October 9th, 2020

Who can be a De Facto Parent?

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Author: Monica Garcia Harms, Jordyn Y. Lueker

The issue of “who should have custody of children” following a separation, divorce, or breakup can be multilayered and complex in even the most straightforward of cases. What happens when a third party (anyone who is not a biological or adoptive parent) is added into the mix? Third parties (step-parents, significant others, grandparents, aunts, uncles, neighbors, adult siblings, etc.) are regularly involved in the lives and daily care of children. A parent may also seek assistance from a third party when going through difficult life circumstances like addiction, illness, unusual employment situations, etc. At what point, then, does a helping hand turn into someone who might be awarded custody of children in favor of a biological or adoptive parent? While there is a presumption that a child’s interests are best served by a parent, the answer can be complicated.

There are a couple of paths to achieving third-party custody of children in Maryland: first, by a showing that the parents are unfit or that there are exceptional circumstances, or second, by a showing that the third party is a “de facto” parent, or that he/she has a parent-like relationship with the child. De facto parenthood requires, in part, a finding that the biological/adoptive parent consented to and fostered the development of the parent-like relationship. What if one parent consented to the development of the parent-like relationship (such as with a step-parent or a live-in grandparent) and the other parent did not? And what if the other parent did not even know about the third party’s involvement with the child?

A new reported Maryland opinion, E.N. v. T.R, offers some clarity to these questions. In E.N., the children primarily resided with the father and his girlfriend, T.R. The father went to prison, and the children continued to reside with T.R. T.R. then sued the mother and father for custody under a theory of de facto parenthood and was ultimately awarded sole physical custody of the children. The mother appealed and asserted that she did not consent to T.R.’s parent-like relationship with the children, and therefore T.R. was not a de facto parent. The mother’s arguments failed, as the Court determined that only one parent needs to consent to and foster the third-party’s parent-child relationship with the child. The father had consented to the relationship, and T.R.’s status as de facto parent was thus upheld. This case further opens the door to achieving third party custody in Maryland.

If you believe you may be involved in a custodial issue with a third party, it is prudent to contact an attorney to help you work through this difficult issue.