Grandparents teaching grandson to save money in a piggy bank

As most grandparents, step-parents, and aunts and uncles know, you do not have to be a child’s legal parent to have a deep, meaningful bond with the child. But if you are not a legal or biological parent, do you have any legal rights to the child? In this blog post, we will discuss third-party custody rights, who can have them, and under what circumstances.

Who is a Third Party for Purposes of Child Custody?

In a nutshell, a third party with respect to a child is a person other than the child’s legal or biological parent. (A biological parent is usually also the legal parent, unless their parental rights have been terminated. Adoptive parents, and biological parents whose parental rights have not been terminated, have the same rights as legal parents.) A non-parent who seeks custody may be a grandparent, aunt or uncle, or other relative, or a stepparent, the longtime partner of the child’s legal parent, even a family friend.

In Maryland, not all non-parents are treated equally when it comes to third-party custody rights. As a general rule, de facto parents have greater rights than other third parties.

What is a “De Facto Parent?”

“De facto” is a Latin phrase that means “in fact” or “in effect.” In other words, a de facto parent is not a legal parent, but the court sees them as a person who has effectively served as the child’s parent. Until relatively recently, Maryland courts lumped these people into a category with other nonparents. (More on that in a moment.)

A de facto parent is someone whose relationship with a child is like that of a parent and child. In Maryland, if you want to position yourself as a de facto parent in order to seek child custody or visitation, you must prove four things:

  1. The biological or adoptive parent(s) consented to, and fostered, your parent-like relationship with the child;
  2. You and the child lived together in the same household;
  3. You assumed the obligations of parenthood by taking significant responsibility for the child’s care, education, and development. This includes contributing to the child’s support without expecting to be compensated financially for that contribution;
  4. You served in a parental role long enough to have established a bonded, dependent relationship with the child.

Legal Standards for De Facto Parents and Other Third Parties

In Maryland, a de facto parent has the right to seek custody of, or visitation, with a child due to the nature of their relationship. While that does not necessarily mean that they will be given the same consideration as the child’s legal parent in the custody determination, the court will consider the best interests of the child in deciding custody. While the de facto parent has to prove they meet the four-pronged test described above, they do not have to prove anything about the legal parent’s fitness in order to seek custody.

Other third parties, on the other hand, have a greater burden before they can have standing (the legal right) to seek custody of a child. They must prove either that the legal parent(s) are unfit, or that there are exceptional circumstances that would justify, or both.

A parent might be considered unfit if they abandoned the child, abused the child (or allowed someone else to do so), or neglected the child. A parent might also be found to be unfit if they engage in conduct that is detrimental to the child’s welfare, such as driving drunk with the child in the car or abusing drugs to the extent that the child’s safety is put at risk by their behavior. A parent with a mental or emotional illness that negatively affects their ability to care or provide for the child might also be determined to be unfit. This is a high bar to meet, though.

“Exceptional circumstances” are other factors a court might take into consideration when deciding if a third party has the right to seek legal custody. In general, the longer a child has been away from the legal parent, the stronger their tie to the third party, the emotional effect on the child of a change in custody, and the likelihood that the child will have a stable future with the legal parent are all considerations in deciding whether “exceptional circumstances” exist. This too, however, is a high bar to meet.

In Maryland, grandparents are considered “third parties” for purposes of child custody determinations—unless they also meet the criteria for being considered a de facto parent.

How Did We Get Here? (The Evolution of Maryland Third-Party Custody Law)

Let’s start with a U.S. Supreme Court case, Troxel v. Granville, 530 U.S. 57 (2000). In that case, the grandparents of the children’s deceased father sued the mother, Tommie Granville, for visitation rights. The Supreme Court held that parents have a fundamental right to make decisions about the care, custody, and control of their children. That case was a blow for third parties seeking custody.

Sixteen years later, the Court of Appeals of Maryland case, Conover v. Conover, 450 Md. 51 (2016), decided a custody case between a married lesbian couple whose child was biologically and legally related to only one parent and who was born prior to the couple’s marriage. The Conover court explicitly recognized a distinction between de facto parents and other third parties. Two years later, the Court of Appeals of Maryland explicitly included stepparents in the newly re-established category of de facto parents in the case of Kpetigo v. Kpetigo, 238 Md. App. 561 (2018). A Maryland Court of Special Appeals case, E.N. v. T.R., No. 1231, September Term 2019 clarified that the consent of only one legal parent is required to give rise to a de facto parent situation.

We call ourselves “The Modern Family Law Firm,” and as such, we recognize that families don’t always look like a so-called “traditional” nuclear family. Whether you are a nonparent seeking custody or visitation with a child in your life, or a legal parent concerned about a third party seeking custody, we understand the challenges you are facing, and we can help.

To learn more about third-party custody rights in Maryland, or to get help with a third-party custody matter, contact Strickler, Platnick & Hatfield to schedule a consultation.

Categories: Child Custody