What about grandparents who raise their grandchildren as their own? Are they simply grandparents, or are they considered parents too? What about a man who thought he was the biological father of a child, and treated the child as such, but later discovered he was never the biological father? Is he still considered a parent? What about the partner of a woman with a child who loves and cares for the child like a parent does? Is the partner just a friend to the child, or is the partner considered a parent?
The answer to these questions depends on whether they qualify as de facto parents. Maryland courts have recently adopted a new legal test to determine if you can qualify as a de facto parent. If you can, you can fight for custody or visitation of your de facto child.
What is a De Facto Parent?
A de facto parent is a third party that has a right to challenge custody or visitation rights without the need to show parental unfitness or exceptional circumstances. Generally, if a pure third party (a non-biological or non-adoptive parent) requests visitation over a biological parent’s objections, the third party has an uphill battle. They must first show parental unfitness or exceptional circumstances. This is hard to do. If they can prove that, the trial court can move on and apply the usual “best interest of the child” analysis, and ultimately determine visitation rights. For more on how the “best interests of the child” analysis works, see our Free Legal Consumer Guide on child custody.
A de facto parent does not have to overcome this significant hurdle. De facto parents are different from pure third parties in the eyes of the law. Unlike pure third parties, de facto parents actually assume and exercise parental duties and form a close bond with a child.
But how do you know if you truly qualify as a de facto parent? Take the test!
What is the De Facto Parent Test?
The de facto parent test is a four-part test. The Court of Appeals of Maryland adopted the test in Conover v Conover, determining that the ex-spouse of the biological mother of the child could use de facto parent status to contest custody or visitation, even though the ex-spouse was neither a biological nor an adoptive parent of the child. This means that Maryland now recognizes that de facto parents have a right to fight for custody or visitation of a child.
Under the four-part test, a third-party seeking de facto parent status must prove the following when petitioning the court for access to a minor child:
- The biological or adoptive parent consented to, and encouraged, the petitioner’s formation and establishment of a parent-like relationship with the child;
- The petitioner and the child lived together in the same household;
- The petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education, and development. This includes contributing towards the child’s support, without expectation of financial compensation.
- The petitioner has been in a parental role for enough time to establish a bonded, dependent relationship which is parental in nature.
So, if you can satisfy and prove all four parts, you have de facto parent status. You still have to move on and prove your visitation request is in the best interests of the child, but you will at least get over the first hurdle which previously prevented de facto parents from even making that argument.
It is also important to note that these criteria do prevent some potential third-party parents such as neighbors, caretakers, baby sitters, nannies, au pairs, non-parental relatives, and family friends from satisfying these standards.
What Should You Do?
If you find yourself in a similar situation as the examples we used to start this post, and you think you may pass the de facto parent test, contact our office to schedule a consultation. You should at least get an answer so you know your options. We can review the unique facts of your particular situation and apply those facts to the law to give you an answer.
If you need to fight for your rights to de facto parent status, we will be happy to represent you in a legal action to enforce those rights. Contact us today.