Updated: January & October 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:
- What is Third Party Custody?
- What’s a De Facto Parent?
- Exceptional Circumstances
- Unfit Parents
- Participating as a Third Party in a Custody Case
- De Facto Parents & Multi-Parent Families
- Grandparent Visitation
- The Future
Since July 2016, Maryland’s Appellate Courts changed the landscape of child custody cases involving third parties – people who are not biological or adoptive parents – in two important ways. I will generally refer to these third parties as “non-parents”.
First, by recognizing a category of non-parents as “de facto parents” in Conover v. Conover. Second, by creating a legal framework for non-parents who are not de facto parents to seek custody in Burak v. Burak.
There are now two distinct categories of non-parents in child custody cases:
- de facto parents; and,
- everyone else.
And, each category has a separate legal standard that the non-parent must prove for the court to consider granting custody to the non-parent.
What is a de facto parent?
Generally speaking, a de facto parent is a non-biological, non-adoptive parent who has a parent-like relationship with a child.
Legally speaking, a de facto parent is someone who proves that:
- The biological or adoptive parent consented to, and fostered, the non-parent’s formation and establishment of a parent-like relationship with the child;
- The non-parent and the child lived together in the same household;
- The non-parent 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; and,
- The non-parent 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.
If the court finds that the non-parent is a de facto parent, the court may then decide custody based on the child’s best interests.
Note, the Appellate Court cautioned that:
“In deciding whether to award visitation or custody to a de facto parent, the equity court should also take into account whether there are other persons who have already been judicially recognized as de facto parents. A court should be very cautious and avoid having a child or family to be overburdened or fractured by multiple persons seeking access.” This calls into question whether grandparents, neighbors, childcare providers, and other nonparental relatives would be considered de facto parents, or whether a child could have more than a total of two “parents” (whether biological/adoptive or de facto).
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:
- To recognize that a child can have more than two (2) legal parents.
- 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.)
What if a non-parent is not a de facto parent?
Then the non-parent is a third party.
All third parties seeking child custody must show that the parents are unfit, that there are exceptional circumstances justifying an award of custody, or both. This is the first step.
The second step is for the court then to consider what custody arrangement is in the child’s best interests. What is not clear in the Burak case is how the child’s best interests will be considered. Should the court consider what custody arrangement is in the child’s best interests among the parent(s) and non-parent(s)? Or, should the court consider whether awarding custody to the non-parent third parties would be detrimental to the child?
How does a non-parent third party prove unfitness?
(1) the parent has neglected the child by manifesting such indifference to the child’s welfare that it reflects a lack of intent or an inability to discharge his or her parental duties;
(2) the parent has abandoned the child;
(3) there is evidence that the parent inflicted or allowed another person to inflict physical or mental injury on the child, including, but not limited to physical, sexual, or emotional abuse;
(4) the parent suffers from an emotional or mental illness that has a detrimental
impact on the parent’s ability to care and provide for the child;
(5) the parent otherwise demonstrates a renunciation of his or her duties to care and provide for the child; and
(6) the parent has engaged in behavior or conduct that is detrimental to the child’s welfare.
With respect to neglect, “neglect for the purposes of a finding of unfitness [now] means that the parent is either unable or unwilling to provide for the child’s ordinary comfort or for the child’s intellectual and moral development.”
With respect to fitness, in Burak, parental lying at trial, drug use, and sexual behavior (polyamorous relationship and promiscuity) were offered as evidence of parental unfitness. However, the Appellate Court decided that these behaviors are not, in and of themselves, evidence of parental unfitness. To evidence unfitness, such behaviors must be shown to be detrimental to the child or, at the least, that the child is aware of them. Without corresponding detriment, it remains to be seen if a child’s awareness, alone, is really sufficient evidence of unfitness.
These factors are meant to be guides, and not the exclusive considerations, for determining parental unfitness. For a more detailed discussion of unfitness, please see my post, Maryland Grandparent Custody & Visitation – What is Parental Unfitness?
How does a non-parent third party prove exceptional circumstances?
By engaging in a two-step process, proving:
First, the length of time a child has been away from a biological parent and that the child has been away from the biological parent(s) and with the non-parent for a long period of time.
If the first step is proven then second:
(1) the age of the child when care was assumed by the third-party;
(2) the possible emotional effect on the child of a change of custody;
(3) the period of time which elapsed before the parent sought to reclaim the child;
(4) the nature and strength of the ties between the child and the third party custodian;
(5) the intensity and genuineness of the parent’s desire to have the child;
(6) the stability and certainty as to the child’s future in the custody of the parent;
(7) the stability of the child’s current home environment;
(8) whether there is an ongoing family unit; and,
(9) the child’s physical, mental, and emotional needs.
This list is not exclusive. The court may consider any other facts and circumstances. Whatever the evidence, it should be directly related to the child’s health, safety, and well-being.
For a more detailed discussion of exceptional circumstances, please see my previous post, Maryland Grandparent Custody & Visitation – What Are Exceptional Circumstances?
So, what are “best interests”?
That’s a bigger discussion for another post (which you can read here), but in short, best interests are any facts and circumstances regarding the child, and usually focus on:
1) fitness of the parties
2) character and reputation of the parties
3) desire of and agreements between the parties
4) potentiality of maintaining natural family relations
5) preference of the child
6) material opportunities affecting the future life of the child
7) age, health and sex of the child
8) residences of parents and opportunity for visitation
9) length of separation from the natural parents
10) prior voluntary abandonment or surrender
11) parties’ capacity to communicate and to reach shared decisions affecting the child’s welfare
12) willingness of parties to share custody
13) relationship established between the child and each party
14) potential disruption of child’s social and school life
15) geographic proximity of parties’ homes
16) demands of parties’ employment
17) age and number of children
18) sincerity of parties’ request
19) financial status of the parties
20) impact on state or federal assistance
21) benefit to the parties
Plus, any other factors. Montgomery County v. Sanders, 38 Md.App. 406 (1978) and Taylor v. Taylor, 306 Md. 290 (1986).
Are the best interest factors considered the same way for de facto parents, non-parent third parties, and parents?
Clearly, parents are on equal legal footing when it comes to consideration of the best interest factors. Parents are the joint natural guardians of their children, the court can award custody to either or both, and neither parent is presumed to have any right to custody that is superior to the right of the other parent. Parents also have a constitutional right to care, custody, and control of their children.
As between a parent and de facto parent, once a non-parent is found to be a de facto parent, the Conover case implies that the best interest factors will be considered equally as to both. Specifically, the Conover case states: “With this holding we fortify the best interests standard by allowing judicial consideration of the benefits a child gains when there is consistency in the child’s close, nurturing relationships. We do so carefully, adopting the multi-part test…This test accommodates, we think, the dissonance between what is in the best interest of a child and a parent’s right to direct and govern the care, custody, and control of their children.”
As between a parent and non-parent third party, the Burak case phrases this in two slightly different ways: on the one hand, with which party the child’s best interests are served versus whether custody with the non-parent will be detrimental to the child’s best interests. Probably a minor point, considering that the multi-step process laid out in Burak requires much of the same evidence when proving unfitness and/or exceptional circumstances as proving best interests.
It will be interesting to see how non-parent third party custody cases are decided following Burak (which I’m now exploring in this updated 2021 blog series on 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. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.