“De Facto Parents”: Maryland Joins the Trend

By Karen Federman Henry

Earlier this month, the Court of Appeals issued a decision in a case presenting the opportunity to revisit Maryland’s view of “de facto parents.” In Conover v. Conover, No. 79, Sept. Term, 2015 (July 7, 2016), a same-sex couple in a long-term relationship decided that they wanted to have a child. One member of the couple became the biological parent through artificial insemination, and the couple participated equally in raising the child. After the baby was born, the women married.

The non-biological mother did not adopt the child, but cared for the child along with the biological mother as a co-parent. As with many relationships, the couple later separated and eventually divorced. During their separation, a visitation schedule gave the non-biological parent access to the child. At some point, visitation ceased and the custodial parent filed for divorce, without offering any visitation schedule.

Under Maryland law, only parents — through biology or adoption — have been recognized as having rights to custody or visitation of a child. Until this case, anyone else, no matter how involved in the child’s life, was considered a third party and did not have the ability to force a court to grant visitation or custody without a showing that the custodial parent was an unfit parent. In fact, the Court specifically rejected the principle of a de facto parent in 2008, further complicating the efforts of the non-biological parent in this case.

Based on this precedent, the circuit court denied the non-biological parent’s request for visitation. She appealed to the Court of Special Appeals, but the intermediate court had to rely on the state of the law as it existed and had no choice but to affirm the trial court’s decision. After accepting the case, however, the Court of Appeals noted the variety of jurisdictions that have adopted the de facto parent standard.

As a society, the family relationship has changed in recent years — same-sex couples can marry in many states. And whether couples marry or not, many members of households are parts of nontraditional families and have nontraditional parenting roles. In an effort to support the best interests of the children who live in these new family models, the Court reconsidered its position on de facto parents and reversed its prior rejection of the principle.

In doing so, the Court adopted the analysis used by the Wisconsin Supreme Court. Although the test establishes a high standard, it ensures that a person with custody or visitation rights has been an active parent in a child’s life, by evaluating whether:

• the biological or adoptive parent consented to, and fostered, the formation of a parent-like relationship with the child;
• the non-biological parent and the child lived together in the same household;
• the non-biological parent assumed the obligations of parenthood by taking significant responsibility for the child’s care, education, and development, including contributing to the child’s support, without expectation of financial compensation; and
• the non-biological parent has acted in a parental role for a period of time that created a bonded, dependent relationship with the child that is parental in nature.

The Court justified its alteration of the law with the evolution of the nature of who serves in the role of a parent. Many states recognize the de facto parent status of non-biological parents in same-sex couples, and even grandparents or other family members, depending on the circumstances of the particular family.

The concurrences noted some concerns with the Court’s ruling. The first, written by Judge Greene, recognized the decision as consistent with the best interests of the child and the “exceptional circumstances” provision, which currently exists in the law and allows a non-biological individual to assert parental rights to custody or visitation with a child. The second, by Judges Watts and Battaglia, expressed concern that the holding may be too broad and could apply well beyond the facts of the present case.

It remains to be seen how far the Court’s ruling will extend — will it affect unmarried biological parents? Or situations in which a child spends more time with grandparents than with a biological parent? Or to a stepparent when he or she has a significant parental role that is affected after a divorce from the biological parent? These questions may need to await future cases or legislation before they can be answered. For now, at least, the challenge faced by non-biological parents in same-sex couples has some principles to guide the analysis of custody and visitation rights.