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Modern Family Law Views – Breaking News

July 13, 2016

De Facto Parents Recognized by Maryland’s Highest Court

Reverses Prior Case Law

In a momentous decision, the Maryland Court of Appeals just reversed itself and recognized the de facto parent doctrine, thus widening the scope of who can sue for custodial rights.  This decision, by a reformulated Court, explicitly overruled its own holding in Janice M. v. Margaret K., 404 Md. 661 (2008),which refused to recognize the de facto parent doctrine in Maryland.  The Court’s new position gives persons with no legal or biological status as parents, but who meet certain other criteria, the right to sue for custodial rights without showing parental unfitness or exceptional circumstances.  The new decision is in Conover v. Conover, No 79, September Term, 2015.

The Court of Appeals reversed the holding of Janice M., finding it was “clearly wrong and contrary to established principles” and it had “been superseded by significant changes in the law or facts.”  The high court cited repeatedly and favorably to Judge Irma S. Raker’s dissent in Janice M.  Specifically, it adopted Judge Raker’s view that two cases heavily relied on by the Janice M. majority[1] were distinguishable because they involved “pure third parties” as opposed to persons claiming de facto parent status.  It also adopted Judge Raker’s view that the Supreme Court case of Troxel v. Granville[2] (holding a Washington State third party visitation statute unconstitutionally broad as applied), again relied on by the Janice M. majority, stopped short of barring de facto parent rights.   The Court of Appeals also relied on the passage in Maryland of a same-sex marriage act and the recognition of de facto parent status or a similar concept by the majority of states as evidence that “evolving events have rendered Janice M. obsolete.”  It further relied on the broad equity jurisdiction over “custody or guardianship of a child” granted to the courts by the General Assembly of Maryland, and on the inherent parens patriae duties of the courts, to reject the argument that recognition of de facto parent rights should be left to the legislative branch.

As a result, Maryland’s highest court, exercising “common law jurisprudence,” explicitly adopted the view that de facto parents are distinct from other third parties, and need not show parental unfitness or exceptional circumstances before seeking custody or visitation.  It further explicitly adopted the test from the Wisconsin Supreme Court[3] previously used by the Maryland Court of Special Appeals, to determine the existence of a de facto parent.  This test places on the party seeking de facto parent status the burden of proving that:

1.        The biological or adoptive parent consented to, and fostered, the formation and establishment of a parent-like relationship with the child;

2.        The de facto parent and the child lived together in the same household;

3.        The de facto 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

4.        The de facto 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.

A concurring opinion from Judge Greene raised the concern that other factors, in addition to de facto parent status, were probative of whether circumstances exist to outweigh the constitutional presumption in favor of the legal or biological parent controlling access to a child.  Another concurring opinion from Judge Watts, joined by Judge Battaglia, expressed the concern that the Court’s test for de facto parents could allow multiple persons to claim that status based on the actions (“consent” and “fostering” from the first prong of the test) of only one of two biological parents, especially following a parental separation.

Regardless of these lingering concerns, no doubt now exists that Maryland has joined the majority of states and has significantly expanded the ranks of those who may claim parental rights.  The hope now is that this will lead to greater familial continuity and stability, all in the “best interest of the child.”

[1]           McDermott v. Dougherty, 385 Md. 320, (2005) and Koshko v. Haining, 398 Md. 404 (2007).

[2]           530 U.S. 57, 120 S. Ct. 2054 (2000).

[3]          See In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wisc. 1995).

© 2016 by Hadrian N. Hatfield

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Hadrian N. Hatfield