Koshko v. Haining
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Glen Koshko, et ux. v. John Haining, et ux., No. 35, Sept. Term 2006. FAMILY LAW - GRANDPARENTAL VISITATION - STATUTE INTERPRETED TO CONT AIN REBUTTABLE PRESUMPTION FAVORING PARENTAL DECISION AS IN CHILD S BEST INTERESTS FAMILY LAW - GRANDPARENTAL VISITATION - STATUTE INTERPRETED TO REQUIRE THRESHOLD FINDING OF PARENTAL UNFITNESS OR EXCEPTIONAL CIRCUMSTANCES TO PRECEDE BEST INTERESTS INQUIRY Glen and An drea Ko shko are th e custodial p arents of three minor children, Kaelyn, Haley, and Aiden. The couple met and began dating after then-Andrea Haining moved back into her parents , John a nd M aureen Hainin g s, hom e in M iddletow n, New Jersey. Andrea purported ly had left to escape the acrimonious environment there, but returned from Florida after her boyfriend abandoned her when she became pregnant. On 26 September 1994, Andrea gave birth to Kaelyn, who was raised in her grandparents home for the first three years of her life. During this time, the H ainings w ere very involv ed in Kaelyn s upbringing. In September 1997, Andrea and Kaelyn moved out of the Haining residence to live with Glen in nearby Point Pleasant. Despite the move, Maureen Haining maintained a close relationship with Kaelyn and visited her often. Eventually, Glen and Andrea became affianced and, contra ry to the plans an d wishes o f the Hain ings, eloped in 1998. In June 1999, the newlyw ed couple and child m oved to Baltimore County in connection with G len s employme nt. At the time of the mo ve, Kaelyn w as nearly five years old. The fam ily has remained in Baltimore Cou nty. The couple s two other children, Haley and Aiden, were bo rn in M arylan d on 21 A ugust 19 99 and 19 De cem ber 2 002, resp ectiv ely. From the time the Koshkos moved to Maryland until October 2003, the Koshkos and Hainings maintained a regular visitation regimen. The families essentially took turns traveling to one another s homes once every month. In between visits the grandparents and grandchildren maintained a relationship via correspondence. This visitation regim en abrup tly ceased in October 2003 when the adults of the two families became embroiled in a bitter argument over Glen s nonchalant approach to his terminally-ill mother s deteriorating condition. Apparently disturbed by the Hainings criticism, Glen Koshko asserted that he would no longer permit the Hainings to visit their grandchildren. Despite the Hainings repeated attempts over several months to reconcile their dispute with the Koshkos and reestablish visitation, the Koshkos remained largely incommunicado. The Hainings retained an attorney in an effort to facilitate some discussion, which was answered by the Koshkos proposal to allow one visit and the possibility of future visitation. The Hainings refused, declining to accept anything less than a commitment to regular visitation with the grandchildren. On 19 April 2 004 the H ainings filed in the Circuit C ourt for B altim ore C oun ty a grandparent visitation petition pursuant to the Marylan d Grand parental V isitation Statute (GVS). The trial court entered an order granting the Hainings petition, finding that visitation was in the best interests of the grandchildren. In addition to establishing a rolling schedule of four-hour visits every 45 days and quarterly overnigh t visits, the trial court directed that the Koshkos and Hainings attend at least four joint, professional counseling sessions to discuss issues relating to the visitation. Af ter an unsu ccessful b id for a new trial, the Kosh kos appe aled the jud gment of the Circuit C ourt. The Court of Special A ppeals affirmed the judgment, holding that the GVS was neither facially unconstitutional nor unconstitutional as applied to the Koshkos. The intermediate appellate co urt rejected the argumen t that the GV S violated th e Koshkos fundamental right to parent, as articulated in Troxel v. G ranville, 530 U.S . 57, 120 S . Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality), simply because it lacked an express presumption that parental decisions are in the best interests of children. Under the principle of constitutional avoidance, the court interpreted the GVS to contain such a presumption. The Court of Specia l Appeals then disagr eed with the Koshkos position that there must be a threshold finding of either parental unfitness or exceptional circumstances as a predicate to the statutoril y-impose d best in terests o f the ch ild inqu iry. Finally, the court affirmed the visitation award u pon a find ing that the g randparen ts had rebu tted success fully the presumption in favor of the Kosh kos decisio n to terminate visitation. The Koshkos petitioned the Court o f Appe als, which g ranted a w rit of certiorari to consider the Koshkos substantive due process challenge to the GVS. The GVS, codified a t Maryland C ode (198 4, 2004 R epl. Vol.), Fa mily Law A rticle § 9-102, permits a Maryland court to g rant grandp arents reaso nable visitation with their grandchildren upon a fin ding that it is in the children s best interests. The express terms of the statute, however, do not prescribe that courts apply a presumption in favor of parental decisions relating to visitation with their children. The U.S. Supreme Court held in Troxel that substantive due process principles require that court determinations of third party visitation cases under the best interest of the child standard must be informed by a parental presumption. Rather than invalidate the Maryland statute on its face, the Court of Appeals, under the principle of constitutional avoidance, interpreted the GVS to contain the presumption. The Court, however, concluded under strict scrutiny analysis that the GVS was unconstitutionally applied to the Koshkos because the statute lacked sufficiently narrow tailoring to the State s interest in children s welfare vis-a-vis the children s beneficent exposure to grandparents. Strict scrutiny was triggered because the statute implicated the Koshkos fundamental right to parent. Specifically, the GVS imposed a direct and substantial interference with the Koshkos decision regarding visitation by interjecting the state and third parties without a claim to a constitutional right to visitation into the custodial parents decision-making process. This process is generally left to the discretion of parents, who are presumed to act in the best interests of their children. The Court found this direct interference also to be substantial in nature. Althoug h visitation m atters may prov e to be less weighty than custod y and adoptio n matters in the non-constitutional realm, for purposes of substantive due process analysis, third party visitation disputes impede just as substantially upon the fundamental right to parent as do custody and adoption disputes. In order to remedy this lack of na rrow tailoring , the Court a gain emp loyed the princ iple of constitutional avoidance and applied the GVS with a judicial gloss. This gloss requires a threshold finding of parental unfitness or exceptional circumstances demonstrating the detriment that has or will be imposed on the children absent visitation by their grandparents before the best interests analysis may be engaged. This parental unfitness/exceptional circumstances test was imported from the third party custody case McD ermott v. Dough erty, 385 Md. 320, 869 A.2d 751 (2005). The Court reasoned that custody and visitation matters generally have been decided under the same standards and that the fundamental right to parent is equally at risk from undue state interference in the context of both custody and visitation determinations. Acc ordingly, the parental unfitness/exceptional circumstances safeguard imp osed in third party custody determinations is appropriate ly applied in third p arty visitation matte rs as well. The Court thus overruled its precedent in Fairbanks v. McCarter, 330 Md. 39, 622 A.2d 121 (1993), and its prog eny that held such threshold findings unnecessary in third party visitation cases. The Court rem anded the case for ap plication of th e new thr eshold req uirement. Circuit Co urt for Baltim ore Cou nty Case #03-C-04-4273 IN THE COURT OF APPEALS OF MARYLAND No. 35 September Term, 2006 GLE N KO SHK O, et ux. v. JOH N HA ININ G, et ux. Bell, C.J. Raker Wilner Cathell Harrell Greene Eldridge, John C. (retired, specially assigned), JJ. Opinion by Harrell, J. Eldridge, J., Dissents. Filed: January 12, 2007 This case require s us to cons ider a constitu tional challenge to Maryland s grandparental visitation statute ( GVS ), Ma ryland C ode (19 84, 200 4 Rep l. Vol.), Family Law Article § 9-102.1 Specif ically, we are ask ed to decid e whethe r the GV S is unconstitutio nal, under substantive due process analysis, because it fails to recognize a rebuttable presumption accorded the propriety of a parent s d etermination of wha t is in his or her child s best interest with respect to visitation with a grandparent. We furth er shall consider whether substantive due process requires a threshold finding of either parental unfitness or exceptional circumstances counseling in favor of grandp arent visitation before a court may proceed to determine what is in a child s best interests. I. FACTS The instant case involves a bitter familial conflict centered around Petitioners , Glen and Andrea Koshko s, opposition to visitation by their minor children (Kaelyn, Hailey, and Aiden) with the children s maternal grandparents, Respondents, John and Maureen Haining. The origins of the discontent between the adults h arkens back to events long pa ssed. It may have began as early as when then-Andrea Haining was living with her paren ts in Middletown, New Je rsey. At age eig hteen, An drea left her parents ho me, asserted ly to 1 Family Law § 9-102 reads: An e quity court ma y: (1) consider a petition for reasonable vis itatio n of a gra ndchild by a grandparent; and (2) if the court finds it to be in the best interests of the child, grant visitation rights to the gr andparen t. escape the rancor of her parents persistent and occasionally violent feuding, and moved to Florida with her b oyfriend, Jam es Atkats. W hile in Florida , Andrea b ecame p regnant w ith her first child, Ka elyn. Mr. Atk ats deserted Andrea and his unborn child. The young mo therto-be returned to New Jersey to live with her parents again. Andrea gave birth to Kaelyn on 26 September 1994. For the first three years of Kaelyn s life, she was raised in the Hainings residence. Under this arrangement, the Hainings were active participants in Kaelyn s upbringing. During Andrea s stay with her pa rents, she met and beg an dating Glen K oshko. In September 1997, Andre a and Kae lyn moved out of the H ainings ho use in orde r to live with Glen in the nearby town of Point Pleasant. Due to the proximity of the couple s residence to Middletown, however, Maureen Haining m aintained a close relationship with Kaelyn and visited often. Eventua lly, Glen and A ndrea bec ame aff ianced an d, contrary to the plans and wishes of the Hainings, eloped in 1998. In June 1999, the newlywed couple and child moved to Baltimore County in connection with Glen s employment. At the time of the move, Kae lyn was nearly five years old. The family remained in Baltimore County throughout the times relevant to this litigation. The couple s two other children, Haley and Aiden, were born in M arylan d on 21 A ugust 19 99 and 19 De cem ber 2 002, resp ectiv ely. Undeterred by the physical distance between them, the Koshkos and Hainings visited one another ap proximate ly once a mo nth until the parties became estranged in October 2003. The Hainings, at the trial of the present case, adduced various items of evidence, including 2 photographs, videos, and E-Z Pass 2 billings intended to corroborate this visitation regimen. Included in this evidence was a log compiled by the Hainings detailing the times and locations of the thirty-one visits that occurred between May 2001 and October 2003. The trial court also received testimony and documentary evidence of telephone calls, letters, and cards exchanged by the Hainings and the Koshko children, offered to illustrate the degree of closen ess betw een the grandp arents a nd gran dchildr en. The familial dispute foreshadowed in this opinion erupted in October 2003, precipitated by the Hainings vehement disapproval of Glen Koshko s approach to the deteriorating condition of his mother, who was then in the final stages of terminal cancer. The Hainings, particularly Maureen, felt that Glen was spending too much of his free time engaged in self-indulgent social activities, including a five-day trip to Glen s college homecoming in South Carolina, rather than visiting with his ailing mother. During a telephone conversation with Andrea the week after the homecoming trip, Maureen Haining proposed that the Koshkos travel to New Jersey so that Glen could visit his mother while the Hainings would look af ter the children. Andrea declined the invitation and indicated that Glen had a birthd ay party planned for that weekend. Maureen renewed her offer, observing that Glen s mother would not live much longer and that the Koshkos already had spent a long 2 For the una cquain ted, E-Z Pass, though probably familiar to the inhabitants of the mid-Atlan tic seaboard, is a commercial service that allows motorists to pay into an account from which certain roadway and bridge tolls are deducted when the motorist passes through the prescribed toll lanes equipped to receive the transmission sent from the motorist s E-Z Pass transmitter tag . 