeal do not involve a third party seeking to intrude upon an established parent-child custodial relationship. Instead, they involve a biological parent seeking to gain custody from a third party who has been responsible for the daily care of the child and already has established a family unit for the child. Thus, the relationsh ip among the parent, child, and third -party relative differs in these custody cases from the relationship among the parties in Troxel and other grandparent visitation cases. Applying the Court s distinction in the unwed father cases, more than a biological link exists between the child and noncustodial father, but the relationship d oes not rise to the level of a daily association. ... Aligned against the parents constitutional right is the child s constitutional right to protection of his or her person and the state s compelling interest in protecting the welfare of children. [Although] in most instan ces it will be found that the legal right of the parent and the interest of the child are the same[, i]f through misconduct or other circumstances it appears that the case is exceptional, and that the w elfare of the child requires that it should be separated even from its parent, the parens patriae mu st protect the h elpless and the innoce nt. ... Applying a narrowing construction that is consistent with both the legislature s intent and Brooks v. Parkerson, [265 Ga. 587, 454 S.E.2d 769 (1995)] we interpret the best-interest-of-the-child standard in OCGA §§ 197-1(b.1) [enacted in 1996 an d govern ing custod y disputes between a (continued...) -88- In a post-Troxel case, the interm ediate appe llate court in V irginia held th at: Custody and visitation disputes between two fit parents involve one parent s fundamental right pitted against the other parent s fu ndamen tal right. The discretion afforded trial courts under the b est-interests test ref lects a finely balanced judicial response to this parental deadlock. A very different kind of legal contest, however, exists in a dispute between a fit parent and a nonparent. In this latter situation, the best-interests test should be applied only if the trial court first finds an actual harm to the child s health or welfare withou t such v isitation. ... Absent a showing of actual harm to the child, the con stitutional liberty interests of fit parents take precedence over the best interests of the child . As a result, a court may not impose its subjective notions of best interests of the child in derogation of parental rights protected by the Constitution. A vague generalization about the positive influence of non-parent visitation cannot satisfy the actual-harm requirement. Griffin v. Griffin , 41 Va.App. 77, 83-85, 581 S.E.2d 899, 902-03 (2003) (citations omitted) (emphasis added ). The Florida Supreme Court in Beagle v. Bea gle, 678 So.2 d 1271 (F la. 1996), in respect to a visitation statute, opined: We have stated that this Court and others have recognized a longstanding and fundamental liberty interest of parents in determining the care and upbringing of their children free from the heavy hand of government 40 (...continued) biological parent and a limited number of third parties who are related to the child ] and as req uiring the third party to show that parental custody would harm the child to rebut the statutory presumption in favor of the parent. Once this presumption is overcome, [but not before] the third party must show that an award o f custody to him or her will best promote the child s health, welfare, and ha ppines s. Clark, 273 Ga. at 596-9 8, 544 S.E.2d at 106-07 (citation omitted) (emphasis added) (footnotes omitted) (som e alterations added). -89- paternalism. The fundamental liberty interest in parenting is protected by both the Florid a and fed eral constitution s. In Florida, it is sp ecifically protected by our privacy provision. Certainly the imposition, by the State, of grandparental visitation rights implicates the privacy rights of the Florida Cons titution. ... Based upon the privacy provision in the Florida Constitution , we hold that the State may not intrude upon the parents fundamental right to rais e their children except in cases wh ere the child is threatened with harm. While it may be argued that harm or detriment is always an element of a best interest analysis, we must join our sister courts in Tennessee and Georgia in ruling that a best interest test without an explicit requirement of harm cannot pass constitutional muster in this specific context. In addressing the subjective nature of a best interest analysis in the absence of demonstrable harm, the Supreme Court of Tennessee stated: The trial court in this case engaged in the presumptive analysis we seek to avoid. . . . Without finding that the paren ts were unfit or that a dissolving marriage between the parents had brought the matter of child custody before the court, the court imposed its own no tion of the c hildren s be st interests over the shared opinion o f these pare nts, stripping th em of the ir right to contro l in paren ting dec isions. Hawk v. Hawk, 855 S .W.2d 573, 58 2 (Ten n. 1993 ). Then, the Supreme C ourt of Georgia succinctly clarified the difference between a mere best interest analysis and the requirement that a harm be demonstrated: Howeve r, even assuming grandparent visitation promotes the health and welfare of the child, the state may only impose that visitation over the parents objections on a showing that failing to do so w ould be ha rmful to the child. It is irrelevan t, to this constitutional analysis, that it might in many instances be better or desirable for a child to maintain contact with a grandparent. Brooks [v. Parkerson], 454 S.E.2 d [769,] 7 73-74 [(G a. 1995)] (f ootnote omitted). We agree with this reasoning. Without a finding of harm, w e are unable to conc lude tha t the Stat e dem onstrate s a com pelling i nterest. Beagle, 678 So.2d at 1275 -77 (alterations added). The Florida Supreme Court in In re Guar diansh ip of D.A . McW ., 460 So.2d 368, 370 -90- (Fla. 1984), stated, In [a prior case], we h eld that in such a circumstance [third-party cases], custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child (alterations added) (citations omitted). The intermediate appellate court of Florida has also relatively recently discussed the issue, further explaining the position that Florida has taken by noting positions in that state that appear to be consiste nt with the ma jority view . In Hammond v. How ard, 828 So.2d 476, 477-78 (Fla.App. 2002) , the court stated, The best interest test, which generally governs custody disputes between two pa rents, is n ot the co rrect stan dard eith er. See [In re D.A. McW., supra] (affirming that the best interests test is not the proper legal standard for determining custody between a natural pare nt and a third party) . . . . (citations omitted). In In the Marr iage of M atzen, 600 So.2d 487, 489-90 (Fla.App.1992), the court said: More importantly, Florida law does not permit a custody determination, under the instant facts [contest with a third-party], to be based merely on what one party can provide financially, spiritually, educationally or otherwise, relative to the other pa rty. It is not enough for appellees [grandparents] to contend that they are more m ature or that th ey can better provide for the children s educational needs or re ligious instruc tion. . . . [O]nce the father s a bility reaches adequac y, his legal right sho uld not be overcome by the fact that the respondents offerings may be mo re adequa te than his, or th at they man continually out-do him , at least in mate rial matters. Instea d the focu s is necess arily on the parent. [Alte ration ad ded.] [C itation o mitted.] In a previo us Flor ida case , Daug harty v . Daug harty, 571 S o.2d 85 , 86 (Fla.App. 1990) the court stated: The concern we h ave in this case is whether the proper legal standard was