De Facto Developments 2021

by | Nov 15, 2021

Since writing my series on Maryland Third Party Custody, and in particular in Consent, De Facto Parents & Multi-Parent Families, a major development occurred in July 2021.  The Court of Appeals, Maryland’s highest Court, issued EN v. TR, reviewing the lower appellate Court’s decision by the same name.

This blog is one in a series on Maryland Third Party Custody:

EN v. TR (2) (as I’ll call it in this series) answered several questions that I posed What is the Future of Third Party Custody Law?, specifically:

Can a parent overcome one-sided consent & prevent third party custodial rights from being established?

What is a Family & Who are Parents?

How far can parental constitutional rights be pushed?

Answered Questions

Answer 1 – Both Parents Must Consent

Now thanks to EN v. TR (2) and when there are two legal parents, one parent’s consent to a de facto parent relationship, is not sufficient to establish parental consent under Conover.  Otherwise put, both parents must consent and one-sided consent is insufficient.

Yes, a parent can (probably) overcome de facto parenthood by objecting to establishment of a de facto parent-child relationship.

Importantly, EN v. TR (2) clarifies that: 

  • the legal standards in Conover apply to families in which there is only one legal parent and a third party seeks status as a de facto parent; and,
  • the legal standards in EN v. TR (2) apply to families in which there are two legal parents (or more?) and a third party seeks status a de facto parent.

Answer 2 – Defining Legal Parents

Additionally, EN v. TR (2) also coins the term “legal parent”, referring to biological or adoptive parents.  (Also giving rise to a new unanswered question, discussed below.)

Answer 3 – Parent Consent May Be Express or Implied

Finally, EN v. TR (2) establishes (in detail) that parental consent to the de facto parent relationship may be express or implied: 

“[S]o long as the consent is knowing and voluntary and would be understood by a reasonable person as indicating consent to the formation of a parent-like relationship between a third party and a child, the first factor of the de facto parent test may be satisfied by a legal parent’s express or implied consent.”

Express consent means affirmative consent that is clearly and unmistakably stated.  Implicit consent means consent inferred from one’s conduct and not one’s direct statements.

In short, implied consent:

  • Is case/fact specific
  • May be inferred from party’s conduct
  • Conferred knowingly & voluntarily
  • Reviewed upon a reasonable person standard
  • Is shown through action or inaction

For example, the legal parent knowingly & voluntarily does not object to establishment of parent-like relationship by the other legal parent.

New Unanswered Questions

BUT… EN v. TR (2) raises significant unanswered questions.  Which is a problem for Maryland attorneys and trial courts.  At least until Maryland’s appellate Courts step in again.

Unanswered Question 1 – Unclear Legal Standard

Critically, the legal standard EN v. TR (2) states is not clearly or consistently stated.  The reason?  The standard is stated five times and differently each time (a peril of lengthy opinions, which here is about 69 pages long, plus a 28 page dissent).  Absent a third party custody statute from Maryland’s legislature, only its appellate Courts can correct this.

Specifically and underlined to emphasize inconsistencies:

“We hold that…to establish de facto parenthood, where there are two legal…parents, a prospective de facto parent must demonstrate that both legal parents consented to and fostered a parent-like relationship with a child, or that a non-consenting legal parent is an unfit parent or exceptional circumstances exist.”


“With our holding, a determination in keeping with the best interests of the child is ensured by permitting de facto parenthood to be established either through the consent of both legal parents or a showing of unfitness or exceptional circumstances.”


“[W]e are compelled to hold that…before establishing de facto parenthood where there are two existing legal parents, both parents must be shown to have consented to a third party’s formation of a parent-like relationship with a child or, in the alternative, that one or both parents are unfit or exceptional circumstances exist.”


“[W]here there are two legal parents the consent of both parents is necessary to establish de facto parenthood…[T]o satisfy the first factor, where there are two legal parents, both parents must knowingly participate in consenting to and fostering the third party’s formation of a parent-like relationship with a child.”


