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shutterstock 266367698 300x199 - Child Custody Rights and De Facto ParentsIn a case decided August of 2020, the Court of Special Appeals addressed the issue of de facto parents in a child custody case.  This was a case of first impression in Maryland.  The issue was whether one parent could foster a parent-like relationship of a third-party with the children legally resulting in de facto parent status.  The Court found that one parent was sufficient and that both parents were not required in order to establish de facto parent status.

 A de facto parent is a person who is not a child’s biological or adoptive parent but who has a parent-like relationship with the child.  This generally occurs with the parents significant other’s.  It is more likely to occur when one parent is not active in a child’s life and the significant other is.

That leads to the facts of this case. Here, the children lived with their biological father and his girlfriend. The biological mother was absent for years at a time.  The biological father was incarcerated and the girlfriend maintained a parental relationship with the children involved.  The mother eventually demanded the children’s return to her care, after being absent for nearly a year.  The girlfriend filed a complaint for child custody alleging that she was the children’s de facto parent.  The court awarded sole physical custody to the girlfriend as the de facto parent, and joint legal custody with the mother.

A de facto parent has to prove that they have a parent-like relationship with the child or children.  Maryland has adopted a four-part test that must be satisfied in order to establish de facto parenthood. That test requires the putative de facto parent to prove:

(1) that the biological or adoptive parent consented 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 expectation of financial compensation; and

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

The mother, on appeal, only challenged the first element of this test.  As this is a case of first impression in Maryland, that means there is no legal analysis, as of the date of this filing, that addresses the other three elements. Moreover, there is no analysis as to whether implied consent is sufficient or if the consent must be express.

The Court did address the first element.  The Court found that only a single parent must consent to and foster a parental relationship with a third-party in order to develop a de facto parent relationship for child custody purposes.  The Court came to this conclusion after reviewing similar cases in New Jersey and Washington.  The New Jersey case found the same as Maryland.  The Washington case required both parents to foster a parental relationship for the de facto parent to exist, even if that action was to absent themselves from the child’s life.

The de facto parent argument won out in the end with this case.  However, while not expressly addressed, the opinion was certainly decided in the shadow of the best interest of the children analysis.  This standard is the overarching concern for all matters involving custody and visitation and this case is no exception.

Contact us for an analysis of your custody action.