Wolinski v. Browneller

DAVIS, Judge. Diane Wolinski appeals from a judgment of the Circuit Court for Baltimore County that affirmed a Master’s written report and recommendations concerning grandparent visitation rights to Destiny, appellant’s daughter. On September 12, 1995, Gary and Jane Browneller, appellees, filed an action in the circuit court in order to establish a set schedule for their visitation with their granddaughter, Destiny. Appellant also requested a court order of reasonable visitation, but requested that the order conform to her proposed schedule of visitation.

Immediately after a hearing held on December 12, 1995, Master in Chancery Jacqueline D. Wyman entered an Emergency Order that granted overnight visitation rights to ²⁹² the grandparents in a set schedule different than that proposed by appellant. By its terms, the Order was to expire on March 11,1996. Appellant immediately filed exceptions to the Master’s ruling, requesting an expedited hearing on the exceptions. One week later, on December 19, 1995, appellant amended her exceptions, asserting that the Order violated appellant’s Fourteenth Amendment privacy rights and that the Master erred in excluding testimony on prior efforts to establish reasonable visitation hours for appellees.

Appellant also filed a motion to stay the ordered visitation pending a ruling on the exceptions. On December 21, 1995, the court filed an Emergency Pendente Lite Order that granted appellees visitation rights according to the terms set forth in the Master’s recommendations. On January 14, 1996, the circuit court granted appellant’s motion to stay the execution of the Order. 1 The court held a hearing on the exceptions on February 2, 1996. By a Memorandum Opinion and Order filed on March 7, 1996, the court affirmed the Master’s findings and recommendations.

The Order expired on March 11, 1996. On March 12, appellant filed a Motion to Amend or Alter the Judgment under Md.Rule 2-534 (1996), pointing out that the Master recommended mediation by the parties through the Custody and Mediation Division of the circuit court. In a ruling filed on April 3, 1996, the circuit court approved this recommendation and granted appellant’s motion, ordering the parties to proceed with mediation “in due course.” The court ordered the visitation schedule set by the Master, including the overnight visitation, to continue in place pending the recommendations of the Custody and Mediation Division. The chancellor ²⁹³ issued another order on May 22, 1996, denying appellant’s second motion to stay the visitation order. 2 On April 3, 1996, appellant filed her notice of appeal from the judgment of the circuit court entered on March 7, 1996.

Appellant amended her notice of appeal on April 11, 1996, acknowledging the receipt of the chancellor’s April 3 ruling. 3 Appellant presents three questions for our review, which we restate as follows: I. Did the chancellor err by not applying a presumption that appellant’s proposed schedule of visitation was in Destiny’s best interests?

II

Did the chancellor abuse his discretion by failing to consider testimony that overnight visitation was harmful to Destiny?

III

Did the chancellor abuse his discretion in refusing to allow testimony concerning post-complaint visitation by appellees? We answer in the affirmative to the first question, we do not reach the second, and we answer the third in the negative. We vacate the chancellor’s decision and remand. FACTS Destiny was born on March 4, 1994.

Destiny’s father, Nicholas Browneller, joined the U.S. Navy and left home in September 1994. Before Nicholas joined the Navy, appellees received overnight visits from Destiny every other weekend, from Saturday to Sunday afternoon. 4 Appellant testified at ²⁹⁴ the hearing before the Master that Destiny “would come home irritable and cranky and more clingy to me” after these visits. Nicholas came home for Christmas on December 24, 1994. He left again on January 9, 1995.

He, appellant, and Destiny were together during that period; appellant testified that appellees saw Destiny almost daily at this time, including during Christmas. After Nicholas returned to duty on January 9, appellees’ previous visitation schedule resumed until March 1995. On an unspecified day in March, Destiny was visiting appel-lees at their home. Appellant called appellees and requested that they return Destiny to her by 1:30 p.m. so that appellant could take Destiny to a baby shower for a friend.

Appellees said that they were planning to take Destiny out to dinner until 3:00 p.m. and that they would call appellant when they returned. 5 Appellant called the police, and appellees returned Destiny to appellant at 1:30 p.m. From that day in March until the end of May 1995, appellant allowed visitation by appellees only in appellant’s home. Appellees claim that the incident in March was not the real reason for the disruption of overnight visitation. They claimed that Nicholas “broke up” with appellant in that month.