applied. . . . The stated finding that the best interests of the children would be served by awarding custody to the grandmother implies that the best -91- interest standard was applied. The best interest standard is applied in a dispute between two parents where both are f it and have equal rights to custody. In the instant case, where the custody dispute is between the parents and a third perso n, the rights of the parents a re paramo unt unless there is a showing that the parents are unfit or that, for some substantial reason, custody in either or both of the parents would be detrimental to the child s w elfare. [Citation omitted.] An intermediate appellate court in Florida had previously explained that State s position in a custody dis pute betw een a natu ral father an d the maternal grandparents. In Leonard v. Myers , 553 So.2d 291(Fla.App. 1989), that court stated: Courts of this state hold that a natural parent should be denied custody of his child only where it is demonstrated that such custody will be detrimental to the welfare of the child or that the parent is disabled from exercising custody. While the best interests of the child is the only test in a custody dispute between two parents, where the dispute is between a parent and a third-party, the court must consider the right of a natural parent to enjoy the custody, fellowship, and companionship of his offspring. There has been no finding, nor is there evidence to support a finding that the appellant is unfit or that his custody would in any way be detrimental to the welfare of the child. Id. at 292 (citations omitted). Intermedia te appellate courts in Indiana have also commented on the correct ana lysis in cases of guard ianship involving grandparents and natural parents. In Peterson v. Riley, 597 N.E.2d 9 95, 997 (In d.App. 19 92), that cou rt stated: W hile Indiana courts can award custody of a child to someone other than the parents, such aw ards usually are made on ly following a determin ation that the p arents are either unfit or hav e all but aban doned the child to the care of that third person. This position reflected the determination of a previous Indiana intermediate appellate court in the case of In re Custody of McGuire, 487 N.E.2d 457 -92- (Ind.App. 1985): We are not here confronted with a custody dispute between two parents. In such a case, each parent has a n equal righ t to custody and there is no presumption favoring either parent. In this sense, parents are on par with one another and the seminal issue is the best interest of the child. On the other hand, in a custody dispute between a parent and a third party, such as we have here, the focus is significantly different because the p arties are not on par. Although the child s best interest is still of great importance, it is presumed that it is in the best interest of the child to be placed in the custody of the parent. Consequently, a nonparent who seeks to displace the parent as custodian bears the burden of overcoming the parent s presumptively superior right to custody. This burden has been described to require a showing, by clear and cogent evidence, that the parent is unfit or has acquiesced in or voluntarily relinquished custody to the third party for such a long period of time that the affections of the child and the third party have become so interwoven that to sever them would seriously mar and endanger the future happiness of the child. McGuire, 487 N.E.2d at 46 0 (citations omitted). The intermediate appellate co urt in Utah s imilarly opined in Duncan v. Howard , 918 P.2d 888, 892 (Uta hAp p. 19 96): Th eref ore, o nly after this [parenta l] presump tion is appropriate ly rebutted can [the grandparents], who are not [the child s] parents, successfu lly show that it would be otherw ise in [the ch ild s] best interes t to remain in their custody (alterations added ). See also Kishpaugh v. Kishpaugh, 745 P.2d 1248, 1251 (Utah 1987) ( Under Hutchison, therefore, a trial court may base a custody award on its own determination of the best interests of the child only if it finds all three enumerated characteristics lacking. (emphasis added)). T here are cases in Utah , Henderson v. Henderson, 649 P.2d 38 (Utah 1982), that, like Maryland in Ross v. Hoffman, supra, start out saying that the best intere sts of the child controls, but then insert a proviso that it only applies -93- if the parents are unfit, extraordinary circumstances exist or the natural parents have forfeited their rights to pa rent. D. Holding The best inter ests o f the child standard is, ax iomatica lly, of a different nature than a parent s fundam ental constitu tional right. Moreo ver, the best in terests of the child standard in third-party cases is not simply an adding of the p luses offered by one p arty over another. Were that so, any third party who offered a b etter neighborhood, better scho oling, more financial capability, or mo re stability would consistently prev ail in obtaining c ustody in spite of a fit natu ral pare nt s con stitutiona l right to p arent. Our case law does not allow for such a result that dilutes a parent s co nstitutional righ t to rear his or her child based merely upon such considerations.41 Quite simply, the non-constitutional best interests of the child standard, absent extraordinary (i.e., exceptional) circumstances, does not override a parent s 41 In the case of In re Adoption/Guardianship Nos. J9610436 and J9711031, 368 Md. 666, 796 A.2d 778 (2002), this Court reversed a circuit court s determination that the best interests of the children warranted termination of the parental rights of a father with mental limitations. We stated: [F]undamental constitutional rights, i.e., the child rearing rights at issue here, can only be completely terminated upon the clearest and most convincing evidence that the parent, however poor, uneducated, or disabled, cannot and will not, even with proper assistance, be able to sufficiently parent his children in the reasonable future. In termination cases, the best interests analysis should not be automatically interpreted to be a search for a perfect, or more perfect, or even a better situation for any particular child. Life is not perfect. Children are born into different circumstances some into wealth and other advantage, some not. Id. at 699-700, 796 A.2d at 797-98 (alteration added). -94- fundamental constitutional right to raise his or her child when the case is betw een a fit pare nt, to whom the funda mental pa rental right is inherent, and a third party who does not possess such constitutionally-protected parental rights. In cases between fit natural par ents who bo th have the funda mental co nstitutional righ ts to parent, the best interests o f the child w ill be the ultimate, determinative factor. Shurupo ff, 372 Md. at 662, 814 A.2d at 55 7. In respect to third-party custody disputes, we shall adopt for Maryland, if we have not already done so, the majority position. In the balancing of court-created or s tatutorily-c reated standa rds, such as the best in terest of the c hild test, with fundam ental constitu tional rights, in p rivate custody actions involving private third-parties where the parents are fit, absent extraordinary (i.e., exception al) circumsta nces, the co nstitutional righ t is the ultimate determinative factor; and only if the parents are unfit or extraordinary circumstances exist is the best interest of the child test to be considered, any contrary comment in Shuru poff, or other of our cases, notwithstanding. E. Factors for a Finding of Excep tional Circumstances In support of its holding in respect to the case sub judice, the Circuit Court for H arford County examined the standards and guidelines that generate exceptional circumstances and found their application warranted placing custody with the maternal grand parents. In Hoffman, 280 Md. at 191, 372 A.2d at 593, we first aggregated these factors from a