3 weekend recreating in South Carolina. Andrea related Maureen s comments to Glen and he joined the telephone call on an extension. He and Maureen had what can be described charitably as an unkind exchange of sentiments, resulting in Glen s assertion that the Hainings would not be allowed to see their grandchildren again. John Haining, hearing from his wife what transpired, confirmed the details with Andrea and then left a message on Glen s cell phone voicemail threatening to assault him later that evening in Maryland. Following this contretemps, the Hainings apparently attempted on several occasions to make amends, which were rebuffed or ignored by the Koshkos. The Koshkos also disregarded a letter from A ndrea s sister, T racey, relating to th e children s p roposed ro les in her wedding planned for August 2004. The Koshkos remained largely incommunicado from their extended family on the H aining side for approximately four months until an attorney engaged by the Hainings wrote to Glen and Andrea on or about 27 February 2004, suggesting mediation. The Ko shkos resp onded to the suggestion by offering an arrangement permitting one visit with the children and the possibility of future visits based upon logistical considerations. The Haining s ref used . Instead, the H ainin gs, u nsuc cess fully, demanded that the Koshkos commit to a consistent visitation schedule. The Hainings filed their gran dparent vis itation petition o n 19 Ap ril 2004 in the Circuit Court for Baltimore County. Following many months of motions and discovery, the petition was considered on its merits during a two-day trial in the Circuit Court. Ruling from the bench, the trial judge addressed the evidence adduced over the course of the hearing, 4 concluding that the Ha inings had rebutted the presump tion in favo r of the parents determination of wha t is in their child s best inte rests. See Troxel v. G ranville, 530 U.S. 57, 120 S. Ct. 2054, 147 L . Ed. 2d 49 (2000 ) (plurality). The trial court entered an order granting the Hainings petition, finding that visitation was in the best interests of the grandchildren. In addition to establishing a rolling schedule of four-hour visits every 45 days and quarterly overnight visits, the trial court directed that the Koshkos and Hainings attend at least four joint, professional counseling sessions to discuss issues relating to the visitation and how the parties will re-introduce the Hainings back into the grandchildren s lives. The Koshkos unsucce ssfully moved for a new trial and then appealed the judgment. The Court of Special Appea ls affirmed the judgment of the Circuit Court. Koshko v. Haining, 168 Md. App. 556, 897 A.2d 86 6 (2006). The Court of Special Appeals first addressed the Koshkos contention that the Maryland GVS is facially unconstitutional in light of the Troxel decision.3 The interm ediate appellate court relied on the principle of constitutional avoidance and held that the GVS implicitly contains the presumption that parents act in the best interests of their children. Koshko, 168 Md. App. at 570-71, 897 A.2d at 87 4-75. Ne xt, the Cou rt of Specia l Appeals disagreed with Petitioners argument th at the GVS was unconstitutionally applied to them because the best interest standa rd was en gaged w ithout a threshold determination of parental unfitness or exceptional circumstances, suggested as necessary in custody cases by 3 Troxel will be d iscusse d in gre ater deta il, infra Section II.B. 5 McDermott v. Dough erty, 385 M d. 320, 869 A.2d 75 1 (2005). T he interme diate appellate court, relying on this Court s holding in Fairbanks v. McCarter, excused the need for such a threshold finding based on the lesser intrusion on parental rights occasioned by visitation decisions relative to custod y decision s. Koshko, 168 Md. App. at 582, 897 A.2d at 882 (citing Fairbanks, 330 Md. 39, 48, 622 A.2d 121, 125-26 (1993)). The court distinguished McDermott, a third party custody case, from Fairbanks, a third party visitation case, and refused to venture the view that McD ermott impliedly overruled Fairbanks with respe ct to the need for a threshold finding of parenta l unfitne ss or ex ception al circum stances . Koshko, 168 Md. App. at 583-84, 897 A.2d at 882-83. Finally, our appellate colleagues turned to the argument that the trial court had applied incorrectly the presump tion favoring the parents decision, to the benefit of the grandparents. Primarily emphasizing the relationship between the Hainings and their grandchildren, particularly Kaelyn, and the feud between the Hainings and Koshk os, the Cou rt of Specia l Appeals held that there was sufficient evidence to rebut the presumption. Koshko, 168 Md. App. at 586, 897 A.2d at 883. The court also characterized the trial court s questioning of Andrea Koshko concerning her reasons for terminating visits by the Hainings as an obvious effort to give [the] [p]arents a final opportun ity to bolster the rebutted presumption for purposes of the weighing process on best interests , rather than the court applying a presumption to the benefit of the grandparents. Koshko, 168 Md. App. at 586, 897 A.2d at 884. 6 We issued a writ of certiorari, on the petition of the Koshkos, 393 Md. 245, 900 A.2d 751 (2006). 4 II. ANAL YSIS Before we engage the questions concerning the validity of the Maryland GVS, we note some relevant precedential guideposts framing the constitutional landscape and informing our analysis. We do so because the arguments raised by Petitioners and amici necessarily call into question the continuing soundness of certain of our precedents relative to the GVS. We shall note the relevant cases in chronological (oldest to most recent) and evolutiona ry order. A. Maryland Precedent Bearing on the GVS Fairbanks v. McCarter The first occasion had by the C ourt of A ppeals to pa ss on the M aryland GV S was in 1993, some 12 years after the statute was enacted,5 in Fairbanks v. McCarter. Fairbanks arose from a disagreement between a divorced father and maternal grandparents over the 4 Petitioners framed the following questions in their petition: 1. Whether Md. Code Ann. Fam. Law Art. § 9-102 is constitutional under the Due Process C lause of the Fourteen th Amen dment. 2. Whether the lower court unconstitutionally applied Md. Code Ann. Fam. Law A rt. § 9-102 in granting visitation of the minor children to grandpa[r]ents. 5 The original version of the GVS in Maryland, enacted in 1981, was amended in 1993. The provision in the original statute providing that grandparent visitation could only be considered upon the d issolution of the marriag e of the ch ild s parents w as eliminated in 1993. Koshko v. Haining, 168 Md. A pp. 556, 568-69, 89 7 A.2d 866, 87 3-74 (2006). 7 amount of time the m aternal gran dparents sh ould be pe rmitted to visit with the children. Fairbanks, 330 Md. at 43, 622 A.2d at 123. To settle the dispu te, the aggriev ed grand parents filed a petition un der the G VS as it ex isted prior to 1993 (see n.4 supra). Id. The trial court denied the petition because it found that the grandparents had not demonstrated exceptional circumstances militating that visita tion sho uld be o rdered . Fairbanks, 330 Md. at 44, 622 A.2d at 124. Bypassing the Co urt of Special App eals, the Court of Appeals considered whether such circumstances must be found before visitation could be ordered under the GVS. Id. In response to the argument that the GVS should be construed to include a requirement that only exceptional circumstances, present as conditions precedent, may justify an award of visitation to grandpa rents, the C ourt flatly stated tha t nothing in th e plain language of the statute required such a predicate showing. Fairbanks, 330 Md. at 47-48, 622 A.2d at 125. In addition, th e Court he ld that a thresh old show ing of pare ntal unfitnes s is similarly unnec essary. Id. In so doing the Court disapproved of dicta in Skeens v. Paterno, 60 Md. App. 48, 480 A.2d 820 (1984), suggesting that exceptional circumstances were a prerequisite to gran dparen tal visitatio n, as is the case of a custo dy determ ination. Fairbanks, 330 Md. at 47-48, 622 A.2d at 125 (citing Skeens, 60 Md. Ap p. at 61, 480 A.2d at 8 26 ( It may well be, as we said in Boothe, that custody should be granted to a grandparent (as against a parent) only un der excep tional circumsta nces. That may also be true as to grandparental visitation. ) (citation omitted)). Instead, the Court o pined that [v]isitation is a considera bly 8 less weighty matter than outright custody of a child, and does not demand the enhanced protections, embodied in the ex ceptional circumstances test, th at attend custod y award s. Fairbanks, 330 Md. at 48, 622 A.2d at 126. The Fairbanks Court stated that the best in terests of the c hild standard is dispositive, which should be resolved in the sound discretion of the trial court. 330 Md. at 49, 622 A.2d at 126. The Court entrusted trial judges, whom it believed were best suited to evaluate the peculiarities of the individual cases they encounter, to evaluate all relevant factors and circumstances pertaining to the grandch ild s best interests, including a numb er of factors delineated b y the Court. 6 Fairbanks, 330 Md. at 50, 622 A.2d at 126-27. Beckman v. Boggs In Beckman v. Boggs, the Court of Appeals was asked to interpret the GVS in th e context of a paternal grandparents award of visitation challenged by maternal grandpa rents who, with the consent of the natural father, had ad opted their grandchild after the child s mother died. 337 Md. 688, 690, 655 A.2d 901, 902 (1995 ). At issue was whether the 6 The Fairbanks Court proposed that its non-exhaustive list of factors include: the nature and stability of the child 's relationships w ith its parents; the nature a nd substan tiality of the relationship between the child and the grandparent, taking into account frequency of contact, regularity of contact, and amount of time spent together; the potential benefits and detriments to the child in granting the visitation order; the ef fect, if any, gran dparental visitation wou ld have on the child 's atta chm ent to its nu clea r fam ily; the physical and emotional health of the adults involved; and the stability of the child's living and schooling arrangements. 330 Md. at 50, 622 A.2d at 126-27. 9 adoption by the matern al grandpa rents terminated any visitation right to which the paternal grandpa rents laid claim. Th e Court up held the trial c ourt s grant of visitation as it did not abuse its soun d discre tion in e valuatin g the be st interes ts of the child. Beckman, 337 Md. at 703, 655 A.2d at 908. The Co urt excused the trial court s f ailure to mak e findings a s to all of the factors mentioned in Fairbanks, see supra n. 5, because those factors were not intended to be absolute, but merely illustrative of what should be considered. Beckman, 337 Md. at 703-04, 655 A.2d at 909. The Beckman Court ech oed the co nclusion re ached in Fairbanks that the showing of e xceptional circumstance s is not a necessary prerequisite for grandparental visitation. 