From that point on, appellees alleged, appellant used Destiny as a “pawn” to strike at Nicholas and his parents. This manipulation allegedly intensified after September 1995, when Nicholas allegedly returned to his parents’ home with a new girlfriend. Appellees allege that in that month, appellant announced that she intended to deny appellees and Nicholas all visitation. Appellees assign blame for the problems with ²⁹⁵ overnight visitation, then, to petty jealousy and intransigence on appellant’s part.

On May 12, 1995, appellant sent to appellees a handwritten proposal that appellees would have visitation, at their home, with Destiny for eight hours a day on every other Saturday and Sunday. Appellees agreed to this by signing the proposal and sending it back to appellant on May 26, 1995. Until September, regular visitation occurred as previously agreed. Appellant claims that Destiny was irritable, cranky, and “overly clingy” to her mother after each visit.

On September 4, 1995, appellees took Destiny out of the State (in contravention of the agreement) to pick up her father at D.C. National Airport when he arrived on leave from the Navy. Afterward, according to appellant, Destiny was terrified and developed pneumonia later in the week. Appellant also testified that Nicholas threatened her life over the telephone during his time at home, causing her to obtain a restraining order against him. As noted supra, appellees maintain that appellant was furious when Nicholas brought home a new girlfriend.

The parties hold fast to their respective versions of events; appellant claims to have extended an invitation to the Brownellers and Nicholas to visit Destiny at appellant’s home, and appellees claim that appellant announced that she intended to deny appellees and Nicholas all visitation. For purposes of this appeal, events culminated with the filing of the Complaint on September 12, 1995. ANALYSIS Maryland Code (1984, 1996 Supp.), § 9-102 of the Family Law Article (F.L.) reads as follows: An equity court may: (1) consider a petition for reasonable visitation of a grandchild by a grandparent; and (2) if the court finds it to be in the best interests of the child, grant visitation rights to the grandparent. Id.

The Court of Appeals has interpreted the permissive language of the statute as investing the chancellor with discre ²⁹⁶ tion to award visitation according to the facts and circumstances of each case. “The statute’s use of the word ‘may,’ rather than ‘shall,’ signifies that the steps prescribed in § 9-102 are available, but not mandatory; such is the ordinary and natural import of the word.” Fairbanks v. McCarter, 330 Md. 39, 46 , 622 A.2d 121 (1993). A Master’s findings of fact are merely tentative and do not bind the parties until approved by the court. Doser v. Doser, 106 Md.App. 329, 343 , 664 A.2d 453 (1995). Upon due consideration of the facts found by the Master, “the court may use the master’s facts to support what it concludes in its independent judgment is the optimal resolution.” Id.

Consequently, our task on review is to determine whether the chancellor abused his discretion in his award of visitation. See Beckman v. Boggs, 337 Md. 688, 703 , 655 A.2d 901 (1995). A Appellant first challenges the constitutionality of the chancellor’s application of the grandparent visitation statute. She forgoes a constitutional challenge to the legislature’s authority to mandate grandparent visitation against a parent’s wishes; conceding that the chancellor possessed constitutional and statutory authority to award visitation to appellees, appellant chooses a more sharply defined ground upon which to fight.

She argues that the Fourteenth Amendment mandates applying a rebuttable presumption that her proposed schedule of visitation was in Destiny’s best interests. This presumption, appellant argues, is rebuttable only by evidence that the schedule would be harmful or neglectful of Destiny. By failing to apply the presumption in setting the schedule of appellees’ visitation with Destiny, appellant concludes, the Master and the chancellor violated appellant’s Fourteenth Amendment liberty interest to be free from excessive governmental interference in matters of child-rearing. We note at the outset that appellant does not base her claim on the language of the statute or the intent of the General Assembly in passing the Grandparent Visitation Act. ²⁹⁷ In fact, conspicuously absent from her argument is any suggestion that the statute, by expression or implication, mandates a rebuttable presumption that a parent’s wishes regarding visitation schedules are in the child’s best interests.

