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.

Exploring Parent Coordination in Cases of Coercive Control or Abuse

Parent coordination is a process designed to assist separated or divorced parents in resolving conflicts related to co-parenting and child custody outside of court. It is most often used in high-conflict cases, where the parties are unable to communicate effectively and reach shared decisions in the children’s best interest. Parent coordinators are either mental health professionals or attorneys, who have specialized training to assist parents with communication and reduce conflict in many cases.

Sometimes as the neutral third party, they can weigh in to break the impasse on certain issues so that decisions can be made more quickly than in court or formal mediation, however, its appropriateness and efficacy in situations involving coercive control or abuse are subject to scrutiny and debate. Let's delve into the complexities of parent coordination in these challenging circumstances.

Understanding Coercive Control and Abuse:

Coercive control refers to a pattern of behavior used by one partner to dominate, intimidate, and manipulate the other in an intimate relationship. This behavior may include isolation, threats, surveillance, and psychological manipulation, aimed at establishing power and control over the victim. Abuse, whether physical, emotional, or psychological, can have devastating effects on victims and their children, perpetuating cycles of trauma and dysfunction.

Oftentimes, the depths of the abuse are not fully brought to light in an initial custody or divorce proceeding. Many people will try to avoid a protracted and costly court case hoping that once the case has settled the acrimony between the parties will subside. While this is generally the experience most parents will have, this is not true for high-conflict cases.

Challenges in Parent Coordination:

In cases involving coercive control or abuse, parent coordination faces significant obstacles that may compromise its effectiveness:

1. Power Imbalance: Coercive control dynamics often involve a profound power imbalance between the parties, with one exerting undue influence and control over the other. This power dynamic can undermine the ability of the victim to advocate for his/her interests and make informed decisions during parent coordination sessions.

2. Safety Concerns: Safety is paramount in cases of abuse or coercive control. The presence of ongoing abuse or the threat of retaliation may create an environment of fear and intimidation, making it difficult for victims to engage fully in the parent coordination process without risking further harm.

3. Manipulative Tactics: Perpetrators of coercive control may use parent coordination as a platform to perpetuate their abusive behavior, employing manipulative tactics to maintain control over the narrative and undermine the credibility of the victim. This can further exacerbate power imbalances and impede the pursuit of equitable outcomes. 

Critiques of Parent Coordination in Abuse Cases:

Critics argue that parent coordination may inadvertently perpetuate harm in cases of coercive control or abuse in these 3 ways:

1. Minimizing Abuse. Parent coordination processes that prioritize cooperation and conflict resolution may overlook or minimize the presence of abuse, failing to adequately address the safety and well-being of victims and their children.

2. Reinforcing Victim Blame: By emphasizing collaboration and shared decision-making, parent coordination may inadvertently reinforce societal norms that place responsibility on victims to mitigate conflict and accommodate the needs of their abusers.

3. Exacerbating Trauma: For victims of abuse, engaging in parent coordination sessions may retraumatize them, triggering distressing memories and feelings of vulnerability. The pressure to engage with an abusive ex-partner in a cooperative manner can compound the trauma and undermine the victim's sense of agency and autonomy.

On the other hand, those in support of Parent Coordination in cases involving abuse or coercive control would argue that a parent coordinator acts as a buffer for communications and can later become a witness in court if necessary. These sessions are often done remotely now, thereby alleviating the need for in-person interactions, and the parent coordinator can monitor the sessions and can step in to minimize the power imbalance or minimize the impact of negative behaviors by insisting on respectful communication and enforcing equal opportunities for both sides to be heard during the process.

In the end, there is a very delicate risk/reward analysis that each parent must discuss with counsel to decide if parent coordination is appropriate for that particular case. Remember, the primary goal is to provide a stable and supportive environment for your child. To further understand the pros/cons of this process, please contact our office to speak with a dedicated family law attorney. Our group of highly experienced attorneys is ready to help answer your questions and guide you through this process.