Grandparent and Stepparent Custody Rights in Maryland After Conover v. Conover

What makes a parent a parent? The question is not as simple as it sounds. Most of the time a parent-child relationship is determined by biology, but we all know biological parents who don't act like parents, and adoptive parents or stepparents with no biological relationship to their child who do.

What happens, though, when there is neither a biological relationship nor a legal (adoptive) relationship between a child and someone who acts as a parent? Does that person have any rights if the child's legal parent decides to withhold access to the child?

This is a scenario that arises in the case of same-sex couples who break up, if one of the partners has given birth to a child who is not biologically related to the other partner. However, it happens even more commonly in a situation where a grandparent or stepparent has been actively involved in raising a child.

Conover v. Conover: A Change in Maryland Law

A recent case in the Maryland Court of Appeals, Conover v. Conover, addressed the issue of what right a third party who had served in a parental capacity should have to contest custody or visitation decisions. In Maryland, a biological parent has a constitutionally-protected interest in the care and control of her child. Custody determinations are intended to serve the best interests of the child. A mother's right to control, and a child's best interests, can conflict, and the law must somehow accommodate both.

Prior to Conover, Maryland case law dictated that in order to contest custody, a third party would have to show parental unfitness on the part of the biological parent, or some sort of exceptional circumstances. Even if a person had been a de facto parent—acting as a parent for all practical purposes—they had no special legal right to challenge custody or visitation. The de facto parent status was not legally recognized.

Conover involved a lesbian couple in which one partner was artificially inseminated while the couple was together, but prior to their marriage. Within a year after their divorce, Brittany, the biological mother, began denying Michelle access to their child, Jaxon, whom Michelle had never legally adopted.

The Conover court reversed previous case law, ruling unanimously that an adult who is considered a de facto parent is in a position to contest custody or visitation decisions and need not first prove that the biological parent is unfit, or exceptional circumstances. This applies to grandparents who meet the criteria for de facto parents, as well as stepparents who have been acting in this capacity.

What Defines a De Facto Parent?

In giving de facto parents standing to contest custody decisions, the Court of Appeals also addressed the question of how a de facto parent is defined. They chose to adopt a four pronged test set forth in another case by the Wisconsin Supreme Court:

(1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that 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 (4) that 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.

These factors require a biological parent to have been an active agent in fostering the relationship between the de facto parent and the child, and set a high enough bar that other parties in the child's life cannot easily qualify for de facto parent status. Grandparents who are raising, or helping to raise, their grandchildren, may meet this test. So might stepparents who have treated a stepchild as their own.

If you are interested in pursuing custody or visitation of grandchildren or stepchildren you've been involved in raising and wonder how this change in Maryland law may affect you, contact the Law Office of Shelly M. Ingram, LLC. We look forward to speaking with you.