Appellant’s silence on this issue allows us to presume that the statute contains no such requirement on its face. Md. Rule 8 — 131(a) (1997) (issue not raised in or decided by the trial court not preserved for appellate review). Moreover, as we explain infra, the statute does not indicate a clear intention that such a presumption should apply. I Beginning with Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923) and Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925), the Supreme Court, in a variety of contexts, has recognized that freedom of personal choice in matters of marriage, family life, and the upbringing of children is a liberty interest protected by the Fourteenth Amendment. 6 See M.L.B. v. S.L.J., — U.S.-, 117 S.Ct. 555 , 136 L.Ed.2d 473 (1996) (termination of parental rights); Santosky v. Kramer, 455 U.S. 745 , 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982) (same); Parham v. J.R., 442 U.S. 584 , 99 S.Ct. 2493 , 61 L.Ed.2d 101 (1979) (right to care for mental health of child); Zablocki v. Redhail, 434 U.S. 374 , 98 S.Ct. 673 , 54 L.Ed.2d 618 (1978) (right to marry); Moore v. City of East Cleveland, 431 U.S. 494 , 97 S.Ct. 1932 , 52 L.Ed.2d 531 (1977) (right of extended family to live together); Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973) (right to abortion); Wisconsin v. Yoder, 406 U.S. 205 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (1972) (right to direct children’s education, coupled with right to freedom of religion); Stanley v. Illinois, 405 U.S. 645 , 92 S.Ct. 1208 , 31 L.Ed.2d 551 (1972) (right to raise children); Ginsberg v. New York, 390 U.S. 629 , 88 S.Ct. ²⁹⁸ 1274, 20 L.Ed.2d 195 (1968) (access to contraceptives; right to define the family); Prince v. Massachusetts, 321 U.S. 158 , 64 S.Ct. 438 , 88 L.Ed. 645 (1944) (right to allow child to work); Pierce v. Society of Sisters, 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 (1925) (right to direct upbringing and education of children); Meyer v. Nebraska, 262 U.S. 390, 399 , 43 S.Ct. 625, 626 , 67 L.Ed. 1042 (1923) (announcing the liberty interest “to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home, and bring up children.”).

Within the narrower context of the parent-child relationship, the Supreme Court has deemed the right to rear a child “essential,” id., and encompassed within a parent’s “basic civil rights.” Skinner v. Oklahoma, 316 U.S. 535, 541 , 62 S.Ct. 1110, 1113 , 86 L.Ed. 1655 (1942). Maryland has consistently echoed the Supreme Court, declaring a parent’s liberty interest in raising a child a fundamental one that cannot be taken away unless clearly justified. In re Adoption/Guardianship No. 10941, 335 Md. 99, 112 , 642 A.2d 201 (1994); In re Adoption/Guardianship Nos. CAA 92-10852 & CAA 92-10853, 103 Md.App. 1, 12 , 651 A.2d 891 (1994) (“This right is in the nature of a liberty interest that has long been recognized and protected under the state and federal constitutions.”). In In re Adoption/Guardianship No. 10941, the Court.of Appeals quoted with approval from Justice Blackmun’s dissent in Lassiter v. Department of Social Servs., 452 U.S. 18 , 101 S.Ct. 2153 , 68 L.Ed.2d 640 (1981): At stake here is “the interest of a parent in the companionship, care, custody, and management of his or her children.” This interest occupies a unique place in our legal culture, given the centrality of family life as the focus for personal meaning and responsibility. “[Far] more precious ... .than property rights,” parental rights have been deemed to be among those “essential to the orderly pursuit of happiness by free men ... ”.

Id. at 38 , 101 S.Ct. at 2165 (citations omitted), quoted in In re Adoption/Guardianship No. 10941, 335 Md. at 113 , 642 A.2d 201 . See also In re Adoption/Guardianship No. 93321055/ ²⁹⁹ CAD, 344 Md. 458, 491 , 687 A.2d 681 (1997); In re Matthew R., 113 Md.App. 701, 720-22 , 688 A.2d 955 (1997); Coffey v. Dep’t of Social Servs., 41 Md.App. 340, 357 , 397 A.2d 233 (1979). Concerning the rights of parents to make important decisions for their children, the Supreme Court has said: It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that [our] decisions have respected the private realm of family life which the state cannot enter.