survey of this Court s earlier case law, and later as to ex traordinary circu mstances , affirmed their application in Shurupo ff, 372 Md. at 646, 814 A.2d at 548. We stated in Ross v. Hoffman: -95- The factors which emerge from our prior decisions which may be of probative value in determining the existence of exceptional circumstances include the [1] 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 em otional effe ct on the ch ild 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 th e third party custodian, [6] the intensity and genuineness of the parent s desire to have the child, [7] the stability and certainty as to the child s future in the custody of the parent. Hoffman, 280 Md. at 191, 372 Md. at 593 (alterations added). The need to find exceptional circumstances is derived from the belief that extreme care must be exercised in determining a custody plac ement oth er than w ith a fit parent. The circuit court examined each of the Hoffman guidelines in turn, and, in its opinion, found Mr. M cDerm ott s relationship with Patrick to be wanting, p articularly in relation to his absences from the child s life while at sea. The circuit court presented the follow ing summa ry in its Septemb er 2003 m emorand um opin ion, which stated, in releva nt part: 1. The length of time the child has been away from the biological parent. Patrick as been in the custody of his grandparents since February 13, 2002 pursuant to an Order by consent granting temporary joint legal custody to the Doughertys and the McDerm otts, with primary residence to the Doughertys. Notwithstanding th e court s order, Mr. McDermott had de facto custody of Patrick from August 2002 until December 2002, at which time he returned to sea duty. Patrick has also spent considerable time with his father during the summer of 2003. As previously noted, there have been several other periods of time in wh ich Patrick w as in the custody of his grandp arents or his mother, most being p eriods of time that M r. McDermott was not residing in the State of Maryland but was pursuing his occupation as a merchant seaman. When Mr. McDermott has been present in Maryland, he has had regular and frequent contact with Patrick. 2. The age of the child when care was assu med by the third par ty. Patrick is now eight years old; he was six years old when the temporary -96- custody order granting joint custody to the D oughertys and the M cDermotts was signed on in February 2002. From May 2001 through January 2002, Patrick was in the custody of his [mother] Ms. Dougherty, and prior thereto, in the custody of his father when he was not a t sea. Essentially, Patrick has moved around quite a bit since he w as born. H e has lived w ith both pare nts at different times, and som etimes with the Do ughertys, and his primary caretakers at one time or another we re not necessarily those persons w ho were named as such in the various, applicable court orders. 3. The possible emotional effect on the child of a change in custody. It is clear from all testimony that P atrick has stro ng emotio nal attachm ents to all members of his family, both parents and grandparents. [Patrick s courtappointed attorney] testified that Patrick is doing well in school and that his school . . . represents an ancho r in his life . [Patrick s co urt-a ppointed attor ney] also offered that the Doughertys have given Patrick the stability that he needs . . . . Custody of Patrick has been changed several times during his short life; at this point, continuity and stability are importa nt consider ations befo re this Court. Although he h as resided with his matern al grandparents since Jan uary 2002, he continues to have regular and unfettered visitation with his mother and father. The court is concerned that should Mr. McDermott be granted custody of Patrick, his propensity for using Patrick as a pawn in the conflict between him and Ms. Dougherty, and now the Doughertys, will obstruct natu ral fa mily re latio nshi ps w ith th e ma ternal sid e of P atric k s f amil y. 4. The period of time which elapsed before the parent sought to re claim the child. Generally, when Mr. McDermott has relinquished custody of Patrick, it has been b ecause h e went to sea. His periods at sea have lasted several months, after which he has sought to regain custody of Patrick. 5. The natu re and stren gth of the ties between the child and the third party custodian. There is no question that Patrick is very close to the Doughertys. His maternal grandparents have always been a part of P atrick s life, and, during m any periods, h ave c ared for h im ex clusively. 6. The intensity and genuineness of the parent s desire to have the child. It is clear from Mr. M cDermott s testimon y that he feels that Patrick s interests are served by being in his custody, that his care and custo dy wou ld be superior to any other family memb er, and tha t he has a g enuine inte rest in raising Patrick. However, the court is unable to agree with the totality of Mr. McDerm ott s self-assessment. It has appeared at various time during these proceedings that Mr. McD ermott s interest in having custody of P atrick was not strictly limited to his desire to care for Patrick, but also his desire to control Ms. Dougherty, and that he has used Patrick as a pawn in the ongoing engagement between M s. Dougherty and him self. . . . Although Mr. -97- McD ermott in dicated . . . that he wo uld remain in Harford County should he gain sole custod y of Patrick, the c ourt is unco nvinced o f his sincerity in this regard. 7. The stability and certainty as to the child s future in the custody of the parent. Mr. M cDerm ott was initially awarded custody in this case. For the most part, custody w as chang ed first to Ms. Dougherty and then to the Dou ghertys because of Mr. McDermott s lengthy periods of absence from the State due to his employment as a merchant seaman. It would a ppear that Mr. McDermott s periodic absences and relinquishment of custody [have] had adverse effect s on Pa trick. For example, shortly after Ms. Dougherty s arrest and subsequent incarceration in early 2002, Mr. McDermott signed onto ship going to Africa and not expected to return until sum mer 20 02. . . . [42] It is selfevident that a revolving door of custodians would not be in Patrick s best interest, now or in the future. [Alterations added .] [Foo tnote ad ded.] [Some emph asis add ed.] We conclude that the circuit court inappropriately found that the absences inherent in Mr. M cDerm ott s job require ments c onstitute d exc eptiona l circum stances . First, we note that, although the Circuit Court for Harford County expressed some reservation as to Mr. McDermott s ability to provide a consistent and stable environment for his child , it failed to find Mr. McDermott to be an unfit parent43 and it is presumed that fit parents act in the best interests of their children. See Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 2504, 61 L.Ed.2d 101 (1979). As we explained in In re Yve S., 373 Md. 551, 819 A.2d 10 30 (2003): 42 The Doughertys testified that, acting on the advice of their counsel in another matter, they intentionally kept from Mr. McDermott the fact of Ms. Dougherty s incarceration. Thus, when Mr. McDermott signed the contract in either December 2001, or very early January 2002, to serve aboard the ship it is not clear that he knew that Patrick s mother was already, or shortly would be, serving time in jail. 43 We do not mean to imply that there is anything in this record to suggest a finding of unfitness. -98- The law s con cept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. Id. at 572, 819 A.2d at 1042 (quoting Parham, 442 U.S. at 602, 99 S .Ct. at 2504). Mr. McDermott s parental fitness having been established, or more precisely, not adjudged to be lack ing, t he in quiry, according to Hoffman, shifts to examining whether any exceptional circumstan ces exist tha t might ove