Although slow on the uptake, Maryland has finally gotten on board with giving de facto parents custody and visitation rights with their (non-biological) child. Let’s break it down – what is a “de facto” parent? A de facto parent is a person who in all senses acts, appears, and is understood by the child, the parent, and society at large to be the child’s parent. However, there is always a catch – here it is that the parent is not actually related to the child, biologically, or legally such as through adoption. Previously, Maryland held that in such circumstances, the biological or adoptive parent had absolute rights over the child in terms of custody and visitation, and could cut off access to the non-related parent.
Imagine a non-married couple of 5 years gives birth to a beautiful baby girl. The child is biologically related to one parent, but not the other. They name the child with both last names, send out birth announcements together, and hold themselves out in the community as equal parents, such as going to the parent teacher conferences together, sharing transportation of the child to events, and playdates, and sharing in the child’s care at home with cleaning, mentoring, education, and homework, etc. For some reason, when the child is 7 years old the relationship between the parents sours, and biological Parent A moves out, taking the child. Non-biologically related Parent B seeks to continue the relationship with the child, but is blocked by Parent A.
Parent B can seek to establish de facto parent status, which would result in a court Order to allow Parent B visitation and/or custody of the child, just as Parent B would be able to do if s/he was a biological parent.
Parent B must first establish that s/he satisfies the 4-factor test:
1. Parent A (the biological parent) consented to the establishment of the parent-like relationship between the child and Parent B;
2. Parent B and the child lived in the same home;
3. Parent B assumed the obligations of parenthood without the expectation of financial compensation from Parent A; and
4. Parent B has been in a parental role sufficiently long enough to create a bonded relationship that is parental in nature.
Once Parent B satisfies the 4-factor test, then s/he must prove that it is in the best interests of the child to have a parental relationship with Parent B. The 4-factor and best interest test is not easy to prove, though it can be done.
Courts want to keep parents in a child’s life if that parental relationship is going to be beneficial to the child. However, the Court will make sure that it is only awarding custody and visitation to people who are truly parents, by the intent of Parent A, function Parent B, and the intent of Parent B. Courts will be extremely careful only to award custody and visitation to a person who was truly a parent in the past and present, and intends to remain a parent in the future.
This is a new and burgeoning area of Maryland law. The information explained here is to present the new law in Maryland, which is likely to change and evolve as cases arise.
***This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should contact an attorney to discuss your particular legal situation.***