Prince, 321 U.S. at 166 , 64 S.Ct. at 442 (citation omitted). See also Ellen Canacakos, Joint Custody as a Fundamental Right, in Joint Custody and Shared Parenting 223, 226 (Jay Folberg, ed. 1984) (characterizing the right of parental autonomy as “the right to participate in the basic decisions that affect the life, future, and welfare of one’s children.”). “Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children.” Parham, 442 U.S. at 602 , 99 S.Ct. at 2504 . A parent’s Fourteenth Amendment liberty interest in raising his or her children as she sees fit, without undue interference by the State, has long been a facet of that private realm of family affairs over which the Supreme Court has draped a cloak of constitutional protection. M.L.B., — U.S. at-, 117 S.Ct. at 564-65 .

The Court has upheld parental authority to have their children taught in languages other than English. Meyer, 262 U.S. at 399 , 43 S.Ct. at 626-27 . It has sustained parents’ authority to provide religious with secular schooling against State requirements of public school attendance. Pierce, 268 U.S. at 534-35 , 45 S.Ct. at 573-74 .

It has affirmed a parental liberty interest in encouraging and guiding their children’s religious beliefs. Compare Prince, 321 U.S. at 165-66 , 64 S. Ct. at 441-42 (upholding, in the face of this parental right, a State law restricting child labor) with Yoder, 406 U.S. at 235 - ³⁰⁰ 36, 92 S.Ct. at 1543-44 (overturning a mandatory schooling law in the face of Amish claims of parental authority and religious liberty). 7 See also id. at 233, 92 S.Ct. at 1542 (declaring Pierce a “charter of the rights of parents to direct the religious upbringing of their children.”). The Court has recognized the parental authority over children even as it upheld a State law limiting the availability of sex materials to minors, Ginsberg v. New York, 390 U.S. 629 , 88 S.Ct. 1274 , 20 L.Ed.2d 195 (1968), and even as it invalidated a law requiring a minor to get her parent’s consent for an abortion during the first trimester of pregnancy. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 , 96 S.Ct. 2831 , 49 L.Ed.2d 788 (1976).

The Supreme Court has emphasized, however, that “rights of parenthood are [not] beyond limitation,” Prince, 321 U.S. at 166 , 64 S.Ct. at 442 , and that the “state has a wide range of power for limiting parental freedom and authority in things affecting a child’s welfare....”. Id. at 167 , 64 S.Ct. at 442 . Thus, a parent’s right to direct his or her child’s upbringing is not absolute. Rather, Due Process analysis requires the delicate balancing of all of the competing interests involved in the litigation.

See, e.g., City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 427 , 103 S.Ct. 2481, 2490-91 , 76 L.Ed.2d 687 (1983) (balancing individual’s rights against the State’s interest in regulating abortion); Yoder, 406 U.S. at 221 , 92 S.Ct. at 1536 (balancing individual religious freedom and parental autonomy against the State’s interest in preparing citizens to be self-reliant participants in society). In the context of most family law disputes over children, the State’s interest is to protect the child’s best interests as parens patriae — a derivation of the State’s interest in protecting the health, safety, and welfare of its citizenry. See e.g., Santosky, 455 U.S. at 766 , 102 S.Ct. at 1401-02 ; Judith L. Shandling, Note, The Constitutional Constraints on Grandparents’ Visitation Statutes, 86 Colum.L.Rev. 118, 129 (1986) (“The state’s power to intervene ... is derived from its ³⁰¹ parens patriae power, which allows the state to act when the welfare of an individual who lacks the capacity to protect her own best interests ... is at stake.”). The importance of those State interests that successfully override parental autonomy in raising children measures triumphantly against the nature of the individual liberty interests upon which the State laws or regulations impinge.

A regulation or law significantly curtailing a fundamental right must undergo strict scrutiny — it must be narrowly tailored to serve a compelling public interest. Roe, 410 U.S. at 155 , 93 S.Ct. at 727-28 . Restrictions upon rights not deemed fundamental need only be rationally related to some purpose within the competency of the State. See Yoder, 406 U.S. at 233 , 92 S.Ct. at 1542 .

Finally, there are those restrictions upon rights deemed “substantial,” though not fundamental, that must undergo intermediate-level scrutiny — governmental interference is sanctioned only when the interference is supported by a substantial governmental interest. See Plyler v. Doe, 457 U.S. 202, 217-18 , 102 S.Ct. 2382, 2395 , 72 L.Ed.2d 786 (1982); Halderman v. Pennhurst State Sch. & Hosp., 707 F.2d 702 , 709 (3d Cir.1983). As noted above, the State’s interest in all custody, adoption, and visitation disputes is to protect the best interests of the child caught in the middle of the fight. The Court of Appeals has often reaffirmed that this interest takes precedence over the fundamental right of a parent to raise his or her child.

