De Facto Parents Are Now Recognized by Maryland’s Highest Court

On Friday July 8, 2016, the Court of Appeals decided that de facto parents exist and that will have impact for same gender parents and/or non-same gender parents as well as children.

A de facto parent is defined (definition from Google) as “a person who has been found by a court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child’s physical and psychological need for care and affection, and has assumed the role for a substantial period”.

The actual case had the following facts: The married couple were lesbians who entered into a same sex marriage in 2011 when the District of Columbia legally permitted same sex marriages. Through artificial insemination a son was born and the birth certificate listed the birth mother of the parties and no father was listed. The couple separated in 2013 but the birth mother refused to permit the child to visit with her spouse.

Prior statutory and case law had rejected the principal of de facto parents. The following types of cases will be affected by the court’s most recent decision on de facto parents: awarding custody, determining who is considered eligible for an order by the court for exclusive use and possession of the marital home where a step child resides, visitation, and many other cases involving families. Cases that involve domestic violence will most likely also be affected.

Before the most recent decision of the Court of Appeals, eligibility to obtain an exclusive use and possession of the marital home was limited to natural children of the parties or adopted children of the parties. Under this recent decision, the eligibility will most likely now be extended to include a step child, who is one of the parties’ natural or adopted child.

At present there is no defined definition of the term “de facto parent”. The definition I cited about was obtained through a Google search. The courts will have to develop a definition that will be applied to the term “de facto parent”. In the majority of states, there are widely accepted definitions of de facto parents.

Maryland law needs to catch up with the fact that many new family scenarios exist now that were not in existence before or that existed but were ignored by the courts or in which the parties were not provided with equal protection of the law.

It will take time to develop definitions and what shall be in the best interests of the parties’ children. Our challenge is before us and many new issues will be resolved as definitions and standards are created by case law and the legislature.

If you are seeking custody and/or visitation, you need to obtain an attorney who has experience dealing with family law issues. Even though there will be a transition between the laws before the most recent de facto parent case, the experience of your lawyer may be one of the most important decisions you make in selecting an attorney.

I have been practicing law for over 30 years in Howard County, Maryland, and surrounding counties and in Baltimore City and have represented a great many family law clients in custody and visitation cases during that time. Call me, Fredric Antenberg, for a free consultation at 410 730 4404.