337 Md. at 692-93, 655 A.2d at 903. Maner v. Stephenson One year after Beckman, the Court of Appeals was again confronted with a grandparent visitation dispute in Maner v. Stephenson, 342 Md. 461, 677 A.2d 560 (1996). Maner was the first GVS case to involve a petition concerning the children of an intact nuclear family. 7 342 Md. at 463, 677 A .2d at 56 0. Fairbanks dealt with a divorced fa ther. Beckman involv ed a w idowe d fathe r and ad optive m aternal g randpa rents. T he Cou rt in Maner read the G VS to allo w courts to grant grandparental visitation petitions regardless of whether the pare nts ma rriage w as intact . Maner, 342 M d. at 467-68, 677 A.2d at 563. It 7 The Maner Court referred to the Supreme Court s definition of nuclear family as essentially a couple and their dependent children. Maner v. Stephenson, 342 Md. 461, 463 n.1, 677 A.2d 560, 560 n.1 (1996) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 500, 97 S. Ct. 1932, 1936, 52 L. Ed. 2d 531 (1 977)). W e surmise th at the term in tact is meant to indicate that the couple had not obtained a divorce. 10 also reiterated the lessons of Fairbanks: namely, that ex ceptional cir cumstances are not required to be show n by petitioning grandpa rents and th at a trial court sh ould exerc ise its discretion in weighing a child s best interests according to the totality of the circumstances. Maner, 342 Md. at 468-70, 677 A.2d at 563-6 4. Maner was also the first grandparental visitation decision sp ecifically to discu ss any presum ption as to a child s best interests: the Court expressly refused to bestow upon the grandparents a rebuttable presumption in favor of their visitation. 342 Md. at 470, 677 A.2d at 564. Wolinski v. Browneller In 1997, the Court of Special Appeals decided Wolinski v. Browneller, involving a quarrel between a single mother and her boyfriend s parents over the visitation sche dule to be used in a m utually sought visitation order. 115 Md. App. 285, 291, 693 A.2d 30, 33. The intermediate appellate court restated many of the conclusions reached in Fairbanks, but with some additional argumentation and authority. The Wolinski court recapitulated that an aw ard of visitation, though a form of temporary custody, 115 M d. App. at 305, 693 A.2d at 39 (quoting Beckman, 337 Md. at 703 n.7, 655 A.2d at 90 8 n.7), is less intrusive u pon the libe rty interests of parents than adoption or custo dy awar ds. Id. (quoting M.L.B. v. S.L.J., 519 U.S. 102, 127, 117 S. Ct. 555, 570, 136 L. Ed. 2d 473 (1996) and Fairbanks, 330 Md. at 48, 622 A.2d at 126). Expanding upon that notion, the court reasoned that, as a m atter of d egree, a court s granting of a grandparent s visitation schedule (as opposed to the grant of visitation in the first instance) over that of the pare nt s preference was even less of an affront to the 11 parent s constitu tional rig hts. Wolinski, 115 Md. App. at 307, 693 A.2d at 40. Intertwined in this analysis was the proposition that grandparents need not show exceptional circumstances to prev ail in their quest f or visitati on. Wolinski, 115 Md. App. at 306, 693 A.2d at 40. The Wolinski court also parroted the Fairbanks decision with respect to the discretion vested in the trial court and the best interests standard as the preva iling guide to decisio ns mad e in this c ontext. Wolinski, 115 Md. App. at 319, 693 A.2d at 46. The Co urt of Spe cial Appe als in Wolinski did offer, however, some additional explication on the operation of the GVS. The court expressly found a constitutional presumption favo ring parents determination of what is in their child s best interests in the context of a grandparental visitation dispute. Facilitated by the decisional law of the U.S. Supreme Court and Maryland Court of Appeals recognizing this presumption in custody and adoption proceedings, the intermed iate appellate court applied a somewhat less commanding presumption to the G VS. Wolinski, 115 Md. App. at 309-12, 693 A.2d at 42-43. Nonetheless, the court stated that the presumption favoring a parent s wishes regarding th eir child (in this case, concerning the visitation schedule) could be o vercome by a trial court s contrary finding of visitation being in a child s best interest, a determination which is entitled to deference upon judi cial revie w. Wolinski, 115 Md. App. at 319, 693 A.2d at 46. The Court of Special Appeals opined that parents rights are protected inasmuch as petitioning grandpa rents bear the burden to produce evidence discrediting a parent s wishes and a trial court cannot [s]imply [] ignore a parent s wishes . . . . Id. 12 Brice v. Brice In July 2000, the Court of Special Appeals filed its opinion in Brice v. Brice, 133 Md. App. 302, 754 A.2d 1132, the first reported Maryland appellate opinion on the issue of grandparental visitation following the U.S. Supreme Court s decision in Troxel. In Brice, the intermediate appellate court, based upon a perceived factual sim ilarity with Troxel, held that the Maryland GVS was unconstitutional as applied to a mother who neither was found to be unfit nor opposed to any visitation by the petitioning grandparents. 133 Md. App. at 309, 754 A .2d at 11 36. Brice also noted Wolinski s conclusion regarding the slighter degree of parental rights infringement present in grandparental visitation schedule disputes. 133 Md. App. at 309-10, 754 A.2d at 1136. In re Tamara R. Although not a grandp arent vis itation ca se, In re Tamara R., 136 Md. App. 236, 764 A.2d 844 (2000), pre sents a third p arty visitation dispute relevan t to our a nalysis he re. In re Tamara R. involved a visitation disp ute betwe en a father and his minor daughter found to be a child in need of assistance (CINA), who was separated from her younger siblin gs still in the custody of the ir father. 136 Md. A pp. at 240-4 1, 764 A .2d 846. T he father o bjected to any visitation by his custodial children with the CINA sibling, citing his fundamental right to contro l the upb ringing of his c hildren outside of state interfer ence. In re Tamara R., 136 Md. App. at 241, 764 A.2d 846. The Court of Special Appeals synthesized the holdings of Fairbanks and Troxel, yielding a conclusion that the Fairbanks factors concerning the best 13 interest determination be viewed through a lens deferring to a parent s wishes: The best way to do this, we believe, is to apply a presum ption that the p arent s decis ion to decline visitation is in the best interest of the child over whom the parent has custody, and to place the burden on the non -paren t seekin g visitatio n to reb ut that pr esump tion. In re Tamara R., 136 Md. App. at 252, 764 A.2d 853. Shurupo ff v. Vockroth In a grand parent c ustody ca se, Shurupo ff v. Vockroth , 372 Md. 639, 814 A.2d 543 (2003), the Court endea vored t o clarify la nguag e from a semin al fami ly law cas e, Ross v. Hoffman, 280 Md. 172, 372 A.2d 58 2 (1977), concerning the application of the best interest of the child stan dard. As w ill be discussed in our summary of the later decided McD ermott v. Dougherty, supra, the Court ultimately was not successful in this attempt to bring some clarity to the muddied w aters of our third party custody jurisprudence. The Shurupo ff Court identified seemingly contradictory verbiage from Ross that describe d the best inte rests standard as always determinative, but later qualified that it is only upon a determination by an 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 proper custodial disposition. 372 Md. at 661, 814 A.2d at 556-57 (quoting Ross, 280 Md. at 178 -79, 372 A.2d at 58 7). Shurupo ff attempted to reconcile this apparent contradiction by stating that what Ross really meant was that parental decisions are entitled to a rebuttable presumption as being in their child s best interests, which presumption may be rebutted, inter alia, by a showing that the 14 relevant parent is, or the parents are, unfit or that exceptional circumstances exist. 372 Md. at 662, 814 A.2d at 557. Herrick v . Wain In Herrick v . Wain, 154 Md. App. 222, 838 A.2d 1263 (2003), another grandparental visitation case, the Court of Special Appeals recited Fairbanks s pronouncement that exceptional circumstances are not required in order to aw ard grand parental visitatio n, as well as the factors to be examined during the application of the best interest of the child standard. 154 Md. App. at 231-32, 838 A.2d at 1268. The Herrick court also quoted approvingly from Wolinski the proposition that petitioning grandparents bear the burden of producing evidence sufficient to satisfy the Fairbanks factors regarding rebuttal of the parental presumption. 154 Md. App. at 238, 838 A.2d at 1272. McD ermott v. D ougherty In McD ermott v. D ougherty , 385 Md. 320, 869 A.2d 751 (200 5), we aga in dealt with a grandparent custody case, as was the context in Shurupo ff. As a foundation for our opinion in McD ermott, we stated th at fit parents stand in a position superior to third parties relative to the constitutional right to the care, custody, and control of their children. 385 Md. at 353, 869 A.2d at 770. We then recanted our earlier attempt in Shurupo ff to explain the language in Ross v. Hoffman regarding the best interest of the child standard, holding instead that: generally, in private actio ns in whic h private third parties are attem pting to gain custody of children of natural parents over the objection of the natural 15 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. McD ermott, 385 Md. at 374-75, 869 A.2d at 783. Thus, absent a showing of parental unfitness or exceptional circumstances, the constitutional right [of parents to the care, custody, and con trol of th eir child ren] is th e ultima te determ inative f actor . . . . McD ermott, 385 Md. at 418, 869 A.2d at 808. Having determined that an examination of whether exceptional circumstances exist should precede the need for a best interests analysis, we embraced the factors enumerated in Ross v. Hoffman for identifying exceptional circum stances . McD ermott, 385 Md. at 419, 869 A.2d at 809. B. The U.S. Supreme Court s Decision in Troxel v. G ranville Although we decide the present case based principally on the ample Maryland authority catalogued above pertaining to grandp arental c ustody an d visitatio n, Troxel occupies a role of some importance insofar as it has influenced, to some degree, the Maryland cases that followed its filing. Troxel resulted in a p lurality opinion authored b y Justice O C onnor, sep arate concurring opinions by Justices Souter and Thomas, and three individual dissenting opinions penned by Justices Stevens, Scalia, and Kennedy. The plurality opinion and the two concurrences concluded that a Washington State third party visitation statute violated the dictates of federal due pro cess. Troxel, 530 U.S. at 68, 120 S. Ct. at 2061 (the plurality and 16 Justice Thomas resting on an as applied basis, with Justice Souter favoring facial invalidation). The Washington statute read: An y person ma y petition the cou rt for visitation rig hts at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances. Troxel, 530 U.S . at 61, 120 S . Ct. at 2057-58 (quoting Wash. Rev. Code § 26.10.160(3) (1994)). A trial court granted grandparental visitation with a single mother s children to her ex-boyfriend s parents. Troxel, 530 U.S. at 60, 120 S. Ct. at 2057. The Washington intermediate appellate court dismissed the paternal grandparents visitation petition on the basis that they lacked proper standing. The grandpa rents appea led to the Wash ington Supre me Co urt. Troxel, 530 U.S. at 62, 120 S . Ct. at 2058. The Washington high court concluded that the grandparents had standing, but invalidated the visitation statute on its face as an affront to the mother s fundamental parental rights in two r espects . Troxel, 530 U.S. at 63, 120 S. Ct. at 2058. First, the court found problema tic the lack of a threshold showing of harm v alidating the s tate s interferen ce in the parent s affairs . Id. Second , because th e statute perm itted any person to maintain a visitation petition solely on the basis of a child s best interests, the state was invested with unfettered discretion to award visitation premised on a single judge s opinion of which was the superior arrang emen t for the child. Troxel, 530 U.S. at 63, 120 S. Ct. at 2058-59. 