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Maryland's Highest Court Recognizes De Facto Parental Rights

By: Ferrier R. Stillman

Maryland’s highest court just granted parental rights to individuals who are not biological or adoptive parents of children but who are considered to be de facto parents.

Before this landmark decision, there were only two categories of people who could petition Maryland courts for custody or visitation of a minor child – biological/adoptive parents or third parties. Even partners or spouses of the biological/adoptive parent, who had played a significant parental role in raising the child, such as same sex partners and step-parents, were considered “third parties” in relation to the child.  Such “third parties” were left with extremely limited rights to seek visitation or custody even when they were heavily involved in the decision to conceive a child and/or raised the child since birth.

In Conover v. Conover, the Court of Appeals recognized de facto parenthood. The Court held that such individuals may establish standing to obtain or contest custody or visitation.  In order to determine whether a petitioner meets the criteria to be a de facto parent, he or she must satisfy a four-pronged test: the legal parent consented to and fostered the relationship between the petitioner and the child; the petitioner lived with the child; the petitioner performed parental functions for the child to a significant degree; and a parent-child bond was forged.

Prior to this ruling, before a court could even consider whether it was in a child’s best interest to allow a third party the right to visitation or custody, the individual had to show that his or her former spouse or partner was an unfit parent or that exceptional circumstances exist.  This very high bar made it extremely difficult for a non-parent, after a separation or divorce, to even have access to a child he or she had played a major role in raising.

With this new decision, the Court of Appeals made explicit that de facto parents are not merely third parties.  De facto parents now have standing to seek to obtain custody or visitation and do not need to show parental unfitness or exceptional circumstances before a court can grant that individual custody or visitation.  

This is a ruling that is both pragmatic and child centered because, when the four-prong test is met, it allows for the continued relationship between a child and the person who has filled a parental role in that child’s life.

If you have any questions about this article or other family law issues, please contact Ferrier R. Stillman at email or 410.752.9731. Ms. Stillman meets with clients in either the Baltimore or Towson offices.

Acknowledgement:  Ms. Stillman thanks Julia Houp, law clerk, for her assistance with this article.

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