What is the Future of Third Party Custody?

by | Jan 17, 2021

(OR Questions (Mostly) Unanswered)

Updated October 2021:

This series discusses:

Immediate Questions

Kpetigo and E.N. v. T.R. raise far more questions than answered.  Most pressingly:

  • Is there a limit on the number of legally recognized parents a child can have?
  • Can a parent overcome one-sided consent and prevent third party custodial rights from being established?
  • What is the de facto standard following E.N. v. T.R. (July 2021)?
  • What about child support?

Limiting the Number of Parents

There is now nothing in the law to limit the number of legal parents a child can have.  Theoretically, each new parent relationship could beget another potential legal parent.  Only time will tell from Maryland’s appellate Courts or legislature with statutory intervention.

On the one hand, multi-parent families recognize developments in social science’s attachment theory – that children can have multiple attachments (as opposed to outdated thinking that there could be only one primary attachment).  And that those attachments are important and worth preserving (which is also something Maryland’s Commission on Child Custody Decision Making recognized as well).

On the other, not every relationship is an attachment and not every attachment equals a parent.  For now, the only checks on creating parent-like relationships are the parents themselves and their either 1) not consenting to creating a de facto parent relationship (so, not delegating one’s parental responsibilities) or 2) not surrendering care of a child to a third party (and basically abandoning their child) and giving rise to exceptional circumstances.  A parent should be cautious of how much parental responsibility they delegate to a non-parent.

Preventing Establishment of Third Party Custody Rights

One-sided consent to establishing de facto parenthood has gone (mostly) by the wayside thanks to the Court of Appeals in July 2021.  E.N. v. T.R. (the second) updates the law to require the consent of both parents to satisfy the first factor of the Conover test.  But the Court may allow de facto parenthood to be established upon a showing of unfitness or exceptional circumstances as to the non-consenting parent.  The appellate opinion (and so the law) is unclear.

This development invites the question of how might a non-consenting parent “go on record” about their objection?

Maryland’s best interest custody factors include any agreement of the parties.  Perhaps parents should address third party custody rights in their parenting agreements or consent custody orders?  For example, an agreement that neither party can unilaterally delegate parental responsibility to a third party or consent requires both parents?  Or, specifying what parenting roles that only the parents can have and no one else?  Such as, discipline, involvement in caregiving and important decisions, and not referring to a non-parent as a parent, “mom”, “dad”, and the like.

The bigger difficulty is how the other parent can “go on record” with objections to a third party’s involvement without the appearance of interfering (or, worse yet, acting against the child’s best interests).  For example, expressing objection to a step-parent taking a child to the doctor or attending parent-teacher conferences (absent an IEP, which can be an exception);  or, objecting to step-parent’s greater involvement than parent in day-to-day care or discipline.  Even if a parent “goes on record”, current third party custody law does not yet confirm if that will make any difference in stopping the creation of De Facto parent rights (or even be favorably viewed relative to the children’s best interests).

Child Support

Obviously, the court can order a parent to pay child support when there are two (2) parents.  While the child support statute and Maryland case law do not affirmatively state that a third party primary custodian is entitled to child support, they favor this.

But, can a court order three (3) or more parents to share child support?  And if so, how is a court supposed to calculate this?  Maryland’s child support law hasn’t caught up to third party custody law and Maryland’s appellate Courts have yet to tell us.

This calls upon attorneys to be creative in the meantime.  Maryland’s child support law is founded on the “income shares” model – that parents share in the responsibility for providing financial support for their children and that support should be paid in proportion to the parents’ incomes.  That could apply in multi-parent families, taking into account all parents’ incomes.

Two potential ideas:

1) needs-based support (Voishan v. Palma, 327 Md. 318 (1992)), looking at the child’s actual financial needs and dividing those needs among all parents in proportion to income; or,

2) using the child support guidelines framework, by calculating the guidelines using the actual number of children and the total combined income of all parents to get a base child support figure, then allocating the resulting child support and proportionately shared expenses (such as work-related childcare, children’s health insurance premium, and extraordinary medical expenses) among all parents in proportion to their incomes, giving credit to the paying parent. This is far more complicated, if not impossible, with shared physical guidelines.

Other, More Troublesome Questions

  • Once recognized as a legal parent, can legal parenthood be terminated? How?
  • Do family law professionals (Judges, attorneys, custody evaluators, mental health providers) need to rethink and reframe the meanings of “family” and “parents”?
  • What issues should attorneys have in mind when advising family law clients about third party custody issues?


On termination of legal parenthood, currently parents cannot terminate their parenting rights in a custody case to become a non-parent.  (Other types of cases allow this in limited circumstances.)  So, once declared a De Facto parent, is one forever a legal parent?