17 The Supreme Court plurality in Troxel affirmed the judgment of the Washington high court, but did so b ased upo n a differe nt rationale. At the outset, the plurality opinion observed that contained within the bounds of the federal Due Process Clause is a fundamental liberty interest bestowed upon parents concerning the care, custody, and control of their children. Troxel, 530 U.S. at 65-66, 120 S. Ct. at 2059-60. Of the three factors relied upon to support the Court s decision that the Washington statute infringed upon this right, the first wa s that the re was no find ing that t he cust odial pa rent wa s unfit. Troxel, 530 U.S. at 68, 120 S . Ct. at 2061. W hen the trial co urt engage d its analysis of whether the requested grandparental visitation was in the child s best interests, it failed to honor the traditional presumption that a fit parent w ill act in th e best in terest of his or he r child. Troxel, 530 U .S. at 69, 1 20 S. C t. at 2062 . The second factor cited by the plurality opinion was that the trial court erred in not assigning some special weight to the parent s estimation of her child s best interests. Troxel, 530 U.S. at 70, 120 S. Ct. at 2062. As the final fa ctor, the Court noted that the custodial mother never desired to terminate visitation completely, but me rely to redu ce its fre quenc y. Troxel, 530 U.S. at 71, 120 S. Ct. at 2062-63. The four Justice plurality also commented that the trial court s ruling was based upon meager factual findings relating to the children s best interests, which improperly was determined under a presumption in favor of the grandpare nts. Troxel, 530 U.S. at 72, 120 S. Ct. at 2072. The Court then faced a variation on one of the issues now before us: although the resolution of a grandparental visitation petition cannot be made upon the basis of a 18 simple disagreement between the [trial court] and [parent] concerning her children s best interests , the Court d eclined to d ecide wh ether the Due P rocess Cla use require s all grandparental visitation statutes to mandate a threshold showing of harm to the children as a prerequisite to granting visitation. Troxel, 530 U.S. at 72-73, 120 S. Ct. at 2063-64. Indeed, the Court refused to strike down any state grandparental visitation statutes and acknowledged the various case-by-case approaches states take in ruling on visitation petitions, including Maryland s Fairbanks factors. Troxel, 530 U.S. at 73-74, 120 S. Ct. at 2064 (citing Fairbanks, 330 Md. at 49-5 0, 622 A.2d at 12 6-27). The concurring opinions added little to the rationale contained in the plurality opinion. Justice Souter, however, hinted that parents enjoy a presumption that their decisions regarding their children s best interests a re correct, in ligh t of their underlying fundamental parental rights. Troxel, 530 U.S. at 79, 120 S. Ct. at 2067 (Souter, J., con curring) ( It w ould be anomalous, then, to subject a parent to any individual judge s choice o f a child s associates from out of the general po pulation m erely because the judge m ight think him self more enlightened than the child s parent. To say the least . . . parental choice in such matters is not merely a default rule. ). Language in Justice Thomas s concurrence also may be viewed as an endorsement of this presumption favoring fit parents choices regarding their children. Troxel, 530 U.S. at 80, 120 S. Ct. at 2068 ( Here, the State of Washington lacks even a legitimate governmental interest-to say nothing of a compelling one-in secondguessing a fit parent s decision regarding visitation with third parties. ). Further, Justice 19 Thomas posited that the parental right at stake, due to its fundamental nature, would invoke strict scru tiny review under w hich the statute w ould be invalida ted. Id. C. The Present Case As the parents of Kaelyn, Haley, and Aiden, the Koshkos are invested with the fundamental right of parents gen erally to direct and control the u pbringing of their children; the pages of the United States and M aryland Rep orts corrobo rate this point. In re Samone H., 385 Md. 282, 300, 869 A.2d 370, 380 (2005) (stating that [a] parent s interest in raising a child is, no do ubt, a fundamental right, recognized by the United States Supreme Court and this Court, and catalog uing cases ); In re Yve S., 373 Md. 551, 565-66, 819 A.2d 1030, 103839 (2003); Boswe ll v. Boswe ll, 352 Md. 204, 217 -18, 721 A .2d 662, 66 8-69 (199 8); Sider v. Sider, 334 Md. 512, 527 n.12, 639 A.2d 10 76, 1084 n.12 (199 4); accord Troxel, 530 U.S. at 65-66, 120 S. Ct. at 2060 (stating that we have reco gnized the fundam ental right of parents to mak e dec ision s con cern ing the ca re, cu stod y, and co ntrol of their chi ldren, and cataloging cases); Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2 d 599 (1982); Parham v. J. R., 442 U.S . 584, 602, 9 9 S. Ct. 2493, 2504, 61 L . Ed. 2d 101 (197 9); Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1213, 31 L. Ed. 2d 5 51 (1972 ). This liberty interest provides the constitutional context which looms over any judicial rumination on the question of custody or visitation. McD ermott, 385 Md. at 352-53, 869 A.2d at 770; Wolinski, 115 M d. App . at 302, 6 93 A.2 d at 38. G randpa rents, on the othe r hand, do not enjoy a constitutionally recognized liberty interest in visitation with their grandchildren. 20 L.F.M. v. Dep t of Social Servs., 67 Md. App. 379, 386-88, 507 A.2d 1151, 1154-55 (1986). Rather, wha teve r righ t they may h ave to such visitation is solely of statutory origin implemented through judicial order. Parents and grandparents, therefore, stand on unequal footing in dispu tes ove r visitatio n with m inors. See Mc Dermo tt, 385 Md. at 353, 869 A.2d at 770. As a natural incident of possessing this fundam ental liberty interest, the Koshkos a re also entitled to the long-settled presumption that a parent s decision regarding the custody or visitation of his or her child w ith third p arties is in the child s best in terest. McD ermott, 385 Md. at 423, 869 A.2d at 811; Monroe v. Monroe, 329 Md. 758, 781 n.4, 621 A.2d 898, 909 n.4 (1993) (quoting Ross v. Pick, 199 Md. 34 1, 351, 86 A.2d 4 63, 468 (1952) ( W here parents claim the cu stody of a chil d, there is a prima fac ie pres ump tion that t he ch ild'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. )); Ross v. Hoffman, 280 Md. at 177-78, 372 A.2d at 586-87; DeGrange v. Kline, 254 Md. 240, 242-43, 254 A.2d 353, 354 (1969); accord Troxel, 530 U.S . at 69, 120 S . Ct. at 2062. This presumption is premised on the notion that the affection of a parent for a child is as strong and potent as any that springs from human relations and leads to desire and efforts to care properly for and raise the child, w hich are gre ater than an other wo uld be likely to display. Melton v . Connolly , 219 Md. 184, 188, 148 A.2d 387, 389 (1959). The Koshkos here protest that their parental rights and the attendant presumption favoring parental 21 decisions relating to their children s best interests a re disregard ed both by the express terms of § 9-102 of the Family Law Article, as well as its application by the trial court in the present grandparental visitation dispute. 1. Facial Validity of the Maryland GVS The M aryland GV S simply prov ides that gran dparents may petition for reaso nable visitation and empow ers equity courts to grant such petitions if gra ndparen tal visitation is in the best interests of the child. Family Law § 9-102. Attacking the facial constitutiona lity of the GVS, the Koshkos argue that the statute contravenes Troxel s interpretation of the due process safeguards that must accompany a grandparental visitation statute. The Koshkos point to Troxel s condemnation of the Washin gton State G VS for its lack of any express acknowledgment of the parental presumption or assignment of special weight to parents estimations of their children s best interests. 530 U.S. at 67, 120 S. Ct. at 2061 ( [The Washington statute] contains no requirement that a court afford the pare nt s decision any presumption of validity or any weight whatsoever. Instead, [it] places the b estinterest determination solely in the hands of the judge. ). 8 This, how ever, is an inc omplete extraction of Troxel s holding o n the point. Petitioners overlook the plurality s observation that the Washington Supreme Court refused to apply a judicial gloss to the Washington 8 In a different context, we, too, have observed that the best interest standard, by itself, may be inadequa te to protect c onstitutio nal liber ties. See Mack v. Mack, 329 Md. 188, 22122, 618 A.2d 744, 760-61 (1993) (holding tha t, in determina tions of w hether to term inate such life support, a best interests standard alone would not adequately protect the lives of those in persistent vegetative states whose wishes regarding the termination of hydration and ventilation is unknown ). 22 statute so as to engraft a parental presumption in order to remedy the statute s otherwise breathtak ingly broad provisions. Id. ( The Washington Suprem e Court ha d the oppo rtunity to give § 26.10.160(3 ) a narrower reading , but it declined to do so. ). The Troxel Court, for that reason, was bound by the strictures of federalism to abide by the Washington Supreme Court s interpretation of the s cope o f its state s tatute. See Wisconsin v. Mitchell, 508 U.S. 476, 483-84, 113 S. Ct. 2194, 2198-99, 124 L. Ed. 2d 436 (1993) ( There is no doubt that we are bound by a state court s construction of a state statute. ). We shall take a different tack than our Washington colleagues. As the Court of Special Appea ls noted, the M aryland GV S fairly and ea sily may be supplemented by judicial interpre tation with an inferred presumption that parental decisions regarding their children are valid.9 Koshko, 168 Md. App. at 570-71, 897 A.2d at 874-75. This superimp osition of the parental pre sumption onto the GVS is permitted by the so-called canon of constitutional avoidance ,10 which provides that a statute will be construed so as to avoid a co nflict with the Constitution whene ver that cou rse is reasonab ly possible. In re James D., 295 Md. 314, 327, 455 A.2d 966, 972 (1983) (citing Deems v. W. Md. Ry. Co., 247 9 Indeed, the Court of Special Appeals, nine years prior, read the presumption into the GVS, albeit one not of equal strength as the presumption in custody and adoption cases. Wolinski, 115 Md. App. at 312, 693 A.2d at 43. 10 This is the name given by U .S. Suprem e Court an d other fed eral courts to the tool for choosing between competin g plausible interpretations of a statutory tex t, resting on the reasonab le presumption that Congress did not intend the alternative which raises serious constitutional doubts. Clark v. Martinez, 543 U.S. 371, 381-82, 125 S. Ct. 716, 724-25, 160 L. Ed. 2d 734 (2 005). 