A de facto parent (meaning “parent in fact”) is a person other than the child’s legal parents (biological or adoptive parents) who claims custody or visitation rights based upon the person’s relationship with the non-biological, non-adopted child. Most importantly, a de facto parent has same rights and status as a biological or adoptive parent.
Maryland initially recognized the concept of a de facto parent in the context of two married females who were raising a child together without obtaining a second-parent adoption. Conover v. Conover, 450 Md. 51, 74 (2016). When their relationship ended, the non-biological parent sought visitation with the child; and the Maryland Supreme Court recognized her as a de facto parent with equal standing as the biological mother in the determination of custody and visitation.
A person claiming to be a de facto parent must prove the following:
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.
See Conover v. Conover, 450 Md. 51, 74 (2016).
There are other scenarios in which a third party becomes a de facto parent, including: (1) a child runs away from unfit parents and is raised by a third party; (2) a parent allows a third party to raise a child, because the parent is unable due to health issues, lengthy hospitalization or rehabilitation, an overseas work assignment, or incarceration; or (3) a parent and a significant other raise a child together.
For example, a mother, who is facing a lengthy period of imprisonment, may file a consent petition to award sole legal and physical custody of the child to the maternal grandmother. If months later, the biological father sought custody or visitation with the minor child, the maternal grandmother as a de facto parent has equal footing with the biological father in the determination of visitation and custody of the minor child.
In E.N. v. T.R., 474 Md. 346 (2021), the Supreme Court of Maryland found that the consent of only one biological parent is needed to confer de facto parenthood status on a third party. The father had custody of two minor children. In 2015, he began to cohabitate with his girlfriend. When the father was incarcerated in 2017, he requested that his girlfriend raise his children. In 2018, the biological mother sought sole custody of her 2 children. The biological mother disputed that the girlfriend was a de facto parent, because she had not consented to the girlfriend having a parent-like relationship with the minor children.
The Court ruled that the father’s “conduct met the requirement that he consent to and foster [the girlfriend’s] formation and establishment of a parent-like relationship with the children”. Id. at 404. More importantly, the Court ruled that that even if a legal parent opposes the grant of de facto parenthood status for a third party, a court may find a de facto parenthood status if the three other factors of the test is satisfied. Id. at 405.
PRACTICAL IMPLICATIONS OF DE FACTO PARENTHOOD STATUS
There are practical uses of de facto parenthood status.
1. CHILDREN WITH ONLY ONE BIOLOGICAL OR LEGAL PARENT:
There are three situations in which a child would have only one biological or legal parent: (1) when one biological parent has died; (2) when a child is adopted by only one person; or (3) when an unmarried woman conceives a child using anonymous donor sperm.
If any of these single parents enter into a long term relationship with another person or become married, they have the option of petitioning the court to recognize their significant other as a de facto parent. Alternatively, they could consent to the adoption of the child by their significant other. The advantage of obtaining an order of de facto parenthood is that it is quicker and less expensive than going through the arduous process of obtaining an adoption decree.
In the event that the biological or adoptive parent dies, the de facto parent would have the legal right to continue to raise the minor child. The downside is that the de facto parent could seek custody or visitation rights if the relationship between the de facto parent and the biological or legal parent ends in acrimony.
2. STEP-PARENTS
Step-parents commonly become involved in the raising of their step-children. The risk is that a step-parent could lose all contact with his or her step-child if his or her spouse dies. If it is known that the spouse has a terminal illness, then the biological parent and step-parent should file a joint petition with the court to declare the step-parent to be a de facto parent. Such a decree will place the step-parent and the surviving biological parent on equal footing in any ensuing custody and/or visitation dispute.
While the step-parent can seek de facto parenthood status after his or her spouse dies, it would be much easier to obtain de facto parenthood status while the spouse is alive and is able to testify concerning the four factors.
If the step-parent is not deemed by the court to be a de facto parent, then the step-parent will have to satisfy a higher burden to be awarded custody or visitation with the minor child. Either the step-parent will have to show that the other biological parent is unfit as a parent or that exceptional circumstances exist to warrant a continued relationship with the minor child. Koshko v. Haining, 398 Md. 404 (2007). The rationale for the higher burden for a third-party to obtain visitation or custody of a minor child is the fundamental constitutional right of parents to raise their own children.
There is also a downside when a step-parent becomes a de facto parent. If the marriage ends in acrimony, then the step-parent could seek custody and/or visitation with the minor children. The result could be a multi-parent family in which three parents are recognized as being legally responsible for the care and custody of the child.
