Is “De Facto” Parenthood Recognized in Maryland?

In a 2008 case, a Maryland appellate court considered whether Maryland recognizes de facto parenthood. In the case, Margaret, a woman in a committed same-sex relationship was seeking custody or visitation of a child adopted by Janice, the other woman in the relationship.

The two women met in 1986 and lived together for the better part of 18 year lived together in Janice’s residence. Janice wanted to be a mother. She was not able to get pregnant through in vitro fertilization, so she adopted a girl from India. Margaret did not try to adopt the girl, though both she and Janice shared childcare responsibilities. In 2004, they separated and Margaret moved out.

After they separated, Margaret saw the girl 3-4 times per week. The two women started having problems and Janice restricted Margaret’s visitation. In the fall of 2004, Janice sent a letter requiring Margaret to arrange visitation through her and to get approval for any activities she wanted to do with the girl.

In winter 2005, Margaret became dissatisfied with the restrictions and her attorney sent a letter to Janice about visitation. Janice then denied Margaret visitation completely.

Margaret filed a legal complaint asking for custody or visitation. The Circuit Court determined that there was no evidence that Janice was unfit and reasoned that there had to be extraordinarily exceptional circumstances to remove Janice from the child as her adoptive mother. There were no such circumstances here. However, the court concluded that Margaret was entitled to visitation as a “de facto parent.” The court explained that there were four factors that went into this determination: (1) the legal parent had consented to the relationship between Margaret and the child, (2) Margaret had lived with the child for about 3 1/2 years, (3) Margaret had performed parental functions, and (4) a parent-child bond was forged. The court next looked at the child’s best interests and found that it was in her interests to visit with Margaret.

The Court of Special Appeals affirmed the Circuit Court. Both the women petitioned the Court of Appeals. Janice asked the court to consider whether an exceptional circumstances standard or a best interests standard applied to visiting with a de facto parent. Margaret asked the court to consider whether a de facto parent had to prove that a legal parent was unfit or there were exceptional circumstances in order to obtain custody. She also asked whether a de facto parent was entitled to visitation where it is in the child’s best interest.

Among other things, the appellate court explained that when there is a dispute between a fit parent and a private third party, the parties are not on equal footing as to the care, custody and control of the fit parent’s kids. While the parent has a fundamental constitutional right at stake, the third party doesn’t.

Before the trial court can even consider the best interests of the child, the trial court must find the legal parents unfit to have custody or else extraordinary circumstances that could lead to serious harms to the child.

In this case, the appellate court explained that the term “de facto” parent describes a person who claims custody or visitation with a non-biological and non-adopted child. The Court of Appeals had never before addressed de facto parenthood in a custody or visitation case. The four factor test used by the lower court and the Court of Special Appeals was derived from the Wisconsin and New Jersey Supreme Courts. The Court of Appeals, however, decided not to recognize de facto parent status in Maryland. It reasoned that the status was contrary to Maryland case law. The Maryland Legislature could enact legislation in this regard, but had not done so. The Court of Appeals held that the Circuit Court had erred in granting Margaret visitation on the basis that she was a de facto parent without first finding Janice was unfit or that there were exceptional circumstances.

If you have are dealing with sensitive child custody issues, contact an experienced Maryland family law attorney for representation. Our office may be able to help you through this difficult time.

More Blogs:

Dissipation of Marital Funds in Maryland, Maryland Divorce Lawyer Blog, November 26, 2013

Neglect in Maryland Family Law Cases, Maryland Divorce Lawyer Blog, November 12, 2013

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