What Do We Mean by De Facto Parents

Are you someone who has nurtured a loving, parent-child relationship with a child who is not yours?  Do you consider this child to be your own and therefore have made changes in your personal life to further this bond? Have you shifted your work schedule, attended school activities, and/or gone on regular outings with the child?  Has that child’s parent or guardian prevented you from continuing this relationship?  If yes, this article is for you!

Maryland law now recognizes you as a parent.  Not a biological or adoptive parent, what the law calls a “legal” parent, but a de facto parent.  De facto means that based on your actions, you qualify as a parent who has the right to seek visitation and/or custody. 

To qualify as a de facto parent:

  • the actual (legal) parent must have permitted you and the child to have a relationship that can be described as a parent-child relationship 
  • you lived with the child
  • you devoted time to and cared for the child, and a
  • parent-child bond was formed

The parent-child relationship is the fact the law finds most important.

Here’s a brief background on what the law used to be.  In 2008, Maryland stopped recognizing de facto parents as having a legal right to sue for custody or visitation.  In the past, a de facto or surrogate (substitute or stand-in) parent had to first show that the biological or adoptive parent was either unfit or exceptional circumstances applied.  A parent can be unfit for different reasons, including his or her character, mistreatment of a child, drug or alcohol abuse, or poor finances.  Exceptional circumstances can include you creating a relationship with a child from the time the child was young, that the child will experience emotional harm if your relationship ends, and that the child has an unstable home environment.   

Only if a de facto parent could prove either unfitness or exceptional circumstances, (discussed above) the court would then apply the best interest standard applied in all visitation and custody cases.  Prior to the law changing, a de facto parent was treated similar to a stranger who was not on equal footing with a biological or adoptive parent in matters dealing with visitation and custody.  This was because the legal parent’s right to determine the care, custody, and control of a minor child is a fundamental right protected by both the Maryland Declaration of Rights and the U.S. Constitution.  Therefore, when the de facto parent filed a lawsuit for visitation or custody, the courts viewed the case as one between a fit parent and a stranger without the protection of Maryland law or the Constitution.  The requirement that surrogate parent prove unfitness or exceptional circumstances was a difficult standard to meet.  As a result, it created a legal barrier (or road block) in a de facto parent’s efforts to continue a nurturing relationship. 

As of 2016, this changed.  De facto parenthood is now a way you can gain custody and/or visitation to maintain a relationship with a minor when the child's parent objects.  Maryland courts have eliminated the unfitness and exceptional circumstances hurdle. The courts recognize that in fact, a de facto parent is not a stranger but an individual who has taken on a parental role.  Society has long changed from a time where a child could only have biological or adoptive parents. The court system realizes this.  By fixing this problem in the law, Maryland has worked to give de facto parents the acknowledgement they deserve.  De facto parents are the equivalent of legal parents and are held to the same best interest of the child standard in a custody or visitation hearing.

Fred Antenberg has been practicing in the area of Family Law for over 30 years in Howard County and the surrounding counties in Central Maryland. Give Fred a call today for a Free Initial Consultation if you have a desire to become a “de facto” parent. Call 410-730-4404.