Third-Party Custody: Who Qualifies as a De Facto Parent?

Parents have a constitutional right to parent their children under the due process clause of the Fourteenth Amendment. Under very limited circumstances, the court can award custody to a third party (a non-biological or non-adoptive parent), even over the objection the parents. Maryland Courts have developed three “avenues” that a third-party can take to obtain custody of a child that is not legally or biologically theirs. The three avenues are: showing the parents are unfit, showing that exceptional circumstances exist which make leaving the child in the parents’ care detrimental to the child or, the newest method, showing that the third-party is a de facto parent. De facto parentage is a relatively new and evolving doctrine in Maryland that is important to understand for anyone who is considering seeking custody of a child who is not theirs.

In 2016, the Maryland Supreme Court (then known as the Maryland Court of Appeals), following a majority of states, established de facto parent status in Maryland (Conover v. Conover, 450 Md. 51 (2016)). A de facto parent is a person who is not the biological/adoptive parent of the child but assumes the care for the child and has a parent-child like relationship with the child.

But it’s not quite that simple. Conover established a four-part test to determine if a third-party is a de facto parent:

1. the biological or adoptive parent consented to, and fostered, the third-party’s establishment of the parental relationship between the third-party and the child;
2. the third-party has assume obligations of parenting by taking responsibility for the child’s welfare, development, and education, including providing financial support for the child without the expectation of reimbursement or financial compensation;
3. the third-party and the child lived together in the same home; and
4. the third-party has acted in a parental role for long enough to establish a child/parent relationship with the child.

Conover v. Conover 450 Md. 51, 74 (2016).

There was a lot of confusion after Conover, as is customary when new legal standard is introduced and several cases went to the Maryland Appellate Court (formerly the Court of Special Appeals) on the issue of a parent consenting to the de facto parent relationship. Luckily, it was not long (in terms of case law), until the Maryland Supreme Court further clarified its position for the “consent” prong of Conover in E.N. v. T.R., 474 Md. 346 (2022). In E.N., the Maryland Supreme Court declared that if there are two legal parents, the third-party must show that both parents consented to the third-party developing the parent-like relationship. E.N. also held that consent by a parent can be explicit or implicit. To be implicit, the third-party would have to show that the parent had sufficient information about the care of the child by the third-party/the development of the parent-like relationship, and that the parent did not resisting or objecting to the formation of that relationship. Id. at 402.

Now, after E.N.(and currently as of June 1, 2023), the consent factor of the four-part de facto parent test looks like this:

1. the biological or adoptive parent (or both parents, if both parents are involved) consented to, and fostered (either explicitly or by not objecting to the relationship having sufficient knowledge regarding the formation of the relationship), the third-party’s establishment of the parental relationship between the third-party and the child.

So, why would one try to be deemed a de facto parent? Because if you can show you are a de facto parent, the third-party custody case becomes easier.  A de facto parent will not have to show exceptional circumstances or unfitness of a parent to obtain custody of the child, which prior to 2016 was the (extremely high) bar for a third party to gain custody. De facto parents have equal standing and once a party is established as a de facto parent, the court will apply the best interest of the child standard to determine custody. Absent being declared a de facto parent, a third party will still have to show parental unfitness or exceptional circumstances (or both) to overcome a parent’s constitutional right to parent a child.

Frankly, in many third-party cases there are elements of de facto parentage, exceptional circumstanes, and unfitness, so the arguments can be very nuanced. This is also an area of law that has been developing faster than most areas of family law (although many would argue not fast enough to keep up with the rapidly changing family demographics in the United States). If you find yourself in a situation where you are considering trying to gain custody of a child that is not legally yours, you should consult with an attorney regarding the status of third-party custody in Maryland and your rights/options.