rcome the presump tion favorin g a fit parent s rearing of his child: When the dispute is between a biological parent and a third p arty, it is presumed that the child s best interest is [s erved] by cus tody in the pare nt. That presumption is overcome and such custody will be denied if (a) the parent is unfit to ha ve cu stod y, or (b) if there are such exceptional circumstances as make such custody detrimental to the best inte rest of the ch ild. Therefo re, in parent-third party disputes over custo dy, it is only upon a determination by the equity court that the parent is unfit or that there are exceptional circumstances which make custody in the parent detrimental to the best interest of the child, that the court need inquire into the best interest of the child in order to make a prope r custod ial dispo sition. Hoffman, 280 Md. at 178-79, 372 A.2d 587 (alteration added) (em phasis add ed). It is in this latter phase of the inquiry that the circuit court erred b y inappropriately equating exceptional circumstances with the absences occasioned by Mr. McDermott s merchant marine work. By finding that the dictates of Mr. McDermott s employment voided his right to be a custodial parent, the circuit court overlooked its own lack of a finding of unfitness and failed to accord petitioner with the presumptive benefits of a natural parent, especially a fit natural parent. -99- In Ross v. Pick, 199 M d. 341, 86 A .2d 463 (1 952), this C ourt explain ed the requ isite showing to overcome the presumption that a child s best interests are served by the child s remaining in the custod y of the paren t: Where parents claim the custody of a child, there is a prima facie presumption that the child s welfare will be best subserved in the care and custody of its parents rather than in the custody of others, and the burden is then cast upon the parties opposing them to show the contrary. Id. at 351, 86 A.2d at 468. See also S hurupoff, 372 Md. at 662, 814 A.2d at 557 (reiterating that it is presumed that the child s best interest lies with parental custody subject to a showing that the parent is fit or that no exceptional circumstances exist). Accordingly, it was the Doughertys burden to show that exce ptional circumstances ex isted for a granting of custody in their favor; it was not Mr. McDermott s burden to demonstrate the absence of exceptional circumstances. Indeed, it is a weighty task (or should be) for a third party seeking custody 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.44 In determining that Mr. 44 We do not mean to indicate, however, that the existence of exceptional circumstances is chimerical and cannot ever be proven. Our courts over the years have found exceptional circumstances in awarding custody even to third parties, generally upon a parent s prolonged, non-work-related absence and the child s having been in the consistent care of a third party for a period of years. In Dietrich v. Anderson, 185 Md. 103, 43 A.2d 186 (1945) (declining to remove child from custody of child s aunt and uncle in Maryland who had raised the four-year-old since birth due to natural mother s return to her home state of Iowa and natural father s four-year absence to attend college and later return to Maryland in pursuit of custody), this Court stated, [W]hen reclamation is not sought until a lapse of years, when new ties have been (continued...) -100- McDerm ott s job duties at sea rose to the level of exceptional circumstances, however, the circuit court impro perly penalized a fit parent who desired custody of his son, and placed on the parent the b urden of disproving that which is questionably not even a proper exceptional circumstances consideration. 44 (...continued) formed and a certain current given to the child s life and thought, much attention should be paid to the probabilities of a benefit to the child from the change. Id. at 119, 43 A.2d at 193. In the present case, the father s absences have not been computed in years long periods, nor is there evidence that the child has failed to maintain bonds with him. See Piotrowski v. State, 179 Md. 377, 18 A.2d 199 (1941) (following mother s death, court maintained custody of eight-year-old girl with her paternal grandparents so that child would remain in the only home she had known and stating that the infrequent visits by child s father following his remarriage failed to establish that the child s already-favorable situation would improve upon a modification of custody); Trenton v. Christ, 216 Md. 418, 140 A.2d 660 (1958) (maintaining child in custody of maternal grandparents based on finding exceptional circumstances arising from ten-year-old child s serious emotional upset upon contemplation of a change in her decade-long living situation and child having never visited father or his new family at the family s recent homes in Delaware or Michigan). In the present case the child was emotional because his visits with his father were threatened. He wanted to be with his father. See Melton v. Connolly, 219 Md. 184, 148 A.2d 387 (1959) (encouraging visitation with father but ruling that child s having lived in a clean and nurturing environment with deceased mother s sister and family for a four-and-one-half-year period rendered it in child s best interest to remain with aunt despite father s petition for custody); DeGrange v. Kline, 254 Md. 240, 254 A.2d 353 (1969) (holding that divorced father s long hours working as tool and die maker during which time child would be left in care of non-relatives, combined with father s dishonorable discharge from Army for larceny charge and year-long absence from the child s life merited awarding custody to maternal aunt and uncle who had assumed care of the child two years prior when the child s mother brought the child to them in a weak and malnourished state and then disappeared). See also Burrows v. Sanders, 99 Md.App. 69, 77-78, 635 A.2d 82, 86 (1994) (upholding chancellor s finding of exceptional circumstances in awarding custody of child, born to a sixteen-year-old mother, to paternal grandparents who had raised the child for four years, and observing that granting the mother substantial visitation was in recognition of her improved condition and potential to receive full custody in the future). The circumstances of the case sub judice do not rise to the level of the above cases in respect to the issue of exceptional circumstances. -101- F. Father s Employment in the Merchant Marine Mr. McDermott is a graduate of the United States Merchant Marine Academy and a licensed ship Cap tain in the Merchant Marine. Many of his previous jobs have involved maritime work. Prio r to his marriage he worked aboard ships but upon his marriage he ceased ocean-going and worked prima rily in the Port of Ba ltimore. Following his divorce from Ms. Dougherty, petitioner accepted periodic jobs which took him to sea for several months at a time. Such is the nature of much maritime work, and the attendant required time commitm ents also are not u ncomm on in other lines of work including military deployments, ground transportation of goods, natural gas and oil production, offshore commercial fishing, sport fishing, etc.45 Mr. McDermott s job duties do not involve work that is illegal, untoward, or otherwise injurious. N or is there evid ence in this c ase of any illegal conduct on h is part. While his required absences from Maryland for consecutive months at sea may occasion 45 Many offshore sport-fishing boats migrate north and south with the seasons and the runs of marlin, tuna, etc. Their captains and crews are often gone from their home ports for months at a time, as are commercial fisherman such as long-liners, ocean scallopers and the like. Their families, usually spouses, but one supposes other family members on occasion, tend the children while the parent is gone. While in disputes between natural parents the best interests standard may well result in