23 Md. 95, 113, 23 1 A.2d 5 14, 524 (1 967)); County Comm rs v. Meekins, 50 Md. 28, 39-40 (1878). This canon is animated by the axiomatic principle that statutes carry a strong presumption of co nstitutionalit y. Ayres v. Townsend, 324 Md. 666, 675, 598 A.2d 470, 475 (1991); Edgewood Nursing Home v. Maxw ell, 282 Md. 422, 427, 384 A.2d 748, 751 (1978 ); Cochran v. Preston, 108 Md. 220, 232, 70 A. 113, 115 (1908). We have said that one attacking [the] validity [of a law passed in the exercise of police power] has the burden of affirmative ly and clearly estab lishing its invalidity; every intendment is in favor of the validity of the statute where th ere is a substantial relationship between its object and the means employed to attain that object. Aero M otors, Inc. v. M otor Vehic le Admin ., 274 Md. 567, 589, 337 A.2d 685, 699 (1975). Th us, a party challen ging the fa cial validity of a statute must establish that n o set of circums tances e xist und er whic h the A ct wou ld be va lid. United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 2d 697, 707 (1987). The Koshkos have not persuaded us sufficiently to defeat the presumption weighing in favor of the constitutionality of the Maryland GVS. The only apparent indicia to which the Koshk os point is a lac k in the legislative history of the GVS of a articulated compelling governmental interest. A s we ex plain, infra, the General Assembly rightfully had in mind the compellin g state interest of the welfare of children by providing a means for grandpa rents to maintain visitation with them under certain circumstances. The Koshkos argument that 24 the presence of a presumption in favor of their decision on the matter of grandparental visitation is constitutionally mandated belies their facial challenge. We shall do here as the Court of Special Appeals did: to save the statute from invalidation, we read in to the GVS the parental presumption both as mandated by substantive due process and traditionally obser ved in M aryland com mon law . Indeed, this C ourt, in order to bring statutes into comp liance with constitutional principles, previously has applied limiting constructions to enactments t hat wo uld oth erwise sweep too bro adly. See, e.g., Galloway v. State, 365 Md. 599, 627, 634, 781 A.2d 851, 867, 871 (2001) (redeeming a harassment law from a void-for-vagueness challenge by reading in a reasonable person standard ); Becker v . State, 363 Md. 77, 90-92, 767 A.2d 816, 823-24 (2001) (reading a drug nuisance abatement statute providing for equitable relief to exclude the razing of a building without just compensation to the owner to avoid possible constitutional infirmity of the statute); Schochet v. State, 320 Md. 714, 725-35, 580 A.2d 176, 181-86 (1990) (interpreting the law criminalizing fellatio as inapplicable to consensual, noncommercial heterosexual activity in the privacy of the home, thereby avoiding having to pronounce whether applying the statute to such activity was constitutional); Lucky Stores, Inc. v. Bd. of Appeals , 270 Md. 513, 529, 312 A.2d 758, 767 (1973) (stating that the words [ need and general neighborhood used in a zoning statute] have rece ived a judic ial gloss, suff iciently definite to protect th e peo ple a gain st any arbitrary or unreasonable exercise of power in zoning cases to uphold the constitutio nality of the statu te), discussing Neuman v. City of Baltimore, 25 251 Md. 92, 246 A.2d 583 (19 68); Sanza v. Md. Bd. of Censors, 245 Md. 319, 341, 226 A.2d 317, 329 (1967) (construing a film censo rship statute, bro ad on its fac e, to apply only to films and views to be shown for an admiss ion charge, e xcept wh en show n by public associations or institutions w hich do no t operate fo r profit, so as to bring the statu te within federal constitutional limits); see also P ack Shac k, Inc. v. How ard Cou nty, 377 Md. 55, 88, 832 A.2d 170, 190 (199 3) (Harrell, J., co ncurring in part and dissenting in part). M oreover, other states have similarly construed their grandparental visitation statutes to comply w ith due process and the dictates of Troxel. See, e.g., Glidden v. Conley, 820 A.2d 197, 204-05 (Vt. 2003) (reading Vermont s GVS, which is very similar to that of Maryland, as carrying with it a parental presumption and requiring a finding of either parental unfitness or special circumstances or harm to the child to o vercome the presum ption); Blixt v. Blixt, 774 N.E.2d 1052, 1060 (Mass. 2002) (supplying parental presumption to Massachusetts GVS to preserve it from f acial inv alidation ), cert. denied, 537 U.S. 1189, 123 S. Ct. 1259, 154 L. Ed. 2d 1022 (2003); McGovern v. McG overn, 33 P.3d 506, 511-12 (Ariz. Ct. App. 2001) (construing Arizona GVS to be consistent with du e process b y requiring cou rt to apply rebuttab le parental presumption). Having construed the Maryland GVS to include the application of the parental presumption, the statute is saved from per se constitutional infirmity. Accordingly, we agree with the Court of Special Appeals on the question of the facial validity of Family Law § 9102. 26 2. Parental Unfitness or Exceptional Circumstances Petitioners also argue that the statute is unconstitutional as applied to them, again for want of due process. The Koshkos contend that the trial court and Court of Special A ppeals erred by not requiring the grandp arents to dem onstrate that th e Koshk os were u nfit parents or that exceptional circumstances existed that counsel in favor of grandparental visitation before the presumption in favor of the wishes of the custodial parents is overcome. Petitioners marshal the holdings of Troxel and McD ermott to support th eir contention that the best interest of th e child language of § 9-102 should be infused with the unfitness/exceptional circumstances test. The Co urt of Spe cial Appe als rejected this argument on a largely technical ground. Because McD ermott was a c ustody ca se, the intermediate appellate court refused to extend McD ermott s holding that there must be a threshold finding of parental unfitness or exceptional circumstan ces before proceeding to the best interests inquiry. Koshko, 168 Md. App . at 583-84, 897 A.2d at 882-83. The co urt instead cleaved to Fairbanks, a pre-Troxel grandparental visitation case w hich did not require such threshold findings, because Fairbanks was more direct precedent than, and had not been expressly overru led by, McD ermott or other decisions of this Co urt. Id. This course of action by the Court of Special Appeals, under the principles of stare decisis , was a correct one.11 We, however, shall consider this point anew. 11 Halliday v. Sturm, Ruger & Co., Inc., 138 Md. App. 136, 169 & n.9, 770 A.2d 1072, 1091-92 & n.9 (20 01); Banks v. Iron Hustler Corp., 59 Md. App. 408, 423, 475 A.2d 1243, 1250 (1984) ( W hatever m ay be our fee ling about whether Maryland s hould con tinue to (contin ued...) 27 We begin our analysis of this due process argument mindful that visitation is a species of custod y, albeit fo r a more limited d uration . Beckman, 337 Md. at 703 n.7, 655 A.2d at 908 n.7 ( Visitation, which is considere d to be a form of temporary custody, and custody determinations are generally governed by the same principles. ); Wolinski, 115 Md. App. at 301, 693 A.2d at 38 (acknowledging the similarity of visitation and custo dy); see also G estl v. Frederick, 133 Md. App. 216, 236, 754 A.2d 1087, 1098 (2000) (quoting In re Thompson, 11 S.W.3d 9 13, 918-1 9 (Tenn. C t. App. 1999)) ( To allow the courts to award visitation - a limited form of custody - to a third person would n ecessarily impa ir the parents rig ht to custody and contro l. ); see generally Taylor v. Taylor, 306 Md. 290, 297, 508 A.2d 964, 967 (1986) ( With respect to physical custody, there is no difference between the rights and obligations of a parent having tem porary custody of a child pursuan t to an order of shared physical custody, and one having temporary custody pursuant to an a ward of visitation. ); Jackson v. Fitzgerald , 185 A.2d 724, 726 (D.C. 1962) ( The right of visitation derives from the right to custody. The court could not award the plaintiff [grandmothe r] visitation rights without impinging o n the father s vested right of cu stody. ). The Court in Fairbanks declared that, with regard to substantive due process rights, [v]isitation is a considerably less weighty matter than outright custody of a child, and does 11 (...continued) adhere to this rule, however, w e can neither overrule no r ignore the decisions of o ur Court of Appea ls. ); see gener ally Chesap eake & Cu rtis Bay R.R. Co. v. Richfield Oil Corp., 180 Md. 192, 194, 23 A.2d 677, 678-79 (construing Maryland Constitution Article 4, § 15 regarding the fina lity of Co urt of A ppeals decisio ns), cert. denied, 316 U.S . 698, 62 S . Ct. 1297, 86 L. Ed . 1768 (1942). 28 not demand the enhanced protections, embodied in the exceptional circumstances test, that attend custody awards. Fairbanks, 330 Md. at 48, 622 A .2d at 126; see also Wolinski, 115 Md. App. at 305-06, 693 A.2d at 39-40. The Court of Special App eals in the present case drew upon this language in reaching its conclusion that the intrusions on parental rights are not comparable as betwe en cust ody and visitation . Koshko, 168 Md. App. at 583-84, 897 A.2d at 882. Maryland appellate courts thereafter repeated Fairbanks s refrain, rejecting the need to demon strate excep tional circum stances in third party visita tion cas es. Maner, 342 Md. at 468, 677 A.2d at 563; Beckman, 337 Md. at 692-93 , 655 A.2d at 903; Herrick, 154 Md. App. at 231, 838 A.2d at 12 68; Wolinski, 115 M d. App . at 306, 6 93 A.2 d at 40. The Court of Special Appeals in the present case also relied on the fact that the Sup reme Court declined the opportunity to declare in Troxel whethe r the Due Process C lause require s all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. Koshko, 168 Md. App. at 565, 897 A.2d at 871 (quoting Troxel, 530 U.S. at 73, 120 S . Ct. at 2064). There is no dispute that the grant or m odification of visitation involves a lesse r degree of intrusion on the funda mental righ t to pare nt than th e ass ignm ent o f cus tody. 12 We except from this notion, however, that, because of this conceptualization, visitation somehow ranks lower on the scale of values such that its determination does not require the application of 12 As the Court of Special Appeals noted below, the amount of time the Hainings would spend w ith their grandchildren outside the presence and control of the Koshkos comprised a mere one percent of the time per calendar quarter. Koshko, 168 Md. App. at 584, 897 A.2d at 882. 29 stringen t tests as is the case with cu stody. Koshko, 168 Md. App. at 584, 897 A.2d at 882. In other words, although there may be a differenc e in the deg ree of intrusio n, it is not a difference of constitutio nal magn itude. Visitatio n, like custody, intrudes upon the fundamental right of parents to direct the care, custody, and control of their children. Though visitation decisions granting such privileges to third parties may tread more lightly into the protected grove of pare ntal righ ts, they tread noneth eless. A s will be show n, infra, the weight of the footfalls on that territory is sufficiently direct and substantial as to require rigorous scru tiny. In matters implicating state interference with a fundamental right we g enerally apply the strict scrutiny sta ndard. In re Yves S., 373 Md. at 569 , 819 A.2d at 104 1(quoting Wolinksi, 115 Md. App. at 301, 693 A.2d at 37) (stating that, in the substantive due process context, strict scrutiny is applied when a statute affects the curtailment of fundamental rights). Despite this general principle, this Court an d the Cou rt of Specia l Appeals occasiona lly invoke dicta in Zablocki v . Redhail, 434 U.S. 374, 98 S.Ct 673, 54 L. Ed. 2d 618 (1978)13 and language from a dissent authored by Justice O Connor in City of Akron v. Akron 13 In Zablocki, the U.S. Supreme Court said: By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scru tiny. To the co ntrary, reasonab le regulations that do not sign ificantly interfere with decisio ns to enter into the marital rela tionship m ay legitimately be imposed. (contin ued...) 30 Center for Reproductive Health, Inc., 462 U.S . 416, 462-6 3, 103 S. C t. 2481, 2509-10, 76 L. Ed. 2d 68 7 (1983), a s license to red uce the level of scrutiny applied in certain cases involving state interference with fundamental liberty interests protected by due process. To be precise , there exists in precedent a principle of reserving strict scrutiny review only for cases where fundamental rights have suffered signif icant inte rferenc e . Hill v. Fitzger ald, 304 Md. 689, 701, 501 A.2d 27, 33 (1985) ( Under . . . substantive due pro cess analysis [concerning the righ t to acce ss to the c ourts], strict scrutiny will only be invoked in those cases where la ws significantly interfere with a fundam ental right. ) (emphasis added ); Hornbeck v. Somer set Coun ty Bd. of Educ., 295 Md . 597, 458 A .2d 75 (19 83) ( [E]v en if education be deem ed a f undame ntal r ight in M arylan d, strict sc rutin y wou ld on ly be appropriate if a significant deprivation of that right o ccurs. ) (em phasis add ed); Wolinski, 115 Md. App. at 303-05, 693 A.2d at 33-39; see also Attorney General v. Waldron, 289 Md. 683, 711, 426 A.2d 92 9, 944 (19 81) ( Th e second category of sta tutes which activate heightened scrutiny are thos e which a ffect imp ortant perso nal interests or work a significant interference with liberty or a d enial of a b enefit vital to the individual. ) (quoting L AURENCE T RIBE, A MERICAN C ONSTITUTIONAL L AW 1090 (19 78) (emp hasis added)). Nonetheless, because we conclude that the Maryland GVS may work a direct and 13 (...continued) 434 U.S. at 3 86, 98 S . Ct. at 68 1, quoted by Wolinski, 115 Md. App. at 305-06, 693 A.2d at 39. 