When a same-sex marriage ended in divorce, and there was a child involved, there was the potential for complications when it came to custody. Unless one parent was a biological parent and one parent adopted the child, or both parents legally adopted the child with whom neither shared a biological bond, the parent with no biological or legal ties to the child could be denied custody.
The Maryland Court of Appeals, in Conover vs. Conover, 450 Md. 51, 60 (2016), unanimously ruled that family court judges can consider certain non-biological parents the child’s de facto parent when deciding child custody and visitation cases. Conover v. Conover overturned the precedent, Janice M. v. Margaret K., 404 Md. 661 (2008), which rejected the idea of de facto parenting unless it could be proven that the petitioner could show that the biological parent was unfit, and that there were exceptional circumstances. The latest decision not only recognized de facto parenting in Maryland, it also decided how someone might qualify as a de-facto parent.
This is a critically important decision. Not only does it help ensure that children can spend time with both of their parents – and vice versa – but it also ensures that both parents contribute financially to the care of the children. Before, an LGBTQ parent who was denied custody could make an argument that he or she should not have to pay child support either, as the law did not recognize that person legally as a parent. Establishing de facto parenthood under the law helps protect the children by ensuring parenting time and financial support.
Establishing de facto parenthood in Maryland
To establish the legal definition of a de facto parent, the Maryland court adopted the test that the Supreme Court of Wisconsin established in In re Custody of H.S.H.– K 533 N.W.2d 419 (1995):
- “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.”
This test does not require the de facto parent to prove the unfitness of the biological parent, nor does it require the showing of exceptional circumstances which protects the best interests of the child in question. If a non-biological parent can meet the requirements of being a de facto parent, it may be in the child’s best interest to continue that relationship.
Now, non-biological parents may assert their de facto parental rights without undermining the rights or privileges of the biological or legal parent. Conover vs. Conover places the best interest of the child, and how they might be best served, above the outdated grounds in Janice M. v. Margaret K.
Cynthia H. Clark & Associates, LLC is a premier divorce and family law firm in Annapolis, serving same-sex and traditional couples throughout Maryland. We invite you to call us at 410.921.2422, or to fill out our contact form, to reserve a consultation time with an experienced lawyer.