the home-ported parent prevailing over the absent parent, the nature of the work should not impinge upon the absent parent s constitutional rights in third-party disputes. Other vocations that require extended absences from home would be those involved in major construction projects, tunnel workers, high steel workers, Alaskan cannery workers, United Nations workers on duty in foreign countries, members of the State Department on years-long duty abroad, workers for overseas construction companies, and perhaps a myriad of other vocations. -102- interruptions in his relationship with Patrick and may be less than ideal, such work is the employment especially available to him and for which he has particularized training. This Court reco gniz es M arylan d s tr aditi on as a maritim e Sta te where in an y number of our residents engage in various activities at sea and beyond and going to se a is but one of many occupations which require the worker to depart the State and absent himself or herself for months at a time. We would be loathe to reach a holding that jeopardizes a fit parent s right to custody of his child, by the change of custody to third parties, simply because the source of what is his livelihood and h is means to support himself and his family takes him from the State fo r month s long p eriods o f time. Although casting its decision in the light of Mr. McDermott s having voluntarily gone to sea, the circuit court actually penalized Mr. McDermott for the absences occasioned by the essential terms and very nature of his employme nt. It is difficult, if not impossible, to work as a seaman without going to sea. At one hearin g, the circuit court was incredulou s of Mr. M cDermott s explanation at trial that he had resigned f rom his po sition as a merch ant marine , but maintain ed his membe rship in the union of merchan t mariners in order to sustain Patrick s health insurance. Instead, the court chose to believe that Mr. McDermott s ongoing membership was for the purpose of keeping open the possibility that he might re-engage in maritime work at some future date, even if he had so le custody of Patrick.46 The Doughertys urged their selection 46 Being a member of the Merchant Marine is a calling; often an honorable calling (continued...) -103- as the stab le custo dians, c ontending that the father s lifestyle as a merchant seaman presented a cha lleng e to th e [c] ourt in ter ms o f his abili ty to care for h is child on a consistent basis . . . and he has left the state of Maryland for various lengths of time during the course of this case (alteration ad ded). The Doughertys argument implies that Mr. McDermott s absences from the State, which were occasioned solely by the dictates of his emp loyment, wo uld be the o nly obstacle to his otherwise deserving full custody of Patrick. Thus, according to respondents reasoning, Mr. M cDerm ott s parenting rights are con tingent on his employment. The Dou ghertys maintain that the circuit court s finding was not dependent on the specific type of employme nt held by M r. McD ermott, but ra ther it was the accumu lation, timing, and voluntariness of his employment-related absences that made the circum stances exc eptional. The circuit court echoed this position, stating, In the past whenever Mr. McDermott faced adverse circumstances, he left the State for protracted periods of time for sea duty, seeming ly without concern f or how h is leaving w ould affe ct Patrick. T he circuit cou rt was not a ble to find that Mr. McDermott was an unfit parent, but rather declined to grant him custody based on exceptional circumstances occasioned by the absences inherent in his position as a merchant mariner. A ccordingly, it was Mr. M cDermott s employment that persuaded the circuit co urt of th e prese nce of exce ptional c ircums tances. 46 (...continued) requiring many sacrifices. In time of war members of the Merchant Marine sometimes make the ultimate sacrifice. Employment in the vocation is not some type of bad act. Not only is it a job, but it is a service to be in the United States Merchant Marine. -104- The absences inherent to Mr. McDermott s merchant marine work are not unlike those required of military personnel or others in occupations mandating periods of service away from one s h ome. C ustody iss ues sho uld be d etermin ed on a case-b y-case ba sis. See Barnard, 157 Md. at 267-68, 145 A. a t 616 stating the proposition that [t]here can be no binding, and very little helpful, precedent found in the decisions of the courts o n this subjec t, because essentially each case must depend upon its peculiar circumstances (alteration added). It is noted that other courts also generally have been reluctant to establish a definitive standard governing child custody when a fit parent is called away for an extended period for work. For example, the case of In re Marriage of Rayman, 273 Kan. 996, 47 P.3d 413 (2002), discusses the Supreme Court of Kansas rejection of a mother s reque st for a bright line rule that a p arent with residential custody of his or her children loses that custody when required to be away from his or her children for an extended period of time such as a twelve -month military tou r overse as. Id. at 1001, 47 P.3 d at 416 . In re Rayman involved a non-reside ntial custodia n fit mother who invoked the parental preference doctrine (i.e., fit parents are a child s p referred cu stodians) co ntending th at it was less d isruptive to her children to place them in her temporary residential custody in Kansas and later Tennessee, than to allow them to remain with their stepmother, and near her ailing parents in Texas, while the children s residential custodian father completed a twelve-month military hardship tour in Korea before returning to T exas. Id. at 999, 47 P.3d at 416. In rejecting the mother s petition, the Kansas high court observed: Each situation involving military -105- families has distinct dif ferences, a s do the fac ts of tempo rary changes which re late to nonmilitary custodial relationships. The temporary transfer of the parent with residential custody must not automatically trigger a custody change. . . . Custody is an issue to be determined on a case-by-case basis . . . . Id. at 1001 , 47 P.3 d at 416 -17. In a somewhat analogous and presently unreported decision involvin g a soldier s Family Care P lan, i.e., a compulsory document providing for care of the family in the soldier s absence, which provided that the paternal grandmother would care for the children during the custodian soldier-father s deployment, the Court of Appeals of Iowa, that state s intermediate appellate court, adopted the holding of the In re Rayman court, stating, We further decline to adopt a bright line rule divesting a parent of physical care whenever the parent is required to be away from the children for an extended period. In re Marriage of Grantham, ___ N.W.2d ___, 2004 WL 2579567, at *8 (IowaApp., Nov. 15, 2004). Similarly, in In re Marriage of Hruby, 304 Or. 500, 748 P.2d 57 (1987), a divorced legal custodian father, who had served in the Navy since the child s birth and had p laced the ch ild in the care of the child s aunt given the parents inability to provide care, sought to regain custody of his child with whom he had maintained regular contact and suppo rt. Id. at 503, 748 P.2d at 58. The child s care-giver aunt disputed a parental custodial preference and intervened in the heated custody action asserting that the child had developed a close relationship with th e aunt a nd unc le. Id. at 502-503, 748 P.2d at 58. In awarding custody of the six-year-old ch ild to the fath er, the Oregon Supreme Court noted that Oregon law -106- supports a fit parent s right to custody of his minor children unless there are compelling reasons for depriving him of that custody Id. at 508 n.5, 748 P.2d at 62 n.5 (emphasis omitted), and because the father was not a stranger to