Defacto Parenthood

Please note that this strict and narrow rule can be used for step parent such as a step father or step mother or grandparents like a grandmother or grandfather or anyone who has cared for a child like their own who is seeking custody over a child.

The Maryland Court of Appeals rendered a decision about Defacto Parents in Conover vs. Conover. 450 Md. 51, 146 A.3d (2016). The Conover Court used a four-prong test that was derived from another Highest Court in their decision. This test is shown at the end of this article.

As other State courts use these factors have acknowledged, these tests have a high standard for determining de facto parent status, where it cannot be met without knowing how the biological parent is involved in the child’s life currently. The second factor is critical because it makes the adoptive or biological parent a part of the psychological parent’s relation with the child. These criteria do not include such people who can call themselves as potentially third-party parents like caretakers, neighbors, nannies, baby sitters, au pairs, family friends, and nonparent relatives from satisfying the tests above. These four prongs make certain that a nonparent’s eligibility for psychological parent relation to an unrelated child is strict and narrow. Under these strict and narrow factors, a worry is recognizing that de facto parenthood would hinder with the relationship between biological or adoptive parents and their children is cease. The Court adopted the four-part test stated by another State Supreme Court.

The defacto parent rule does not conflict with the rule that biological or adoptive parents have a fundamental right to govern and direct the control, custody, and care of the child because a biological or adoptive parent does not have a right to begin their child’s parental-type relationship with a third party where afterward take that relationship away from the legal parent.

The second test is important since it produces the adoptive or biological parent a part in the evolution of the psychological parent’s relation with the child. The test acknowledges that when a biological or adoptive parent allows a third party in a child’s life, and the allowance changes a child’s life by giving him to a different parent, the biological or adoptive parent’s right to unilaterally cut the ties and bond that relationship is certainly downgraded.

The General Assembly has granted equity courts’ jurisdiction over the “custody or guardianship over the child.” As part of their broad and inherent power to fashion relief, equity courts have power to determine issues dealing with the welfare of children. In short, a court of equity has the power as a guardian of all children and may be involved to protect and advance their welfare and interests of the children at any time.

Maryland does not have statutory tests for courts to decide whether a party’s access to a child is in their best interest. This common law determined by the courts has been in place for many years, without legislation interfering. It is a settled Maryland law that the General Assembly is presumed to be aware of legislation it has enacted as well as the court’s interpretation of that particular piece of legislation.

Difference between “pure third parties” and those who are parents, the Court made clear that de facto parents are very different from other third parties. The Court held that de facto parents have standing to contest visitation or custody and do not need to show parental unfitness or exceptional circumstances before a trial court and can apply the child’s best interest analysis. The best interests of the child tests have been “firmly entrenched in Maryland and is deemed to be of transcendent importance.”

A third party seeking de facto parent status the have burden of proving the following when requesting the court for access to a minor child:

  1. that the petitioner and the child live together in the same household;
  2. that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;
  3. that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature; and
  4. that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation.
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