“[W]e hold that under the first factor of the test for establishment of de facto parenthood…where there are two legal…parents, the prospective de facto parent must demonstrate that both parents consented to and fostered such relationship, or that the non-consenting legal parent is unfit or exceptional circumstances exist.”

Why do these inconsistencies matter?  Because until EN v. TR (2) there were two clear legal paths to third party custody.  (Note:  There are other paths to legal parentage besides custody, discussed below.)

  1. De Facto parenthood, according to the standard established in Conover; or,
  2. Third party custody, requiring a showing of parental unfitness and/or exceptional circumstances and intervention by the third party in the parents’ custody case.

A third party could pursue both paths, but could only be determined a de facto parent if meeting Conover’s standards.

The inconsistencies muddy the waters significantly.

So, what are the unanswered questions about the legal standard?

  • What is the standard?
  • If both parents do not consent, are both held to the same legal standard for the remaining legal analysis?
  • Or, if both parents do not consent, is de facto parenthood determined as to the consenting parent, while the non-consenting parent is evaluated according to unfitness & exceptional circumstances?
  • Instead, is the first factor of Conover’s standard either consent or unfitness/exceptional circumstances, followed by the remaining Conover factors?
    • And if so, must Conover factors 2-4 be met separately by both parents?
    • Or, just by one parent?
  • Or rather, is unfitness/exceptional circumstances now a path to de facto parenthood too?

Unanswered Question 2 – Intervention

According to Conover, a de facto parent is not required to file a motion to intervene.  However, Burak requires intervention in third party custody cases. 

Until now, Conover applied to all de facto parents, without distinguishing between one legal parent and two legal parent families.  Conover’s facts, though, involved one de facto parent filing suit against the one and only legal parent.

EN v. TR (2) sets the stage for the de facto parent either to initiate litigation against both parents or to become involved in an already existing custody case between the two legal parents.  But, Burak (not a de facto case) entitles & requires a third party to file to intervene in existing litigation between the parents.

Where does this leave intervention?  Does it only apply if filing in an existing case between the legal parents?  But not if the de facto parent is the one initiating the case?  Or, is intervention tied to whether one is seeking third party custody or de facto parenthood? 

Why does this matter?  Because intervention leads to standing, which is a person’s right to participate as a party in the case & be eligible for the court’s help.  It would be procedurally tragic for intervention to be raised late in the case, after much time, effort, sacrifice, and cost were spent.

Unanswered Question 3 – Equalizing De Facto Parenthood & Third Party Custody

Until EN v. TR (2), de facto parents and third parties were two different categories with different responsibilities.  Namely, legal parenthood & financial responsibility (though child support is still an unanswered question, discussed HERE).

The unclear language discussed above invites three potential paths to de facto parenthood (the Conover factors, parental unfitness, or exceptional circumstances).  Is there still a difference between de facto parent status and third party custody?  And, does this matter?

Unanswered Question 4 – Legal Parents

Who is a legal parent?  EN v. TR (2) defines this as a biological or adoptive parent for purposes of the first consent factor.  But as was recently pointed out to me, there are other paths to legal parenthood.  For example, presumed parenthood by birth of a child during marriage or affidavit of parentage.  And a declaration of de facto parenthood.

Both Conover and EN v. TR (2) refer to de facto parenthood as “parentage”.  “Parentage” also arises, for example, in Md Code Health-General §4-208, allowing entry of a parent’s name on the birth certificate when a court has established “parentage”.  An award of third party custody has not, so far, been considered a determination of “parentage” that would be reflected on a birth certificate.

What legal rights and obligations flow from a determination of de facto parentage?  And, did the Court of Appeals intend to confer those rights on those who prove unfitness or exceptional circumstances?


Child custody, third party custody, and de facto parentage law is (so far) created entirely by appellate court opinions.

The longer a document is, the greater opportunity for internal inconsistency.

And, reading audience matters.  With the vast majority of families self-represented (so without an attorney), the audience is families.  Not just Judges, Magistrates, and attorneys.  Clear, simple language is critical. 

Especially with children’s best interests & parents’ constitutional rights at stake.  Clarity will eventually come, as more appellate opinions interpret and refine EN v. TR (2) and de facto parent status.

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.