his child, there was no showing that the child would not receive adequate care and love from the father or that the child would be otherwise unduly harm ed, physically or psych ologically, by giving custody to him. Id. at 517, 748 P .2d at 67 . Thus, the In re Hruby court found no compelling reasons to deny custody to the father. In non-military circumstances47 courts have reac hed similar re sults in favo r of a fit parent who is temporarily gone for extended periods and who desires custody of his or her children. The Louisiana intermediate appellate court declined to maintain custody in the maternal grandparents, who had assumed custody after their daughter abandoned her husband and minor children, when the father later sought custody of the children. Similar to the present case, the father, a tugboat captain, initially had consented to the grandparent custodial arrangement because he was away from home on a reg ular bas is. Jones v. Jones, 47 Service in the Merchant Marine can be classified as somewhere between military and non-military service. In times of war the Merchant Marine may come under governmental control. The Merchant Marine Act of 1936, 46 U.S.C. app. § 1101 (2004) provides inter alia, It is necessary for the national defense and development of its foreign and domestic commerce that the United States shall have a merchant marine . . . (b) capable of serving as a naval and military auxiliary in time of war or national emergency . . . . It is declared to be the policy of the United States to foster the development and encourage the maintenance of such a merchant marine. It is not clear whether the ships upon which petitioner sailed during the relevant periods were United States flagged vessels. They may have been foreign flagged vessels. In any event, petitioner was a licensed captain in the Merchant Marine, albeit, at times he may have served as an officer or seaman on foreign flagged vessels. -107- 415 So.2d 300, 301 (La.Ct.App. 1982). In approving of custody with the father, who had paid child support on a regular basis and had a new wife who desired to have the children and care for them, the court stated: It is not proper to merely compare the parent s circumstances and situation with that of the non-parent an d award custody on the basis of best interests of the child. The best interest comparison is the proper basis for custody contests between parents; it is not properly applied to a contest between a parent and a non-pare nt becaus e the paren t enjoys the p aramo unt right to custody. . . . [T]he trial co urt did not fin d, and the re cord doe s not supp ort a finding, that appellant has forfeited his right to parenthood; is unfit to care for his children; or is u nable to provide a home for them. Although the [maternal grandparents] have cared for these children for a considerable period of time, we do not con sider this to be a compelling reaso n to leave th e children w ith them particularly in light of [the father s] remarriage, stable lifestyle, and close, loving relatio nship with his children. Likewise, [the father s] absences from home in connection with his employment do not constitute a compelling reason to deprive him of the custody of his children. Id. at 302 (altera tions added ) (emphas is added) (f ootnote om itted) (citations omitted ). Some may discern from these cases a theme that suggests that grandparen ts are convenient surrogates for parents who encounter difficulties whether economic, emotional or logistic in raising their children. Grandparents contributions do not go unnoticed and their efforts likely accrue to the benefit of the grandchildren. A quote from a case before the Suprem e Court of Iowa sup ports this prop osition, but w ith an espec ially relevant cave at: Our cases have emphas ized that pare nts should be encouraged in time of need to loo k for help in caring for th eir children without risking loss of custody. The presumption preferring parental custody is no t ove rcom e by a mere showing that such assistance was obtained. Nor is it overcome by showing that those wh o provide d the assistan ce love the c hildren and would -108- provide them w ith a goo d hom e. These circumstances are not alone sufficient to over come the pref erence for par ental cu stody. In re Guardianship of Sams, 256 N.W.2d 570, 573 (Iowa 1977) (empha sis added). Although the Doughertys did not maintain Patrick in their home and raise the child from infa ncy, the relative reg ularity of their contribution as well as the positive contribution of all grand parents m ust be ackn owledg ed. Neve rtheless, their ef forts on Pa trick s behalf under the c ircumstanc es of this case cannot overcome the fundamental constitutional right of a fit parent to exercise care and custody of his child and the circuit court, clearly impressed with the grandparents care, cannot invoke absences occasioned by the parent s proper employment in support of placing the child with the grandparents due to exceptional circum stances . G. Coun sel Fees and C osts Mr. McD ermott filed a n answe r and a cou nter/amen ded com plaint in June 2003 seeking attorneys fees and suit costs as well as addressing custody and support issues. The circuit court did not sign an order specifically responding to this filing, but it can be concluded that in awarding custody to the Doughertys, the circuit court effectively denied Mr. McD ermott s petitio n for costs and fees. In affirming the circuit court, the Court of Special Appeals man dated that costs were to be paid by appellant (Mr. McDermott). In the present appeal, Mr. McDermott renews his petition for attorney s fees and suit costs (which said costs would include reimbursement of the charges for preparation of the trial s -109- transcript). We note that Md. Code (1984, 1999 Repl. Vol., 2004 Supp.), § 12-103 of the Family Law Article provides for the award of costs and counsel fees in some child custody and support actions.48 We obs erve that disc retion in awarding counsel fees rests with the trial court and the award of counsel fees must be b ased upo n the statutory criteria and the fa cts of the case. Jackson v. Jackson, 272 M d. 107, 112 , 321 A.2d 162, 166 (1974); see also Turner v. Turner, 147 Md.App. 350, 413, 809 A.2d 18, 55 (2002 ) (rema nding, inter alia, the issue of counsel fees in marriage dissolution case to the circuit court to consider the issue of attorney s fees based on accu rate factual underpinning s ). Accordingly, the trial court must determine the issue of counsel fees upon remand. 48 Md. Code (1984, 1999 Repl. Vol., 2004 Supp.), § 12-103 provides: (a) In general. The court may award to either party the costs and counsel fees that are just and proper under all the circumstances in any case in which a person: (1) applies for a decree or modification of a decree concerning the custody, support, or visitation of a child of the parties; or (2) files any form of proceeding: (i) to recover arrearages of child support; (ii) to enforce a decree of child support; or (iii) to enforce a decree of custody or visitation. (b) Required considerations. Before a court may award costs and counsel fees under this section, the court shall consider: (1) the financial status of each party; (2) the needs of each party; and (3) whether there was substantial justification for bringing, maintaining, or defending the proceeding. (c) Absence of substantial justification. Upon a finding by the court that there was an absence of substantial justification of a party for prosecuting or defending the proceeding, and absent a finding by the court of good cause to the contrary, the court shall award to the other party costs and counsel fees. -110- Mr. McDermott s request for an aw ard of the c ost of the trial tran scripts is a related, though less frequently examined issu e, and must be addressed in the context of suit costs. Md. Rule 2-603, in regard to costs pursuant to judgment in civil