De Facto Parenting and Conover v. Conover

Being a parent is a rough but rewarding path many people choose to take. Even the best of parents may not always see eye to eye with their child’s other parent, or even their child but they have the constitutional right to make decisions they believe are best for their son or daughter at any given moment. Not every adult in the child’s life or household has that ability.

Choosing to be a parental influence in a child’s life regardless of biological ties is a huge responsibility to take on. While courts lean toward giving legal parents custody and control over their children, sometimes unfair situations arise that threaten a bond formed with a child that is not typically legally recognized. One such situation is when an LGBTQ couple chooses to divorce without having done a second-parent adoption. A court has the authority to award the non-biological spouse de facto parent status when it is in the child’s best interest.

What is de facto parenting?

De facto parenting is when a court finds that an adult, who is a non-biological, non-adoptive parent to a child, has acted in a parental role nonetheless, and may be legally entitled to that recognition. The change in legal status hinges on the relationship the adult and child have developed and if strong enough, it can be a foundation upon which to establish a legal right to custody and visitation.

Factors that may allow the court to award de facto parent status are:

• One legal parent consented to and fostered the parent-child relationship
• The adult lived in the same household with the child
• Significant parental functions were performed for the child, including voluntarily providing financial support
• A strong parent-child bond has been forged

Some examples of de facto parenting situations include:

• A family friend who takes a child in who has run away from unfit parents.
• Stepparents who take on a parent-child relationship with the child their spouse shares with someone else.
• LGBTQ parents who do not share a biological child, but both participated in raising children together and their marriage ends.

How does Conover factor into Maryland de facto parenting?

Imagine living with children you helped raise whether it was for a year or most of their childhoods and suddenly you’re dismissed from their lives through a painful divorce. You made early morning breakfasts to send your kids off to school, washed their clothes, helped with homework, showed up to cheer at school events, attended parent-teacher conferences, trotted them off to doctors’ appointments, and held them when their hearts were broken. You were there just like any parent, but now you’re being treated like hired help who can just be waved off and erased from their lives.

The case of Conover v. Conover established de facto parenting rights for non-biological parents in Maryland, which is a huge help to LGBTQ parents who, previous to the ruling, were at risk for the exact scenario above. The former precedent required showing a biological parent was unfit or that exceptional circumstances existed before being able to seek de facto parent status. With the Conover ruling comes the opportunity for a non-biological, non-adoptive parent to gain better legal standing that can aide in securing child custody or visitation rights regardless of the biological parent’s fitness.

For LGBTQ couples, raising children together without a second-parent adoption can be legally risky, because typically only one parent has biological ties to the children. The non-biological parent only had the avenue of adoption to give legal rights to the children should anything go awry in the marriage. De facto parenting is now an option for maintaining your relationship with your children.

The knowledgeable Columbia family law attorneys at McCabe Russell, P.A. understand the challenges our LGBTQ clients face every day. We have years of experience representing LGBTQ clients in child custody, child support, and adoption cases. To schedule your confidential consultation with a member of our legal team please call 443-812-1435, or we invite you to reach out to us through our contact form. We maintain additional office sin Fulton, Bethesda, and Rockville.