See In re Adoption/Guardianship No. 10941, 335 Md. at 113 , 642 A.2d 201 (“We have made clear ... that the controlling factor in adoption and custody cases is not the natural parent’s interest in raising the child, but rather what best serves the interest of the child.”). See also Beckman, 337 Md. at 703 n. 7, 655 A.2d 901 (visitation and custody determinations are governed by the “same principles,” as visitation is considered to be a form of temporary custody). The courts have said time and again that the best interest standard is dispositive in custody awards. See Taylor v. Taylor, 306 Md. 290, 303 , 508 A.2d 964 (1986) (best interest of the child ³⁰² standard is of “paramount concern” in any custody case); Wagner, 109 Md.App. at 38, 674 A.2d 1 .

In the context of adoption cases, the Court of Appeals has labeled “compelling” the State’s interest in securing permanent homes for children placed into its custody because of an inability or unwillingness of their parents to care for them properly. In re Adoption/Guardianship No. 93321055/CAD, 344 Md. at 492, 495 , 687 A.2d 681 . Thus, we have no difficulty classifying the “best interests of the child” standard in visitation rights disputes as a compelling State interest. The other side of the coin is, of course, the character of the opposing parental interest.

The right of a parent to retain the care, custody, and management of his or her child is indeed fundamental. Id. at 491 , 687 A.2d 681 ; In re Matthew R., 113 Md.App. at 720-22 , 688 A.2d 955 . Thus, the right cannot be taken away without clear justification. See In re Adoption/Guardianship No. 10941, 335 Md. at 112 , 642 A.2d 201 .

Nevertheless, we are uncertain as to the character of the parental right at stake when the issue involves visitation rights rather than custody or the termination of parental rights. In visitation disputes, the right at stake is not that of the parent to raise the child vel non, but to raise the child entirely as he or she wishes — to direct the child’s upbringing completely. As one commentator phrased it: Since the rights protected are rights to control or at least participate in certain decisions affecting one’s children, the rights may properly be regarded as part of a person’s autonomy — the right to participate in the control of important parts of one’s destiny through one’s own choices. The right of family autonomy is thus a right of individual parental autonomy.

Canacakos, supra, at 231. It has been suggested that the distinction between the rights at stake in visitation disputes and those at stake in custody or termination proceedings bear directly on the character of the liberty interest. See Halder-man, 707 F.2d at 708-09 (arguing, that Parham indicates that the parental right to have child voluntarily committed is not ³⁰³ fundamental). But see Michael v. Hertzler, 900 P.2d 1144, 1147 (Wyo.1995) (holding the right to direct the association of the family a fundamental right). 8 We need not decide today the strength of the parental liberty interest at stake here; the particular circumstances of this case do not require it.

We will assume, arguendo, that appellant’s liberty interest in directing the times her daughter will visit with her grandparents is a fundamental right. Nevertheless, even when the individual liberty interest at stake is fundamental, strict scrutiny may not be appropriate. We hold that it is not appropriate here and, for reasons explained infra, we will apply a rational relationship test to the court’s application of the statute. 9 II When choosing the analytical framework for each case, the degree of State infringement upon a fundamental right is important and, in many cases, dispositive. In her dissent in City of Akron , Justice O’Connor emphasized the importance of this consideration: ³⁰⁴ [N]ot every regulation the State imposes must be measured against the State’s compelling interests and examined with strict scrutiny ...

The requirement that state interference “infringe substantially” or “heavily burden” a right before heightened scrutiny is applied is not novel in our fundamental-rights jurisprudence, or restricted to the abortion context. In San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 37-38 , 93 S.Ct. 1278, 1298-1300 , 36 L.Ed.2d 16 (1973), we observed that we apply “strict judicial scrutiny” only when legislation may be said to have “ ‘deprived,’ ‘infringed,’ or ‘interfered’ with the free exercise of some such fundamental right or liberty.” If the impact of the regulation does not rise to the level appropriate for our strict scrutiny, then our inquiry is limited to whether the state law bears “some rational relationship to legitimate state purposes.” Id. at 40 , 93 S.Ct. at 1300. Even in the First Amendment context, we have required in some circumstances that state laws “infringe substantially” on protected conduct, Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 545 , 83 S.Ct. 889, 893 , 9 L.Ed.2d 929 (1963), or that there be “a significant encroachment upon personal liberty,” Bates v. City of Little Rock, 361 U.S. 516, 524 , 80 S.Ct. 412, 417 , 4 L.Ed.2d 480 (1960). City of Akron, 462 U.S. at 461-62 , 103 S.Ct. at 2508-2509 .

