How we define the word “family” is growing and evolving as the culture evolves and the laws shift to accommodate the way people are living their lives. A de facto (“in fact”) parent is someone who has developed an important relationship in the life of a child. It is a person who has cared for the child, and offered loving, caring support for the child and developed an emotional bond with the child. Non-biological parents who have invested time, love, and attention in the life of a child can now be granted legal rights and responsibility in the life of the child for which they have been caring.
By recognizing de facto parent status, Maryland law has offered non-biological parents and caretakers legal standing regarding child custody and visitation.
How de facto parenting is helping non-traditional families
In cases where the biological parents are no longer able to care for their children, de facto parenting status has helped other family members show they provide direct care. For example, our firm has experience representing grandparents whose adult children have died, or who have become addicted to drugs or alcohol; our clients’ grandchildren often live with them, and they are the primary caregivers.
Before, one option grandparents had was to legally adopt their grandchildren, a process they could not undertake if the parents did not lose, or give up, their parental rights. Other options included becoming the grandchildren’s legal guardians, or their custodians via parental consent. Now, because Maryland recognizes de facto parenting, we can use this concept to acknowledge the direct caregiving role that they have played in their grandchildren’s lives.
Grandparents and grandchildren are not the only beneficiaries, of course. De facto parenting status can also help adult children who care for younger siblings, as well as stepparents who are the primary caregivers of those children.
De facto parenthood and same-sex parents
When a same sex relationship between the biological parent and a non-biological parent comes to an end, the non-biological partner could lose access to the child. In the past, if the non-biological parent wanted to pursue custody and visitation, he or she would have to prove the unfitness of the biological parent or prove exceptional circumstances. Now that de facto parenting status has been recognized by law, if non-biological parents want to pursue custody and visitation, they have legal standing to do so.
The first step in pursuing custody and visitation is to be declared a de facto parent, which must be decided by the court. The Supreme Court of Wisconsin established the tests for this process (In re Custody of H.S.H.– K 533 N.W.2d 419 (1995)), which Maryland adopted. There are four elements which must be addressed:
- “the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;
- the petitioner and the child lived together in the same household;
- the petitioner 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
- the petitioner 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.”
If your petition is approved, you would be on equal legal footing with the child’s biological parent regarding the care, custody and control of the child.
If you are in the process of ending a relationship with a partner, and you are concerned about being able to continue your relationship with the child, it is important that you work with an experienced Maryland family law attorney who can assert and protect your right to pursue custody and visitation. If you are a parent who is concerned because someone is trying to pursue de facto custody rights of your child, we can help you with that as well.
At Cynthia H. Clark & Associates, LLC we are here to advocate for the best interests of your child. Our family law attorneys protect you and your family in all matters of family law. To reserve a consultation at our office in Annapolis, please call 410.921.2422 or fill out our contact form.