De Facto Parentage: Child Custody in Maryland When You Are Not the Biological Parent
A new custody case, identified by the initials B.O. v. S.O., was recently decided by the Court of Special Appeals in Maryland regarding de facto parentage and third-party standing. This is an important case to know about if you, or someone in your family, is not a parent to a child biologically or by adoption and wants to seek custody.
In Maryland, a third-party (i.e. the party who is not a biological or adoptive parent) can only petition the Court for custody of a child under two circumstances:
De Facto Parentage: The third-party can establish themselves as a “de facto parent” meaning that they have served the role of a parent to a child that is not theirs.
Third-Party Standing: The third-party must prove that the biological/adoptive parents are unfit, or that exceptional circumstances exist so much so that the child remaining in the custody of the biological/adoptive parents will be detrimental to the child.
To establish de facto parentage in Maryland, the third-party filing for custody must meet a high bar of legal expectations and cannot do so without the participation of one or both biological parents.
The Court follows a four-part test to determine whether the third-party is considered a de facto parent. The de facto parent in question must prove all four parts to be recognized as a de facto parent. The first part of the test is that the biological/adoptive parents consented to and fostered a parent-like relationship between the third party and the child. This factor was analyzed by the Maryland Court of Special Appeals in the case of B.O. v. S.O. In that case, the child’s aunt was petitioning the court for custody over the biological mother’s objection. The aunt argued that the mother consented to a parent-like relationship. The mother said that she did not. Ultimately, the court agreed with the mother and denied the aunt’s request for custody of the child. This case is important because it clarifies the first prong of the four-part test, and says that both parents must consent to a parent/child relationship between child and third party. In B.O. v. S.O., the child had lived with the aunt for an extended period of time, which was undisputed. Naturally, the aunt took on a parental role to the child. However, at no point did the biological mother actually consent to this arrangement. The mother was actively trying to regain custody of the child, which was ignored or refused by the aunt. The mother opposed the aunt’s having custody of the child from the beginning. However, given circumstances outside of the mother’s control, the child remained with the aunt. There was no evidence presented to prove that the mother ever consented—by her word or actions—to the aunt serving in a parental role to the child.
The aunt in that case also tried to prove that the mother was unfit, which would give the aunt standing to petition the court for custody of the child even if she was not a de-facto parent. Although the aunt presented evidence of the mother’s allegedly “unfit” background—mental health, substance abuse, physical punishment, and neglect—the court did not find that any of the evidence presented rose to the level of “unfitness.” Accordingly, the aunt’s request was denied. Because Aunt could not prove one of the four de facto parent factors, and because she could not prove parental unfitness, she could not seek custody of the child. The aunt’s request for custody of the child was denied, and custody was awarded to the mother. The lesson, in this case, is that both parents must consent to a parent/child relationship between the child and a third party. Without both parents’ consent, a third party cannot be a de-facto parent with the ability to seek custody of a non-biological, non-adoptive child.
Disclaimer: This area of family law is extremely complicated. If you are seeking custody of a child that is not biologically yours, or if someone is trying to get custody of your biological/adoptive child, you should contact an experienced family attorney.
If you have questions about obtaining child custody, please contact Wasserman Family Law at 410-842-1070. Our legal team of experienced family law attorneys is here to guide you through the process.
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