See also Planned Parenthood, 505 U.S. at 876, 112 S.Ct. at 2820 (plurality opinion) (applying undue burden test to determine constitutionality of State infringement on women’s right to an abortion); Webster v. Reproductive Health Servs., 492 U.S. 490, 509 , 109 S.Ct. 3040, 3051-52 , 106 L.Ed.2d 410 (1989) (holding State’s refusal to fund abortions does not unduly burden women’s right to have abortions). In an earlier case, the Court had stated: 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 scrutiny. To the contrary, reasonable regulations that do not signifi- ³⁰⁵ eantly interfere with decisions to enter into the marital relationship may legitimately be imposed. Zablocki, 434 U.S. at 386 , 98 S.Ct. at 681 .

Notwithstanding that visitation may be characterized as a form of “temporary custody,” see Beckman, 337 Md. at 703 n. 7, 655 A.2d 901 , the respective proceedings for termination of parental rights/adoption, custody, and visitation vary greatly in their degree of intrusiveness upon the liberty interests of the parents involved. “When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.” Santosky, 455 U.S. at 759 , 102 S.Ct. at 1397 . Regarding adoption decrees, the Court of Appeals has said: [A]doption decrees cut the child off from the natural parent, who is made a legal stranger to his offspring. The consequences of this drastic and permanent severing of the strongest and basic natural ties and relationships has led the Legislature and this Court to make sure, as far as possible, that adoption shall not be granted over parental objection unless that course clearly is justified. The welfare and best interests of the child must be weighed with great care against every just claim of an objecting parent.

Walker v. Gardner, 221 Md. 280, 284 , 157 A.2d 273 (1960). Custody determinations, on the other hand, are less intrusive of parental rights than adoption or termination of parental rights proceedings, as the Supreme Court recently noted in M.L.B.: [W]e have repeatedly noticed what sets parental status termination decrees apart from ... other domestic relations matters such as divorce, paternity, and child custody. To recapitulate, termination decrees “work a unique kind of deprivation.” In contrast to matters modifiable at the parties’ will or based on changed circumstances, termination adjudications involve the awesome authority of the State “to destroy permanently all legal recognition of the parental relationship.” Our Lassiter and Santosky decisions, recognizing that parental termination decrees are among the ³⁰⁶ most severe forms of state action, have not served as precedent in other areas. M.L.B.,— U.S. at-, 117 S.Ct. at 570 (citations omitted).

Finally, in a holding particularly pertinent to the case sub judice, the Court of Appeals has noted that visitation awards are less intrusive than custody awards: Custody disputes and visitation disputes should be measured by their respective standards. Visitation is a considerably less weighty matter than outright custody of a child, and does not demand the enhanced protections ... that attend custody awards. Fairbanks, 330 Md. at 48 , 622 A.2d 121 . Thus, the Court reasoned, grandparents need demonstrate no “exceptional circumstances” in order to win visitation rights, as they must to gain permanent custody of a grandchild.

Id. The level of the infringement on the parental right at stake depends on the particular type of proceeding and, in its turn, affects the protection constitutionally due the parents. An examination of the infringement on appellant’s rights in the case sub judice persuades us that the application of the statute should not undergo strict constitutional scrutiny, particularly given the circumstances under which appellant asserts her parental rights. We note first that several States have considered the constitutionality of their respective grandparent visitation statutes.

