What is a De Facto Parent versus a Third Party for Purposes of a Custody Case?

In most cases, only the biological parents of a child have a right to petition for or modify custody. But there are situations that can arise in which other adults in the child’s life may be a good custodial fit instead of, or in addition to, the biological parent. When those circumstances arise, Maryland recognizes different avenues for individuals who are not the biological parent to have standing in a custody case. This blog explains the two ways a non-biological adult has standing to participate in a custody case of a child, and how to prove those standing requirements in court.

The two avenues to achieve standing in a custody case where the child is not biologically related to the party is (1) the establishment of de facto parentage, or (2) if de facto parentage cannot be proven, the party can act as a third-party intervenor and prove the unfitness of the legal parents or exceptional circumstances.

To prove de facto parentage, Maryland requires the alleged de facto parent to show that s/he has met four factors, which were established in Conover v. Conover. There is a high burden on the party seeking standing because of the great impact that becoming a de facto parent has in our legal system. If a judge makes a finding that a party is a de facto parent, that party will have the same rights and legal standing as a biological parent would.

The four factors that must be shown by the party seeking standing are as follows: (1) the party must prove that s/he resided with the children for a certain period. This should go beyond an occasional overnight or quick visit. (2) the person must show that s/he has performed parental functions for the children to a significant degree. Parental functions often include taking responsibility for the children’s education, providing support for the children’s development, ensuring the children’s basic needs are met, and much more. (3) the party must demonstrate that there is an established parent-child bond with the children. (4) A party must show that the legal parents have consented to the de facto parentage and that the biological parents fostered the parent-child relationship between the de facto parent and the child. The consent by the biological parents can be expressed, or implied. If all four of the factors are met, the de facto parent will have the same rights as a biological parent would when it comes to standing. Following that determination, the court would then proceed to a typical custody determination by looking to the best interests of the child.

For interested parties who cannot prove de facto parentage, but are seeking to intervene in a custody case, that party must prove the unfitness of both legal parents or show that there is an exceptional circumstance that warrants the award of custody in their favor or prove both factors. The court, in In re Adoption/ Guardianship of H.W., has defined an exceptional circumstance as one “that would make parental custody detrimental to best interests of the child.” The standard of proof is preponderance of the evidence, meaning that the greater weight of the evidence points to the unfitness of the parents, or, that an exceptional circumstance has arisen.

Ultimately, a court’s custody determination can be one of the most influential decisions in a child’s life. While the court has acknowledged the right that biological parents have in the control of custody, it has also recognized that in some cases, the most “fit” person to have custody is not related by blood. To ensure that our legal system protects the children in those situations, de facto parentage and third-party intervention are mechanisms that should be used, if applicable.

If you are involved in a complicated situation in which you believe you are a de facto parent, you want to intervene because it seems the parents are unfit, or, if someone is seeking custody of your children that is not entitled to do so, contacting an experienced family law attorney can be instrumental to the success of your case. Call Markham Law Firm today to learn more about your rights and what you are entitled to regarding custody.