Maryland Extends Standard for Stepparents, Grandparents and Others to Seek Custody or Visitation

On August 30, 2018, the Maryland Court of Special Appeals ruled that the status of de facto parent – sometimes called ‘psychological parent’ – which was recognized by the Court of Appeals in Conover v. Conover, 450 Md. 51 (2016), is not limited to same sex couples. A de facto parent is a non-related adult who claims custody or visitation rights based upon the party’s special relationship in fact with a non-biological, non-adopted child.

In Kpetigo v. Kpetigo, the Maryland Court of Special Appeals approved a ruling by the Circuit Court for Montgomery County, Maryland that a stepmother qualified as a de facto parent and was, therefore, permitted to have visitation rights with her stepson. De facto parent status is important, because, unlike anyone other than a biological or adoptive parent, when seeking custody or visitation of a child, a de facto parent does not have to prove that another parent is either unfit or that exceptional circumstances exist in order to overcome the presumption that it is in the best interest of a child to be in the custody of a parent or to allow the parent to decide who can visit the child.

Generally, grandparents, stepparents, and others do not stand on equal footing with biological or adoptive parents, because fit parents have a constitutional right to raise their own children. If a third party files a claim for custody or visitation, the third party must first prove that the parent is unfit or that exceptional circumstances exist before a court ever decides whether custody or visitation is in the best interest of the child. Unlike other third parties, a de facto parent stands on equal footing with a parent and does not have to overcome the presumption. Instead, the de facto parent merely has to prove that it is the child’s best interest for the de facto parent to have custody or visitation of the child.

In Conover v. Conover, the Maryland Court of Appeals recognized de facto parenthood status. The Court approved the following four-part test to establish de facto parenthood: (1) that the biological or adoptive parent consented to, and fostered, the formation and establishment of a parent-like relationship between the child and the de facto parent; (2) that the de facto parent and the child lived together in the same household; (3) that the de facto parent “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 de facto parent “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.”

In Kpetigo v. Kpetigo, the Maryland Court of Special Appeals ruled that the trial court properly applied the four-part test established in Conover. The stepmother lived with the child from the time he was three years old until the time he was eleven. During that time, she took care of all of his needs. She bathed him, changed him, and put him to bed at night. She took the child to and from school, doctor and dental appointments, play dates, and extracurricular activities. She cooked his meals and packed his lunches, went to parent-teacher conferences, and arranged for his daycare, babysitters and camps. She helped to select his school. She also paid for the child’s camps and other things. She treated the child the same way that she treated her biological child with Mr. Kpetigo. When the child was young, he clung to his stepmother and would not go to anyone else. The child went on vacation with the stepmother’s family and referred to her family members as aunt or uncle. The Court of Special Appeals stated that once the stepmother proved that she was a de facto parent, the trial court properly found that it was in the child’s best interest to have visitation with his stepmother.

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