Of those State courts that have, several have characterized these statutes as minimal infringements upon the parents’ liberty interest in raising their children without excessive government interference. See, e.g., Campbell v. Campbell, 896 P.2d 635, 642 (Utah.Ct.App.1995); Roberts v. Ward, 126 N.H. 388 , 493 A.2d 478, 482 (1985); Herndon v. Tuhey, 857 S.W.2d 203, 209 (Mo.1993) (declaring visitation rights by grandparents to be “less than a substantial encroachment on a family.”); King v. King, 828 S.W.2d 630, 632 (Ky.), cert. denied, 506 U.S. 941 , 113 S.Ct. 378 , 121 L.Ed.2d 289 (1992) (grandparent visitation does not “go too far in intruding into the fundamental rights of the parents.”); R.T. & M.T. v. J.E. & L.E., 277 NJ.Super. 595, 650 A.2d 13 , ³⁰⁷ 14 (Ch.Div.1994). See also Brooks v. Parkerson, 265 Ga. 189 , 454 S.E.2d 769, 779 (1995) (Benham, J., dissenting). Consequently, these States have tended to apply rational basis review to the grandparent visitation statutes.

See, e.g., Campbell, 896 P.2d at 644 (statute “rationally related to furthering a legitimate state interest.”); Herndon, 857 S.W.2d at 208 -09 (citing Akron, 462 U.S. at 461-63 , 103 S.Ct. at 2508-10 ); King, 828 S.W.2d at 632 . But see Michael, 900 P.2d at 1150-51 (applying strict scrutiny test; statute was narrowly drawn in furtherance of compelling State interest in protecting child’s best interests). See also Shandling, supra, at 129 (advocating strict scrutiny test). In all of the cases we have reviewed, the challenge was to the constitutionality of allowing the grandparents to petition for, and the court to grant, visitation rights ab initio.

Because appellant, by not challenging the application of F.L. § 9-102, surrenders voluntarily her liberty interest in being free to deny grandparental visitation, the intrusion upon her parental autonomy to which she objects is less severe than in the cases cited supra. Although a court’s imposition of a particular schedule of visitation does present some intrusion upon her right to raise her child as she sees fit, it intrudes upon a very small fraction of that autonomy; and it certainly does not intrude to the same extent as the decision to override parental objection to any visitation. The sum of a child’s life is composed of more than the time spent with his or her grandparents. And in this case, appellant essentially objects only to the grant of overnight visitation rights, as opposed to daytime visitation only.

Indeed, an intrusion into parental autonomy is present — but it is relatively small compared to that suffered by the unsuccessful appellants in Campbell, Roberts, Herndon, and King . Strict scrutiny is therefore not appropriate. Our examination of the relevant case law convinces us to apply a rational basis test to this particular intrusion. 10 ³⁰⁸ Ill Because appellant concedes that the Master could have ordered some form of grandparent visitation, we will assume that F.L. § 9-102 is facially constitutional. Appellant frames her argument as a challenge to the application of the statute, not its validity.

The Master and the circuit court, she contends, were constitutionally obligated to presume that her proposed schedule of visitation is in Destiny’s best interests. This presumption must stand, appellant concludes, if appellees do not present some evidence that the schedule would be harmful to or neglectful of Destiny’s best interests. The statute itself contains no language expressly mandating such a presumption. A review of the available legislative history likewise reveals no intent to presume a custodial parent’s wishes on visitation schedules to be in the best interests of the child.

Nevertheless, neither the statutory language nor the legislative history indicates that the General Assembly intended that such a presumption not apply. Rather, the only clear and unequivocal standard enunciated in the case law, the statute, and the legislative history is that the finder of fact must exercise his or her discretion for the sole purpose of furthering the best interests of the child. F.L. § 9-102(2); Beckman, 337 Md. at 693 , 655 A.2d 901 (“In [deciding whether to award visitation] the court must focus exclusively on the welfare and prospects of the child.”); Fairbanks, 330 Md. at 49 , 622 A.2d 121 (“The outcome of the grandparents’ petition lies within the sound discretion of the trial court, guided solely by the best interests of the grandchild.”). See also John A. Pica, Jr., Testimony on Behalf of HB 1205 Before the House Judiciary Committee (March 22, 1979): In HB 1205 grandparents are not automatically deemed a group to be considered in the awarding of visitation rights. ³⁰⁹ They are, however, a category that may be considered for visitation rights.

And once they are considered, they may only be awarded the rights if it is in the best interest of the child. Again, let me stress Mr. Chairman that this legislation is designed to address the best interest of the child. Id. Nevertheless, recognizing the dispositive nature of the “best interests of the child” standard begs the question of what schedule of visitation would actually be in the child’s best interests.

The statute and case law grant to the trial judge wide discretion to make this determination. Maner, 342 Md. at