DE FACTO PARENTHOOD – Court of Appeals Opinion

A new case decided in Maryland’s highest court may have far-reaching implications for third parties seeking custody of or visitation with children.

Michelle and Brittany Conover, a lesbian couple, divorced, and Michelle, the non-biological parent, sought visitation with Brittany’s child.  The child was conceived and born prior to the marriage of the parties.  The child was 17 months old when the parties separated, and Michelle had overnight and other visitation from the time of separation until the child was 27 months old.  Brittany filed for divorce, alleging that the parties had no children; Michelle filed a counter-complaint seeking visitation.

The trial court denied visitation rights to Michelle, stating that under the Court of Appeals’ holding in Janice M. v. Margaret K., 404 Md. 661 (2008), Maryland (1) did not recognize de facto parenthood;  (2) Michelle failed to prove that Brittany was unfit;  and (3) Michelle failed to prove that there were exceptional circumstances which would entitle her to visitation.

The Court of Appeals overruled Janice M., found that de facto parents have standing to seek custody or visitation, and need not show that the biological parent is unfit or that there are exceptional circumstances.

To determine if a party qualifies as a de facto parent, the Court of Appeals adopted the 4-part test set forth in the Wisconsin case, In re Custody of H.S.H. – K., 533 N.W.2d 419, 421 (Wisc. 1995), namely:

(1) the legal parent must consent and foster the relationship between the third party and the child;

(2) the third party must have lived with the child;

(3) the third party must perform parental functions for the child;  and

(4) a parent-child bond must be formed.

If a third party qualifies as a de facto parent, then the trial court will apply a best interest analysis to determine whether that party is entitled to visitation with or custody of the child.

The concurrence of Judges Battaglia and Watts points out that the Court of Appeals did not specify the burden of proof for the third party or how to bring the issue before the court.  They also point out a (perhaps unintended) consequence of the majority opinion:  while this approach may make sense when there is a same-sex couple, one of whom could be excluded from the child’s life on the simple basis of biology under the now-overruled Janice M.  decision (e.g. the result which Michelle faced until she got to the Court of Appeals), what  happens in a situation where two biological parents separate and then re-marry (or re-couple), thus potentially conferring on to the step-parent(s) de facto parenthood?  There could potentially be two de facto parents for a child under such circumstances – and possibly a lot of litigation over custody and visitation rights pertaining to that child.

The solution for the concurrence would be to require a party seeking de facto parenthood to include both biological parents in the action and to prove that both biological consented to the establishment of the de facto parenthood.  This seems like a common sense solution to the problem which the majority opinion may create in future litigation between de facto parents and biological parents.  There could, of course, still be two de facto parents for any particular child.

The other noteworthy feature of the Conover decision is that it does not disturb previous decisions dealing with “pure third party” requests for custody and visitation.  In other words, if a party is not the biological parent and does not qualify under the 4-part In re Custody of H.S.H. – K. test, then he will still have to prove that the biological parents are unfit or that there are extraordinary circumstances in order to be awarded custody or visitation with a child.  That remains a difficult obstacle for most third parties to overcome.

Please note that the above is not intended as legal advice and is no substitute for consultation with an attorney.