Maryland Recognizes De Facto Parents

by Keith R. Havens on Jan. 06, 2021

Divorce & Family Law Divorce & Family Law  Child Custody 

Summary: Maryland has set a standard by which courts can recognize the relationship of de facto parents in custody disputes.

In an important and long overdue ruling, the Maryland Court of Appeals recognized for the first time the importance and rights of a de facto parent. Conover v. Conover, September Term, 2015, Case No. 79.

It is well and long established in Maryland that child custody matters revolve around the best interests of the child. Montgomery County Dept. of Social Services v. Sanders, 38 Md. App. 406, 381 A.2d 1154 (1978). This standard has not been put in front of the rights of biological parents as it relates to third parties.

Maryland has long held that in order for a third party (i.e. anyone who is not the biological parent of a child) to seek custody of or access with a child, the court must first find that the biological parent is unfit or that extraordinary circumstances exist. McDermott v. Dougherty, 385 Md. 320 (2005). In determining whether extraordinary circumstances exist, the court must look at certain factors. Those factors are: (1) length of time the child has been away from the biological parent; (2) age of the child when care was assumed by third party; (3) possible emotional effect on the child of a change of custody;             (4) period of time which elapsed before the parent sought to reclaim the child; (5) nature and strength of the ties between the child and the third party custodian; (6) intensity and genuineness of parent’s desire to have the child; and (7) stability and certainty as to the child’s future in the custody of the parent.

The net effect of this requirement was that third parties who had established a bond with a child and thus created a de facto parental relationship would be barred from seeking custody or even access if they could not meet the requirements that the biological parent was unfit or that extraordinary circumstances exist. This was the case even if awarding the third party custody of or access to a child would be in the child’s best interests.

This has had a tremendous negative impact on stepparents, grandparents, and persons in relationships that were not legally recognized, among others. Although these persons may have been raising a child as their own child and there had become a well established bond between these persons and the child, the court would not recognize the relationship as being one that would permit them to seek custody of or access to the child.

Although the Court of Appeals had previously rejected the notion that a de facto parent should have legal standing to obtain custody, Janice M. v. Margaret K., 404 Md. 661 (2008), the Court of Appeals embraced the dissenting opinion of Judge Irma Raker in the earlier case, and acknowledged the special relationship between a de facto parent and a child. The Court of Appeals ruled that a de facto parent has “standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interest of the child analysis.” Conover v. Conover, September Term 2015, No. 79.

In determining whether a person is a de facto parent, the Court of Appeals adopted a four part test. The party seeking to be determined to be a de facto parent has the burden of proof to establish that:

1. That the biological or adoptive parent consent to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;

2. That the petitioner and the child lived together in the same household;

3. That the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without the expectation of financial compensation; and

4. That the petitioner has been a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

Conover v. Conover, September Term 2015, No. 79 at 23 (quoting In Re H.S.H.-K., 533 N.W.2d 419 (Wisc. 1995).

This is a major acknowledgment of the changes in our concept of family in society. Further, it is a recognition that persons who are not necessarily biologically related to a child are important to the welfare and upbringing of that child. Finally, it is a step toward truly making the “best interests of the child” as the ultimate consideration in custody and access cases.

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