actions, provides: (a) Allowance and allocation. Unless otherwise provided by rule, law, or order of court, the prevailing party is entitled to costs. The court, by order, may allocate costs among the parties. Add ition ally, Title 8 of the Maryland Rules, governing Appellate Review in the Court of Appeals and Court of Special Appeals specifically addresses the issue of transcript preparation and transcript costs. Md. Rule 8-411 provides: (a) Ordering of transcript. Unless a copy of the transcript is already on file, the appellant shall order in writing from the cou rt stenographer a transcript containing: (1) a transcription of (A) all the testimony or (B) that part of the testimony that the parties agree, by written stipulation filed with the clerk of the lower court, is necessary for the appeal or (C) that part of the testimony ordered by the Court pursuant to Rule 8-206 (d) or directed by the lower court in an order; and (2) a transcription of any proceeding relevant to the appeal that was recorded pursuant to Rule 16-404 e. (b) Time for ordering. The app ellant shall ord er the transcrip t within ten days after: (1) the date of an order entered pursuant to Rule 8-206 (a) (1) that the appeal proceed without a prehearing conference, or an order entered pursuant to Rule 8-206 (d) following a prehearing conference, unless a different time is fixed by that order, in all civil actions specified in Rule 8-205 (a), or (2) the date the first notice of appeal is filed in all other actions. (c) Filing and service. The appellant shall (1) file a copy of the written order to the stenographer w ith the clerk of the lower court for inclusion in the record, (2) cause the original transcript to be filed prom ptly by the court reporter with the clerk of the lower court for inclusion in the record, and (3) promp tly serve a c opy on th e appe llee. Md. R ule 8-607 (a), governin g assessm ent of costs provides, in p art: -111- (a) Allowance and allocation. Unless the Court orders otherwise, the prevailing party is entitled to co sts. The Co urt, by order, ma y allocate costs among the parties. Md. Rule 8-608, addresses the computation of costs: (a) Costs gener ally allo wed . The Clerk shall include in the costs the allowance determined pursuant to section (c) of this Rule for reproducing the briefs, the record extract, and any necessary appendices to briefs and any other costs prescribed by these rules or other law. Unless the case is in the Court of Appea ls and was previously heard and decided by the Court of Special Appeals, the Clerk sh all also includ e the amo unt paid b y or on behalf of the appellant for the original and the copies of the stenographic transcript of testimony furnished pursuant to section (a) of Rule 8-411 . If the transcript was paid for by the Office of the Public Defender, the Clerk shall so state. (b) Costs gener ally ex cluded . Unless the Cou rt orders otherwise, the Clerk shall exclude from the c osts the costs o f reprodu cing the rec ord if it was reproduc ed withou t order of the Court. (c) Allowance for reprod uction . The Clerk shall determine the allowance for reproduction by multiplying the number of pages in the briefs, the record extract, and any necessary appendices to briefs by the standard page rate esta blished from tim e to time by the Co urt of A ppeals . Acc ordingly, based on the fact that Mr. McD ermott sought a transcript of the circuit court proceedings in order to prosecute his appeal, the costs incurred in obtaining that transcript are conside red costs of his suit. III. Conclusion In this case there is no doubt that Patrick loves his father and Mr. McDermott loves his son. Petitioner has maintained his relationship with his son since the child s birth, even when the child was not domiciled with him. The results of myriad examinations, reports and testimony were insufficient to convince the circuit court that Mr. McDermott was an unfit parent, and clearly, Mr. McDermott s vigorous use of the family courts provides insight on -112- his desire to have custody of Patrick. Courts cannot preempt the established and constitutionally-protected fundamental rights of a p arent, who is not unfit, simply because that parent s job takes him from the State for extended periods of time or merely because a child might be better off, in a particular judge s view, living elsew here. The circuit court erred in invoking the dictates of Mr. McDermott s work as a merchant marine, insofar as the requirements of the job caused him to be absent from the state for several months-long periods of time, and arriving at the conclusion that application of the guidelines for exceptional circu msta nces wa rranted p lacin g Pa trick in the cus tody o f his maternal grandparents. We reverse the judgment of the Court of Spec ial Appeals and rem and to that court with instructions to reverse the decision of the circuit co urt. The case is ordered remanded to the circuit court in ord er for it to address the issue of counsel fees. All costs to be paid by respondents.49 49 The concurring opinion implies that the majority opinion is in conflict with seven of our prior cases: Nagel v. Hooks, Taylor v. Taylor, McCready v. McCready, Petrini v. Petrini, Boswell v. Boswell, In re Mark M. and Shurupoff v. Vockroth. Other than Shurupoff, the present opinion is not inconsistent with any of the seven cases. Shurupoff is a case that modified the holding in Ross v. Hoffman and is a case we partly disavow in the case sub judice. In re Mark M. involved a dispute between the State and a parent and was a case in which a child in a previous case had been adjudged a Child in Need of Assistance and who had already been placed in a guardianship. The issue in that case concerned whether the juvenile court had improperly delegated its authority to establish visitation to the Department of Social Services and also issues of psychological evaluations, including independent evaluations, to be used in determining visitations. The other cases are even more distinguishable. None involve third-party attempts to gain custody over the children of others. The majority opinion is clearly limited to such (continued...) -113- JUDGMENT OF THE COURT OF SPECIA L APPEALS REVERSED. CASE R E M A N D E D T O T H AT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCU IT COURT FOR HARFORD COUNTY AND TO REMAND THE CASE TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPO NDENTS. 49 (...continued) third-party cases. Nagel, Taylor, McCready, Petrini, and Boswell are all cases involving disputes between natural parents. The present opinion changes nothing as to those cases, does not apply to In re Mark, and overrules, in part, Shurupoff, which itself overruled a relevant part of Ross v. Hoffman. It was Shurupoff that departed from the principles of Ross v. Hoffman. The majority opinion in the case at bar, restores it and further clarifies Ross v. Hoffman. We have been careful not to resolve issues relating to the rights and responsibilities of the State in the various actions in which it plays a role, leaving those issues for the cases in which they are presented. Moreover, we have time and again in our opinion noted that the best interest standard that applies in disputes between natural parents, with our opinion, remains unchanged. The Court has gone to great lengths to affirm that the present opinion is limited to the context of attempts by pure third parties to gain custody over the children of others. -114- In the Circu it Court for H arford C ounty Case No. 12-C-95-023852 IN THE COURT OF APPEALS OF MARYLAND No. 58 September Term, 2004 ______________________________________ CHARLES D. McDERMOTT v. HUGH J. DOUGHERTY, SR., ET AL. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Concurring Opinion by Wilner, J. ______________________________________ Filed: March 10, 2005 -1- I concur in the judgment be cause it is clear to me that, und er the standa rds that this Court has consistently applied since Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977), the trial court erred in granting custody of Patrick to the Doug hertys. I do not concur, however, with the Court s sudden and wh olly unnecess ary purported discarding of those standards. I say purported because it is not clear to m e what the Court has really done in its 113-page slip opinion, other than to sow uncertainty and confusion in an area that demands clear and accessible guidelines. In Ross, supra, this Court, synthesizing earlier decisions, laid out a very clear standard for resolving custody disputes between a parent and a non-parent. We said: To recapitulate: the best interest of the child standa rd is always determinative in child custo dy disputes. W hen the disp ute is between a biological parent and a thir d party, it is presumed that the child s best interest is subserved by custody in the parent. That presump tion is overcome and such custody will be denied if (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as [to] make such custody detrimental to the best interest of the child. Id. at 178-79, 372 A.2d at 587. (Emphasis ad ded). We recognized in Ross that parents ha ve the natu ral right to the cu stody of their children , id. at 176, 372 A.2d at 586, but regarded the strong presumption in favor of such custody as sufficien t to protect that righ t. We made clear that the ordinary entitlement of parents to the custody of their minor children was not absolute and that it would not be enforced inexorably, contrary to the best interest of the child, on the theory of an absolute legal right. Id. at 176, 178, 372 A.2d at 586-87. At least seven times since Ross we have restated and confirmed those principles. In Nagel v. Hooks, 296 Md. 123, 128, 460 A.2d 49, 51 (1983), citing Ross, supra, 280 Md. at 174-75, 372 A.2d at 585, we stated that [i]n resolving custody disputes, we are governed by what is in the best intere st of the partic ular child an d most co nducive to his welfar e. This best interest standard is firmly entrenched in Maryland and is deemed to be of transcendent importance. (Empha sis added). In Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964, 970 (1986), w e made th e point: We emphas ize that in any custody case, the paramou nt concern is the best intere st of the child . As Judg e Orth po inted out for the Court in Ross v. Hoffman [citation omitted], we have variously characterized this standard as being of transcendent importance and the sole question. The best interest of the child is therefore not considered as one of many factors, but as the obje ctive to w hich vir tually all oth er facto rs speak . (Emphasis add ed). In McCready v. McCready, 323 Md. 476, 481, 593 A.2d 1128, 1130 (1991), we repeated that statement from Taylor. In Petrini v. Petrini, 336 Md. 453, 468, 648 A.2d 1016, 1023 (1994), citing Ross, supra, 280 Md. at 174-75, 372 A.2d at 585, we observed that [c]hild custody awards have traditionally been predicated on the best interest of the child involv ed. In Boswe ll v. Boswe ll, 352 Md. 204, 21 9, 721 A.2d 662, 669 (1998), citing Taylor, supra, 306 Md. at 303, 508 A.2d at 970 (quoting in part from Ross, supra, 280 Md. at 175 n.1, 372 A.2d at 585 n.1), we stated: In Maryland, the State s interest in disputes over visitation, custody, and adoption is to protect the best interests of the child who is the subject ma tter of the con troversy [citation omitted]. We have described the best interests of the child -3- standard as being o f transcend ent importa nce and th e sole question in familial disputes; indeed, it is therefore not considered as one of many factors, but as the objective to which virtually all other factors speak. See also In re Mark M., 365 Md. 687 , 705, 782 A.2d 3 32, 343 (2001). Only two years ago, in Shurupo ff v. Vockro th, 372 Md. 639, 814 A.2d 543 (2003), we revisited afresh the standard to be applied in custody disputes between a parent and nonparent. After surveying both the consistent ho ldings of this Court and the treatment of the issue in other States, we c onsciously an d clearly confirm ed wha t we said and held in Ross: The court must always, necessarily, inquire into wh at is in the child s best interest, for that is the ultimate, determinative factor. Shurupo ff, 372 Md. at 662, 814 A.2d at 557. (Emphasis added). We added, so that there could be no confusion: The real point made in Ross v. Hoffman and carried forth since is that, whe n the disp ute is betw een a pare nt an d a th ird party, it is presumed that the child s best interest lies with parental custody. If there is a sufficient showing that the paren t is unfit, however, or that exce ptional circum stances exis t which w ould make parental cu stody detrimen tal to the child s b est interest, the presump tion is rebutted and custo dy should not be given to the parent, for, in either situation, parental custody could not possibly be in the ch ild s best interest. So long as the best interest of the child remains the definitive stand ard and there is any reason able alte rnative, i t defies both logic and common sense to place a child in the custody of anyone, including a parent, when either that person is unfit to have custody or such action, because of exceptional circumstances, would be detrime ntal to th e child s best inte rest. Shurupo ff, 372 Md. at 662, 814 A.2d at 557. The Court tod ay, in a 113-pa ge slip opinio n suggests , with its right hand, that the best -4- interest of the child standard no longer applies in disputes between a parent and a non-parent that the parent s Constitutional right to custody is predominant but, with its left hand, seems to indicate tha t that is not the ca se at all, and tha t, in the end, co urts must act in the child s best interest. Why the C ourt choo ses to take su ch an unn ecessarily convolute d path is a myster y to me. The Court seems to be concerned that an unfettered application of the best interest standard will result in judges engaging in inappropriate social engineering, of wrenching children from parents who may be poo r or otherw ise disadva ntaged an d giving the m to wealthier, more advantaged, people on the theory that the children would be better off. That is not what the Ross approach allows, however, and the trial judges in this State understand that is not the case. The presumption affo rded under Ross is rebutted only when the evidence shows that the parent is unfit to have cu stody or that exceptional circumstances exist which would make parental custody detrimental to the child s best interest. Neither of those circumstances would include a feeling by a judge tha t the child might simply be better off with the non-p arent, that, in the judge s view, the non-paren t could give the child a m ore affluent or even a more caring upbringing. That does not suffice to warrant denying custody to the parent, and, if the record in any case indicates that the trial court did not properly apply the presumption favoring p arental custo dy, its decision w ill be reversed on appea l, as this very case illustrates. In the end, even und er the Court s new approach, the trial court will have to apply the -5- best interest standard. The Co urt agrees that a parent s Constitutional right to raise his/her children is not absolu te. It agrees that custody may be denied to a parent if the evidence shows that the parent is unfit, and it even continues to bless the alternative basis for denying parental custody exceptional circumstances which would made parental custody detrimental to the child s best interest. That will necessarily require the court to examine and be gov erne d by w hat is in the chi ld s b est in teres t. So why g o through 113 pages of convolution to say, in the end, what has already been said, confirmed, and reconfirmed in a few clear simple paragraphs? -6-
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