Maryland Third Party Custody – What is third party custody?

by | Jan 17, 2021

Third party custody is one of the fastest developing areas of Maryland law, seeing many major changes since 2016.  This series of articles explores these developments and raises questions about where this area of the law is heading.

This series discusses:

Who/What is a Third Party?

In the context of child custody, a third party is someone who is not the child’s biological parent or adoptive parent.  A third party may be related by parents’ marriage or blood (other than biological parent), or may be entirely unrelated to the child.  Legally, they are strangers to the child (unless certain conditions are met, which this series explores).  Practically, they are significantly involved in raising a child.

The law treats third parties differently than biological or adoptive parents in a custody case.  Third parties fall into different categories with different legal standards.  There are 1) De Facto parents and 2) everyone else.

A relevant side point is that custody and visitation are legally equivalent (though, practically, can be quite different).

A Quick (and Abbreviated) Timeline

In 2000, the U.S. Supreme Court issued its Troxel v. Granville, 530 U.S. 57 (2000) opinion on grandparent visitation rights.  In result, third party custody and visitation rights could no longer be evaluated based solely upon the best interests of the child.  Troxel calls for sufficient protection of a parent’s Constitutional right of care, custody, and control of their children.  After Troxel and before 2016, Maryland’s third party custody law backtracked and, frankly, suffered.  (My blog “What about Grandparent Visitation?  (Sigh.)” fills in this part of the timeline.)

The first major positive development occurred in 2016 with Conover v. Conover, 450 Md. 51 (2016), which reestablished the legal category of De Facto parents.  The Conover case examined third party custody for a same-sex and/or transgender married couple (see its Footnote 1 regarding gender), only one of whom was biologically related to the child.  For an introduction to who is a De Facto parent, please read this blog.

2017 ushered in major updates to Maryland’s third party custody law (so, everyone who is not a De Facto parent) in Burak v. Burak, 455 Md. 564 (2017), involving grandparent custody.  Maryland’s Court of Appeals refined the definitions and standards of “exceptional circumstances” and “unfitness” that a third party must prove to obtain custody.  For related topics, please check out these articles linked above.

In 2018, the Court of Special Appeals applied De Facto parent law to step-parents in Kpetigo v. Kpetigo, 238 Md.App. 561 (2018).

And, in its 2020 decision E.N. v. T.R., 247 Md.App. 234 (2020), the Court of Special Appeals answered questions involving parent consent to establishing a De Facto parent relationship and confirmed its open door for multi-parent families (so, families with more than 2 legal parents).

October 2021 Update:

In July 2021, Maryland’s highest appellate court, in E.N. v. T.R. (not to be confused with the August 2020 lower appellate court decision in the same case), updated de facto parent law in some important ways:

    • When a child has two (2) legal parents, both must consent to the establishment of the parent-child like relationship of the de facto parent & child.
    • Consent may be express or implied.
    • If both parents do not consent, then parental unfitness and/or exceptional circumstances standards (discussed below) apply. (Exactly how is a question that remains unanswered.)

So What?

Third party custody is a complex, rapidly evolving area of family law.  Likely by necessity due to the infinite shapes of families and people acting as parents.  These dynamic changes mean that third parties have gained significant rights with each new appellate case over a fairly short period of time.

Which is an interesting contrast to the state of parent-parent custody legal developments…considering that Maryland seems unable to pass a custody statute and parent-parent custody case law is relatively unchanging.

However, there are still unresolved questions, like:

  • Is there a limit on the number of legally recognized parents a child can have?
  • Once recognized as a legal parent, can legal parenthood be terminated? How?
  • What about child support?
  • How far can parental constitutional rights be pushed?
  • What exactly is the legal standard for de facto parenthood when there are two (2) legal parents and only one (1) consents to the de facto parent-child relationship?

I discuss these and others in “What is the Future of Third Party Custody?”.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation.  Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

You can follow her for discussion, news, and developments in Maryland family law on, and YouTube.

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