As a De Facto parent, our current case law does not tell us.  Maryland appellate cases do tell us, though, that once one is determined a De Facto parent, one is on equal legal footing with biological or adopting parents.  In families with two parents (one of whom is De Facto), I question if a court would recognize relinquishment of De Facto parenthood without another parent stepping in.  This is because the law does not favor, in other contests, children having less than two (2) parents.  But, would De Facto parents in multi-parent families be treated differently, if a relinquishment meant a child would still have at least two (2) remaining parents?  Should multi-parent families be treated differently?  And, if termination can occur, what legal framework would apply?

On the other hand, a third party remains a third party relative to the biological or adopting parents.  An award of third party custody does not bestow upon the third party the title of “parent” or some greater legal standing.  While there is not a legally recognized process for terminating custody rights in a custody case, modification of third party custody could effectively lead to a termination if loss of custody if called for by material change and the child’s best interests.

What is a Family and Who are Parents?

For professionals, this raises many questions, that deserve our thought…

For attorneys:

  • When representing blended families (with potential for third party custody), who is the client?
  • To what extent do we include third parties and potential third parties in conflict checking?
  • How and when should we advise clients about third party custody rights?
  • Can limitations on third party custody rights be enforced if part of a prenuptial and cohabitation agreements?

For all family law professionals:

  • Do we need to broaden our thinking about a child’s best interests beyond a 2-parent family?
  • If so, to include whom? And, how many?
  • When do we seek out third parties? Or, only consider those who participate and seek legal rights?
  • Does a child’s best interests call upon us to think more broadly?
  • How and when should third parties be included and considered in custody evaluations? And other court services?

Advising Clients

While there is some overlap with the topic above, how do we:

  • balance a child’s best interests from the involvement of important third parties
  • against protecting our clients’ legal rights
  • without stressing or damaging the family system or growth of a blended family?

Third party rights can arise at any time.  For example in the midst of a separation or divorce, when a parent relies more heavily on friends and family to help with caregiving.  Or as a relationship grows, upon moving in with or marrying a romantic partner.  Or, when creating a multi-generational household.  The opportunities are infinite.

And, there is a philosophical element to this.  The attorney’s practice philosophy – whether child-/best interest-focused versus zealous client advocate – may influence whether, how, and when to raise these concerns.  Timing of advice may be critical because, if late, may not unmake a De Facto parent relationship or exceptional circumstances.

Longer-Term Questions

  • Is a third party a necessary party to a custody case? Can custody cases be litigated without third parties?
  • How far can parental constitutional rights be pushed?

Necessary Party

Maryland Rule 2-211 requires persons, who can be served, to be included in litigation if complete relief cannot be awarded in their absence.  In custody litigation, all parents (biological and adopting) are necessary parties (Fairbanks v. McCarter, 330 Md. 39 (1993)), including when a third party seeks custody or visitation rights.  But, are third parties necessary?  And, should they be?

Maryland law allows third parties to intervene in litigation (Burak v. Burak, 455 Md. 564 (2017)).  This requires the third party to take affirmative action.  What, though, of a third party serving in a caregiver role who does not affirmatively seek to be part of the litigation?  Or, is not informed of the litigation?  Can the best interests of a child be determined without that person being on notice and given the opportunity to participate?

Inclusion is not the same as participation in litigation.  A person can be named as a party, served as a party, but elect not to participate.  In those situations, a case can be decided without them.  (Though, I have also seen courts reluctant to change the status quo without the participation of a primary caregiver.)  So, a party (even a third party) cannot be made to participate.  My point is the opportunity.

Only the future holds the answers…

Constitutional Rights

The ultimate question – How far can parental constitutional rights be pushed?  What are the limits?  Troxel v. Granville, 530 U.S. 57 (2000) began a retraction of third party rights.  Gradually, third party right have reemerged with constitutional boundaries.  Their testing by Maryland’s appellate courts have moved those boundaries over time, seemingly in favor of third parties.  E.N. v. T.R., 247 Md.App. 234 (2020)’s one-sided consent to De Facto parenthood is especially a constitutional head scratcher…corrected to a degree by the higher appellate court in July 2021.

Constitutionality rests in the hands of Maryland’s appellate Courts and, ultimately, the US Supreme Court.  Until appealed to and appeals allowed by Maryland’s highest Court, I expect third party custody rights to continue to flourish.  Time will tell.  Hopefully, without a backlash like what we saw after Troxel v. Granville.

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 LinkedInFacebookInstagramTwitterLindsayParvis.com, and YouTube.