The Home School Court Report
No. 2

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High Court Protects Parents Against In-law Intrusion

On January 12, 2007, Maryland’s court of appeals (the state’s highest court) overturned 14 years of state judicial precedent, ruling that absent certain circumstances, grandparents have no right to brush aside parents’ wishes and demand visitation with grandchildren. The court’s ruling lined up squarely with principles announced in 2000 by the United States Supreme Court in Troxel v. Granville.

When Andrea Koshko and her husband decided to limit the time her parents could spend with their children, the grandparents filed suit, demanding that the court order the Koshkos to give them more time with the grandchildren. The trial court granted the visitation petition, based on a Maryland statute that allows a judge to order grandparent visitation if he believes it is in “the best interests of the child.” This subjective standard gives judges a blank check to substitute their own judgment for that of parents.

On appeal, however, the Maryland high court ruled that it is unconstitutional for a judge to usurp parental discretion unless “exceptional circumstances” are present or the parents have been determined to be unfit, and there would be detriment to the grandchildren. The high court sent the case back down to the trial court to determine these issues.

In its decision, the high court recognized the right to parental autonomy and said that when the trial court reconsiders the case, the parents must be given the benefit of the presumption that parents act in the best interests of their children.

The court also strictly scrutinized the grandparent visitation statute, because a parent’s right to determine whom children spend time with is a right of high constitutional magnitude—a “fundamental” right. This right takes priority over a right established only by state statutes, such as grandparent visitation.

The right to educate one’s own children does not stand in isolation. It is supported by other rights, such as the right of parents to control the upbringing of their children and (often) the right to the free exercise of religion. Home School Legal Defense Association seeks to help protect these underlying rights in order to protect the right to home education itself.

HSLDA applauds the Maryland high court’s decision. To read the full text of Koshko v. Haining, go to

— by Scott A. Woodruff