31 substantial interference with the Koshkos s fundamental right to parent, we apply strict scrutiny. We explain. It appears that the decisions advancing this significant interference test, particularly Wolinski, tended to minimize the underlying principles informing the test. The Supreme Court s caveat in Zablocki that heightened scrutiny would not be applied to all regulation of the fundamental right to marry was qualified in a following sentence, which was not quoted in Wolinski. The Supreme Court stated that to obtain strict scrutiny of interference with a fundamental right, the state m ust interfere directly and sub stantially with that right. Zablocki, 434 U .S. at 387, 98 S. Ct. at 681. The Zablocki Court w ent on to elu cidate this principle of direct an d substantia l interferenc e by distinguish ing its holding from another marriage imped iment c ase, Califano v . Jobst, 434 U .S. 47, 9 8 S. Ct. 9 5, 54 L . Ed. 2d 228 (1977). In Jobst, the Court upheld sections of the Social Security Act providing, inter alia, for termination of a dependent child s benefits up on marriag e to an indiv idual not en titled to benefits under the Act. As th e opinion f or the Cou rt expressly note d, the rule terminating benefits upon marriage was not an attempt to interfere with the individual s freedom to make a decision as important as marriage. The Social Security provisions placed no direct legal obstacle in the path of persons desiring to get marrie d, and . . . there w as no evid ence that the laws significantly discourag ed, let alone made practically impossible, any marriag es. Zablocki, 434 U.S. at 387 n.12, 98 S. Ct. at 681 n.12 (quoting Jobst, 434 U.S . at 54, 98 S. C t. at 99) (citation omitted). Because the laws at issue in Jobst presented neither direct nor substantial inter fere nce w ith th e right to marry, the Court upheld the laws und er rational ba sis 32 review. See Jobs t, 434 U.S. at 56, 98 S. Ct. at 100-01. The Zablocki Court, however, struck down as a direct and substantial intrusion on the right to marry, under strict scrutiny, 434 U.S. at 387-88, 98 S. Ct. at 681-82, a Wisconsin statute which prohibited a class consisting of noncusto dial parents of minor children subject to a support order from marrying absent a court order, which could only be obtained upon a showing of compliance w ith their support obligation and also that the child would not become a public charge. 434 U.S. at 375, 98 S. Ct. at 675. In its rationale, the C ourt said that u nder the statu te no Wisconsin resident in the affected class may marry in Wisconsin or elsewhe re withou t a court order , and marria ges contrac ted in violation of the statute are both void and punishable as criminal offenses. Some of those in the affected class, like appellee, will never be able to obtain the necessary court order, because they either lack the financial means to meet their sup port obligations or cannot prove that their children will not become public charges. These persons are absolutely prevented from getting married. Many others, able in theory to satisfy the statute s requirements, will be sufficiently burdened by having to do so that the y will in effect be coerced into forgoing their right to marry. And even those who can be persuaded to meet the statute s requirements suffer a serious intrusion into their freedom of choice in an area in which w e have he ld such fre edom to b e fundam ental. Zablocki, 434 U.S. at 387, 98 S. Ct. at 681. Because the difference between the directness and substantiality of the imped iments to marriage d iscussed in the Jobst and Zablocki opinions is critical, we should co nsider more closely the holdings. In Jobst, the challenged law eliminated a dependent child s b enefits when the parent married a person ineligible for such benefits. Th e Court rea soned tha t this loss of benefits was not a direct bar to entering matrimony, but rather an incidental consequence of it. Furthermore, whatever deterrent effect the law may have had on marriage 33 was not substantial enough truly to dissuade couples from marrying, including the individual challenging the law. In Zablocki, by contrast, the assailed statute required those in the designated class wishing to marry first to seek permission from a cou rt upon certa in affirmative showing s that, effectiv ely, may have be en impos sible to dem onstrate. Th us, this requirement placed an impermiss ible direct lega l obstacle between the members of the class and the fun dame ntal righ t to marr y. The Court further noted that even for those members of the class capable of enduring the expense and tribulation of making the required showings, the requirement that they were req uired to do so at all was an unacceptable imposition on the right of choice with respect to marriage. Thus, in the decision whether to apply strict scrutiny, it is the underlying notion of direct and substantial interference that should guide and inform courts on the notion of the significance of an interference. The k ey inquiry centers on the manner and extent to which the right is interf ered with by the state. That is, in any given context, is the right subject to direct and substantial interference? The sentiment e xpressed b y Maryland co urts heretofore, instigated no doubt by the language in Fairbanks, that visitation matters deserve less scrutiny than custody matters is, upon refle ction, incorrec t.14 We sha ll not perpetu ate this notion further, particularly in the wake of the Troxel Court s strong affirmation of parental 14 Koshko, 168 Md. App. at 583-84, 897 A.2d at 882; Wolinski, 115 Md. App. at 306, 693 A.2d a t 40. Wolinski further suggests that it is that the parental presumption in visitation cases is wea ker than the pres umptio n that op erates in custod y and ado ption d isputes . . . . 115 Md. App. at 317, 693 A.2d at 45. 34 rights in the grandparental visitation context. For the purposes of constitutional analysis, parental autonomy is encroached upon equally by visitation matters as it is with custody disputes when the state interference is direct and substantial . The Supreme Court s decision in the consolidated cases titled under Lyng v. Castillo, 477 U.S. 635 , 106 S. Ct. 2 727, 91 L . Ed. 2d 52 7 (1986), illustrates this direct and substantial principle in another familial privacy case.15 Castillo presented an equal protection challenge to an amendment of the Food Stamp Act changing the definition of household for benef it amount purposes so as to exclude extended family members or groups of unrelated persons living together unless those persons purchased food and prepared meals together. 477 U.S. at 636, 106 S. Ct. at 2728. The challenge was mounted by individuals who bought and prepared f ood as sep arate groups who would, as a result of the amendment to the Act, either lose entirely or experience a reduction in their food stamp benef its. Castillo, 477 U.S. at 637, 106 S. Ct. at 2728-29. The challengers argued that the 15 The concept of family privacy finds its exp ression in the due proc ess right of p arents to the care, custody, and control of their children. In re Blessen H., 392 Md. 684, 693, 898 A.2d 980, 985 -86 (2006 ); In re Yve S., 373 Md. 551, 565-68, 819 A.2d 1030, 1038-40 (2003). The right to privacy relating to choices in the realm of family life is de eply embedded in Maryland and federal constitutional jurisprudence. In Neville v. Sta te we relied on the general right to privacy in ma tters pertaining to the fam ily and the hom e as noted in Paris Adult Theatre I v. Slaton. 290 Md. 364, 375, 430 A.2d 570, 575 (1981) (citing Slaton, 413 U.S. 49 , 65, 93 S . Ct. 262 8, 2639 , 37 L. Ed. 2d 446, 462 (1973). In Department of Social Services v. Clark, we recognized the Supreme Court precedent of Santosky v. Kramer for the proposition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. 296 Md. 190, 196, 461 A.2d 1077, 1080 (1983) (citing Santosky, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982)) (em phasis added) (citations om itted). 35 amendment unconstitutionally infringed on familial privacy16 by forcing the extended family members or unrelated individuals to either move apart from their c onfedera tes in order to reinstate the previous benefit levels allotted to them or to continue to live together at the sufferance of dim inished or term inated b enefits . Id. The Supreme Court upheld the amendment under r ational b asis revi ew. Castillo, 477 U.S. at 639, 106 S. Ct. at 2730 . In support of its decision not to apply strict scrutiny, the Court applied Zablocki because the amendment did not imp ose direct a nd substan tial interferenc e with the families privacy rights. Castillo, 477 U.S. at 638, 106 S. Ct. at 2729. The Court explained: The household definition does not order or prevent any group of persons from dining together. Indeed, in th e overw helming m ajority of cases it probably has no ef fect at all. It is exceedingly unlikely that close relatives would c hoose to live apart simply to increase their allotment of food stamps, for the cost of s eparate housing w ould almost certainly exceed the incremental value of the additional stamps. Castillo, 477 U.S. at 638, 106 S. Ct. at 272 9. The am endmen t simply presented a choice of options to families, attached to which were divergent consequences; it mandated nothing. Any adverse consequences embodied by the decrease or termination of food stamps was attributable to the choic es of the fa milies and w as, thus, incide ntal and ind irect in nature. Further, in the like ly event that the amendment did not deter the families from living 16 The Court characterized the specific right implicated in Lyng v. C astillo as the liberty interest in setting fam ily living arrangements . 477 U.S. 635, 637, 106 S. Ct. 2727, 2728-29 (1986). The Co urt of Special Appeals refers to this right as the fam ily life liberty interest . L.F.M. v. Dep t of Social Servs., 67 Md. App. 379, 386, 507 A.2d 1151, 1154 (1986). 36 together, the financial detriment accompanying the choice would be eclipsed by the cost of maintaining two or m ore separa te residences. The Food Stamp Act amendment in Castillo and the statute terminating dependent children s benefits in Jobst share a critical com mon ality: they both affected indirect impositions on fundamental rights and , accordingly, were not subject to strict scru tiny. 17 We are unwilling to say the same about the Maryland GVS called into question before us in the present case. The Maryland GVS has an unmistakable and intended direct effect on the fundamental right to parent. Family Law § 9-102 a uthorizes g randparen ts to institute, and c ourts to resolve, challenges to parents decisions concerning to whom their children will be exposed and for wh at durati on by w ay of visita tion. A lthough the statute does n ot bar abso lutely parents from exercising their rights, as did the law struck down in Zablocki, the GVS does 17 A similar case arose in the term following the Castillo decision dealing with a Deficit Reduction Act provision that changed welfare rules to require single mothers to include in their family unit for benefit allotment purposes children for whom support payments were b eing m ade. Bowen v. Gilliard, 483 U.S. 587, 589-90, 107 S. Ct. 3008, 3011, 97 L. Ed. 2d 485 (1987). Litigants challenged the constitutionality of the change, which reduced the family unit s benefit am ount if the c hild subject to the support aw ard stayed in the househo ld, thus interfe ring with fam ily priv acy. The Supreme Court upheld the provision under rational basis review after stating tha t just because some fa milies may de cide to modify their living arrangements in order to avoid the effect of the amendment, does not transform the amendment into an act whose design and direct effect are to intrud[e] on choices concernin g family living arrangements. Bowen, 483 U.S. at 601-02, 107 S. Ct. at 3017-18. In a footnote, the Bowen Court defended the legislation s indirect effect of inspiring some families to live apart by noting that many welfare provisions may have unintended consequences that do not call into question their constitutionality. 