De Facto Parents Now Have Standing in Custody Cases

January 23, 2017

Does a non-biological, non-adoptive person acting in the role of a parent have the legal right to seek custody of a child who has lived with and been raised by that person? What about grandparents who are raising a grandchild?

Custody cases are emotionally charged and challenging. But who has the right to seek custody of a child? A non-parent who seeks custody has had a near impossible task in prevailing in Maryland until now. But that has changed.

In July 2016 in Conover v. Conover, the Maryland Court of Appeals, which is Maryland’s highest court, ruled that family court judges can take into consideration whether a person is a “de facto” parent in deciding custody. De facto parenting essentially means that you’re not a biological or adoptive parent, but you have acted as the child’s parent, living in the same household and playing a significant and active role in that child’s life. The biological parent knows and approves of this relationship. This has often been the case for couples in same-sex marriages, grandparents raising a grandchild, a step–parent raising a spouse’s child or close family members raising a child.

Evidence establishing that you are a de facto parent might include:

• Did you live with and help raise the child?

• Did the biological parent approve of and support you forming a close relationship with the child?

• Did you take an active parenting role in the child’s life such as taking the child to school, preparing meals, providing financial support, being involved in the child’s education, medical care, etc.?

• Did you and the child form a dependent, close bonded psychological relationship?

In 2013, same-sex marriages were legalized in Maryland, and “de facto” custody cases are more frequently before the courts as a result. There is a new narrative in family law.

The Conover case involved a transgender man, Michael Conover, who at the time of his marriage to Brittany Conover, was living as a woman. They were married in the District of Columbia, which had legalized same-sex marriage prior to Maryland doing so. In 2010, Brittany gave birth to a son, who was fathered by a sperm donor, not Michael Conover. In 2012, Brittany stopped allowing her spouse Michael to see her son, claiming that Michael was not listed on the child’s birth certificate and had not adopted the child, which was true. In the July 2016 ruling, Judge Sally D. Atkins wrote that denying rights to third-party de facto parent, such as Michael, was “clearly wrong.”

Prior to the Conover case, Maryland law provided that a non-biological or non-adoptive “parent” had to prove the legal parent’s lack of custodial fitness or that there were “exceptional circumstances” to warrant a custody award to a non-parent. That was a huge hurdle to overcome in most cases. But that has changed. The law still requires good advocacy and a skilled family law practitioner to succeed in such a case.

If you have questions, call Christine Hogan, Esquire at 410-986-0858 or send her an email at chogan@adelberg.com.


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