483 U.S. at 602, 107 S. Ct. at 3017. The challenges to parental autonomy created by the Maryland GVS are not uni ntende d. To the contrary, the law s only logical pu rpose is to of fer grandp arents the opportunity to dispute a parent s decision regarding visitation. 37 more than set out dispassionately the conseq uences of one p arental decision or another. Rather, the statute permits grandparents seeking the initiation or increase of visitation with their grandchildren to intercede directly in parental determinations of their children s best interests. Instead of merely creating a consequence of the parents exercise of their right to control their child, the statute exposes the very parental decision-making process relating to the exercise of that right to the challenge of disgruntled grandparents. As in Zablocki, only a favorable court order finally resolves such a dispute and affirms the validity of the Koshk os exercise of their fun damenta l right. This direct interference is also substantial in nature . Although , as we pre viously acknowledged in this opinion, the degree of intrusion upon parental rights created by visitation matters is less than that of custody matters, the intrusion perpetrated may be sufficiently substantial to offend due process. The cost of two and one-half years of litigation; the forced interaction between the feuding Koshkos and Hainings through the vehicle of court-ordered counseling; the compromise of the Koshkos parental autonomy; and the time, however short, that the children will be outside of the care, custody, and control of the Koshkos are disruptions impos ed by the Circuit C ourt s v isitation o rder. Maner, 342 Md. at 470677 A.2d at 564 ( [W]e have recognized that judicial supervision of familial relationships is disruptive to the lives of children. ) (citing In re Adoption No. 10941, 335 Md. 99, 120, 642 A .2d 201, 212 (199 4)); Fairbanks, 330 Md. at 50, 622 A.2d at 127 ( The 38 trial court should also be alert to the psychological toll the visitation dispute itself might exact on a child in the m idst of contesting adults. ). Having determined that the GVS imposes a direct and substantial interference upon the Koshk os exercise of their pare ntal rights w ith respect to the visitation with their children by the Hainin gs, we are bound to apply strict judicial scrutiny. Under strict scrutiny, a statute may be validated only if it is deemed to be suitably, or narrowly, tailored to further a compelling state inte rest. Ehrlich v. Perez, 394 Md. 691, 717, 908 A.2d 12 20, 1244 (2006 ); Montrose Christian Sch. Corp . v. Walsh, 363 Md. 565 , 586, 770 A.2d 1 11, 123 (2001); Murphy v. Edmonds, 325 Md. 342, 356, 601 A.2d 102, 109 (1992); Broadwater v. State, 306 Md. 597, 603, 510 A.2d 583, 585 (1986). There can be no legitimate debate as to the sufficiency of the State s compe lling interests he re, chief of w hich is the overarching role as parens patriae to ensure the well-being of M aryland s children . See Shur upoff, 372 Md. at 657-58, 814 A.2 d at 554. T he GV S provide s a means for grand parents to play a vital role in the development an d happiness of a c hild s life when circum stances are such that court action is warranted and needed to enforce that role pro perly. See Mc Dermo tt, 385 Md. at 430, 869 A.2d at 816 ( Grandparents contributions do not go unnoticed and their efforts likely accrue to the benefit of the grandchildren. ); Frase v. Barnhart, 379 Md. 100, 122-23, 840 A.2d 114, 127 (2003) ( In the plurality Opinion joined by three other members of the Court, Justice O Connor acknowledged the important role that grandpa rents and other third parties often play in children s lives . . . . ) (citing Troxel, 530 U.S. at 64, 120 S. Ct. at 2059, 147 39 L. Ed. 2d at 5 6); see also Wolinski, 115 Md. App. at 317, 693 A.2d at 45 (discussing the State s interest in fostering beneficial grand parent-grandchild relationships. ). Th e State s interest in encouraging the s alutary contribu tions grand parents m ake to the live s of their grandchildren is clearly a compelling one. There is, however, reason to doubt the narrow tailoring of th e statute to vin dicate the S tate s interest. As we have already discussed, the GVS permits a direct and substantial burden on the exercise of parenta l rights co ncernin g the co ntrol of their chi ldren. The chie f safegua rd in place to protect parental rights in a grandparental visitation dispute is the presumption favoring a parental decision, which first must be rebutted before any inquiry into the child s best interests. The parental presumption we engrafted onto the GVS saves it from per se invalidation under Troxel, but it is not sufficie nt, by itself, to preserv e the constitu tionality of the statute. Although the presumption elevates a Maryland court s decision above the simple disagreement between the [trial court] and the [parents] concerning [ their] children s best interests, disparaged by the Supreme Court in Troxel, 530 U.S. at 72, 120 S. Ct. at 2063, it does not do enough to protect parents from undue inte rference w ith their rights. Fit parents, who are presum ed to ac t in their c hildren s best in terests, McD ermott, 385 Md. at 422, 869 A.2d at 811 (citing Parham, 442 U.S. at 602, 99 S. Ct. at 2504), nonetheless may be hailed into court to defend their decisions absent any showing that they are unfit and without any requirement that the grandparents challenging the parental decision plead any exceptional circumstances that ma y tend to o verride the pare ntal pres umptio n. A proceeding 40 that may result in a court m andating that a pare nt s c hildren s pend tim e with a th ird party, outside of the parent s supervision a nd against the parent s w ishes, no matter how tem porary or modifiable, necessitates stronger protections of the parental right. The importance of parental autonomy is too great and our reluctance to interfere with the private matters of the family too foreboding,18 whether it be in matters of custody or visitation, to allow parental decision-making to remain that vulnerable to frustration by third parties. As we noted in McD ermott, the constitutional right is the ultimate determinative factor in third party custody cases where parents are fit and no extraordinary circumstances are presen t. McD ermott, 385 Md. at 418, 869 A.2d at 808. Thus, if third parties w ish to disturb the judgment of a parent, those third parties must come before our courts possessed of at least prima fac ie evidence that the parents are either unfit or that there are exceptional circumstances warranting the relief sought before the best interests sta ndard is engaged . This scheme, applied to the visitation context, would supply the safeguards lacking to tailor suitably the GV S to the State s interests by ensu ring that pare ntal decision s entitled to deference are not unduly placed in jeopardy by less significant familial disputes. The Fairbanks Court, in refusing to impose an unfitness/exceptional circumstances test, relied solely upon th e lack o f any statu tory or leg islative e xpress directio n to do s o. 330 Md. at 47- 18 See Troxel, 530 U.S. at 68-69, 12 0 S. Ct. at 20 61 ( [S]o long as a p arent adeq uately cares for his or her children (i.e. is fit), there will normally be no reason for the state to inject itself into the priva te realm of th e family to furth er question the ability of that parents to make the best dec isions conc erning the re aring of tha t parent s child ren. ); see also Maner, 342 Md. at 470, 677 A.2d at 564; Fairbanks, 330 Md. at 50, 622 A.2d at 127. 41 48, 622 A.2 d 125-26 . In a post-Troxel world, ho wever, w e must rev isit this analysis where the Constitution requires greater protection of the interests involved. The facial provisions of the GVS require merely a non-constitutional best interests of the child inquiry. Id. We already have shown that this standard, which is the proper crucible for resolving disputes be tween fit parents, is inadequate, by itself, to protect the vital liberty interests implicated in disputes between fit parents and third parties over the upbringing of child ren. McD ermott, 385 Md. at 353-54, 869 A.2d at 770 ( Where the dispute is between a fit parent and a private third party, howev er, both parties do not beg in on equal footing in respect to care, custody, and control of the children. . . . The argumen ts and outcome of the instant case [requiring a finding of parental unfitness or exceptional circumstances before the child s best interests standard is employed] in no way alter the best interests of the child standard that governs courts assessments of disputes between fit parents involving visitation or custody. ). To preserve fundamental parental liberty interests, we now ap ply a gloss to the Maryland GVS requiring a threshold showing of either parental unfitness or exceptio nal circum stances indicating that the lack of grandparental visitation has a significant deleterious effect upon the children who are the subject of the petition.19 We 19 Other courts hav e construed their GVS provisio ns simila rly. See, e.g., Richburg v. Richburg, 895 So.2d 311, 318 (Ala. Civ. App. 2004) (requiring that grandparents show by clear and conv incing evid ence that the child wou ld be substantially harmed by the father s decision to deny them set visitation ); Moriarty v. Bradt, 827 A.2d 203, 223 (N.J. 2003) (holding that for the New Jersey GVS to be narrowly tailored to the state s compelling parens patriae interest in the well-being of children, courts must impose a burden on (contin ued...) 42 19 (...continued) grandpa rents establis hing by a preponderance of the evidence that visitation is nec essary to avoid harm to the child ), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004); Glidden v. Conley, 820 A.2d 197 , 204-05 (Vt. 2003) (requiring a finding of either parental unfitness or special circumstan ces or harm to the child to o vercome the pare ntal presumption); Camb urn v. Sm ith, 586 S.E.2d 565, 579-80 (S.C. 2003) ( In sum, parents and grandpa rents are not on an equal footing in a contest over visitation. Before visitation may be awarded over a parent s objection, one of two evidentiary hurdles must be met: the parent must be shown to be unfit by clear and convincing evidence, or there must be evidence of compelling circumstan ces to overc ome the p resumptio n that the pa rental decisio n is in the child's best interest. ); In re Pensom, 126 S.W.3d 251, 256 (Tex. App. 2003) ( [W]e hold that in order to satisfy the best interest of the child prong of the Grandparent Access Statute, a grandp arent must overcome the presumption that a fit parent acts in the best interest of his or her child. To o vercome this presum ption, a gran dparent ha s the burde n to prove, by a preponderance of the evidence, either that the parent is not fit, or that denial of access by the grandparent would significantly impair the child s physical health or emotional well-being. ) (footnote o mitted); Roth v. Weston, 789 A.2d 431, 445 (Conn. 2002) (finding that an alleg ation, along w ith proof thereof, that the parent s decision regarding visitation will cause the child to suffer real and substantial emotional harm likewise presents a compelling state interest that will permit interference with parental rights, provided the petitioner has established a parent-like relationship with the child ); Blixt v. Blixt, 774 N.E.2d 1052, 1060 (Mass. 2002) (holding that the grandparents must allege and prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child s health, safety, or welfare ), cert. denied, 537 U.S . 1189, 123 S. Ct. 1259, 154 L. Ed. 2d 1022 (20 03); In re Application of Herbst, 971 P.2d 395, 399 (Okla.1998) ( To reach the issue of a child's best interests, there must be a requisite showing of h arm, or threat of harm . . . . ); Williams v. Williams, 501 S.E.2d 417, 418 (Va. 1998) ( [B]efore visitation can be ordered over the objection of the child s parents, a court must find an actual harm to the child s health or welfare without such visitation. A court reaches consideration of the best interests standard in determining visitation only after it finds harm if visitation is not ordered. ) (quotations omitted); Brooks v. Parkerson, 454 S .E.2d 7 69, 773 n. 5 (G a.) ( [T]he best interest of the child stan dard doe s not com e into play to permit interference with the custody and control of the child, over parental objection, unless and until there is a showing of harm to the child withou t that inter ferenc e. ), cert. denied, 516 U.S. 942, 116 S. Ct. 377, 133 L. Ed. 2d 301 (1995); Litz v. Bennum, 888 P.2d 438, 440 (Nev. 1995) ( We conclude that the parental preference policy is a rebuttable presumption that must be overcome either by a showin g that the pa rent is unfit or other extraordinary circumstance s. ); (contin ued...) 43 do so under the principle o f constitution al avoidan ce previou sly invoked in th is opinion to engraft onto th e GV S a pare ntal pres umptio n. In re James D., 295 Md. at 327, 455 A.2d at 972 (citing Deems, 247 M d. at 113, 23 1 A.2d a t 524); Meekins, 50 Md. at 39-40 (1 878); see also Clark, 543 U.S. at 382, 125 S. Ct. at 725. Our adoption of the pare ntal unfitness or exceptiona l circumstances test borrowed from the realm of custody cases should not provoke much upset in the way these types of proceedings unfold.20 This is owing, in part, to the reality that the standards and processes relevant to all manner of custody and visitation determinations are nearly identical. In Boswe ll we recognized the homogeneity between custody and visitation when we noted that the case law discussed in this opinion concerning custody determinations, and the principles governing such situations, are e qually applicab le to visitation proceedings. 352 Md. at 236, 721 A.2d at 677. Thus, it was comme il faut (fitting or proper) for us to state that the best interest of the child standard is applied in the discretion of the trial judge as the principal consideration in both custod y and visita tion pro ceedin gs. Boswe ll, 352 Md. at 219, 721 A.2d at 669. This common application of standards has not been confined to the initial assignment of custody or visitation, but also has extended to the modification of both. The Court of 19 (...continued) Hawk v. Hawk, 855 S.W.2d 573, 580 (Tenn.1993) (requiring an initial showing of harm . . . before the state may intervene to determ ine the best interests of the child ). 20 Ours is not the first state high court to import the unfitness or exceptional circumstances test into the third party visitation realm from third p arty custody jurisprudence. See, e.g., Moriarty , 827 A.2d at 220-22. 44 Special Appeals indicated as much in McMahon v. Piazze, where the court noted that the material change in circumstances standard is a pplied in actions seeking the modification of both custody and visitation. 162 Md. App. 588, 596, 875 A.2d 807, 812 (2005 ). Further, identical tests are applied in instances where a change is sought in either custody or visitation due to an apprehension of potentia l or actua l harm to the child . Boswe ll, 352 Md. at 225, 721 A.2d at 672 (indicating that the best interests of the child standard is applied concu rrently with an adverse impact test, whereby a change is granted only upon a showing of actual emotional or physical harm to the child). N ow that w e conclusiv ely21 have stated in McD ermott that parental u nfitness an d exceptio nal circum stances sha ll be threshold considerations in third party custody determinations, it is appropria te that we n ow also a pply those considerations in third party visitation disputes. We are aware that the plurality opinion in Troxel does not compel our holding in th is regard in the present case. 530 U.S . at 73, 120 S. Ct. at 2064. T he result reached here illustrates the notion that the exten t of protectio n bestow ed upon liberty interests recognized as being enshrined within the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution does not d ictate necess arily the full com pliment of safeguard s extended to 21 We say conclusively because, as the Court in McD ermott v. Doug herty, 385 Md. 320, 418-19, 8 69 A.2d 751, 808 -09 (2005 ) noted, the th reshold pa rental unfitness or exceptional circumstances test was the prevailing standard in M aryland third party custody cases (along w ith a majority of states) prior to Shurupo ff v. Vockroth , 372 Md. 639, 814 A.2d 543 (2003). As the Court then put it, the McDermott decision a dopt[ed] f or Marylan d, if we [had] not already done so, the majority position. 385 Md. at 418-19, 869 A.2d at 80809. 45 liberty interests availa ble under th e Maryland due proc ess analog found in Article 24 of the Maryland Declaration of Rights.22 For the foregoing reasons, we reverse the Co urt of Spe cial Appe als in accord ance with our holding that there must be a finding of either parental unfitness or exceptional 22 Our precedent states clearly that the Maryland and Federal due process provisions have been read in pari ma teria . Pickett v. Sears, Roebuck & Co., 365 Md. 67, 77, 7 75 A.2d 1218, 1224 (2001); Pitsenberger v. Pitsenberger, 287 Md. 20, 27, 410 A.2d 1052, 1056 (1980); Allied Am. Mut. Fire Ins. Co. v. Comm'r of Motor Vehicles, 219 Md. 607, 615-16, 150 A.2d 421, 426 -27 (1959). This principle of reading the provisions in a like manner does not, however, reduce our analysis to a mere echo of the prev ailing Fourte enth Amendment jurisprudence. Aero M otors, Inc. v. M otor Vehic le Admin ., 274 Md. 567, 587, 337 A.2d 685, 699 (1975) ( Although Art. [24] of the Maryland Declaration of Rights has long been equated with the due process clause of th e Fourteen th Amendment by judicial construction and application, the two provision s are not synonymous. ); see also William J. Bren nan, Jr., State Constitution s and the P rotection of In dividual R ights, 90 H ARV. L. R EV. 489, 491 (1977) ( [S]tate courts cannot rest when they have aff orded their citizens the full protections of the federa l Constitution . State constitutio ns, too, are a font of ind ividual liberties, th eir protections often extending beyond those required by the Supreme Court's interpretation of federal law. The lega l revolution w hich has b rought fed eral law to th e fore mu st not be allowed to inhibit the ind ependen t protective fo rce of state law --for witho ut it, the full realization of our liberties cannot be gu aranteed. ). We have n ot hesitated, where deemed appropriate, to offe r a diffe rent inte rpretatio n of the Marylan d prov ision. For examples, see Dua v. Comcast Cable of Maryland, Incorporated, 370 Md. 604, 621, 805 A.2d 1061, 1071 (2003) (catalog uing ca ses). See also Borc hardt v. State , 367 Md. 91, 175, 786 A.2d 631, 681 (2001) (Raker, J., dissenting) ( Although this Court has generally interpreted Article 24 in pari materia with the Due Process Clause of the Fourteenth Amendment, we have interpreted it more broadly in instances where fundamental fairness demanded that we do so. ). Judge Raker s dissent in Borchardt cited some example s in the crimin al context, such as placing stricter limits on prosecutorial discretion to enter nolle prosequi and the optional merger of criminal offen ses. Id. We have also re ad Maryland s due process clause more broadly than the federa l constitu tion in g ranting the righ t to coun sel, see Rutherford v. Rutherford, 296 Md. 347, 358, 363, 464 A.2d 228, 23 4, 237 ( 1983) , cited in Das v. Das, 133 Md. App. 1, 28, 754 A.2d 441, 456 (2000), and the protection from self-incrimination, Choi v. State, 316 Md. 529, 535 n. 3, 560 A .2d 1108, 1111 n . 3 (1989). 46 circumstances demonstrating the current or future detriment to the child, absent visitation from his or her grandparents, as a prerequisite to application of the best interests analysis. Acc ordingly, we ove rrule the porti ons of Fairbanks, Maner, Beckman, Herrick, and Wolinski that are inconsistent with this holding. Because we have decided that the GVS was unconstitutio nally applied to the Koshkos in the absenc e of a thresh old finding of parental unfitness o r exception al circumsta nces, this case must be remanded to the Circuit Court for further proceedings consistent with our opinion. Although this may have the unfortun ate conseq uence of extending the course o f this litigation, it would be unfair for us to assess whether the current re cord cou ld meet the n ewly announced threshold requirement of parental unfitness or exceptional circumstances, as the Hainings had no reason to believe that they were req uired to plead or adduce any evidence in this regard. Moreover, the trial court could not have foreseen reasonably that such a requireme nt would be declare d by the Cou rt.23 23 In affected c ases pend ing at the time this opinion is filed, whe re approp riate, courts may allow amendments to pleadings or the presentation of additional evidence in light of the holdings announced here. In cases filed after this opinion, the petitioners, in order to avert or overcom e a motion to dismiss their petition, must allege a sufficient f actual pred icate in the petition so as to present a prima facie case of unfitness or exceptional circumstances, as well as invo king th e best in terest stan dard. See Pa tton v. United Sta tes of America Rugby Football Union, 381 Md. 627, 635, 851 A.2d 566, 570 (2004) (quoting Valentine v. On Target, Inc., 353 Md. 544, 548-49, 727 A.2d 947, 949 (1999) ( The gra nting of a m otion to dismiss is proper when, even if the facts and allegations as set forth in the comp laint were proven to be true, the c omplaint w ould neve rtheless fail to state a claim upon which relief could be granted. ) (citations om itted)). At any evidentiary hearing on a petition, the petitioners must produce evidence to (contin ued...) 47 JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMEN T OF THE CIRCU IT COURT FO R BAL TIM O R E COUNTY AND TO REMAND TH E CASE TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COST S IN TH IS COU RT AN D IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDEN TS. 23 (...continued) establish their prima fac ie case on the issue of either parental unfitness or exceptional circumstances as well as evidence sufficient to tip the scales of the best interests balancing test in their favor. We appreciate that there may be circumstances where evidence proffered for the satisfaction of a threshold element also may have relevance in the determination of the best interest stan dard. We do not inten d to foster a trial within a trial. At the end of the day, petitioners, in order to be successful, must shoulder the burdens to adduce at least a prima fac ie case on both the unfitness/exceptional circumstances standard and the best interests standard. 48 IN THE COURT OF APPEALS OF MARYLAND No. 35 September Term, 2006 _________________________________________ GLEN KOSHKO, et ux. v. JOHN HAINING, et ux. __________________________________________ Bell, C.J. Raker Wilner Cathell Harrell Greene Eldridge, John C. (Retired, Specially Assigned), JJ. __________________________________________ Dissenting Opinion by Eldridge, J. _________________________________________ Filed: January 12, 2007 Eldridge, J., dissenting: While I agree with the Court that Maryland Code (1984, 2006 Repl. Vol.), § 9102, is not facially unconstitutio nal, I disagree with the remainder of the Court s opinion. While the opinion states that the Court is not principally relying on Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed. 49 (2000), the Court actually places a great deal of reliance on Justice O Conno r s opinion in Troxel. That opinion, however, was not an opinion of the Supreme Court and does not appear to reflect the views of a majority of the Supreme Court. Troxel is certainly not a sufficient basis for overruling several prior opinions by this Court. McD ermott v. Dough erty, 385 Md. 320, 869 A.2d 751 (2005), on which the majority also relies, was not a visitation case, did not involve § 9-102 of the Family Law Article, and is quite distinguishable. Moreover, if I had sat in the McD ermott case, I would have joined Judge Wilner s concurring opinion.
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