De Facto Parenthood: Two Legal Parents, but Consent by Only One

By Christopher W. Nicholson and Alexis L. Holiday

Note: This article was published in September 2020. It refers to the Court of Special Appeals and the Court of Appeals of Maryland, which were renamed the Appellate Court of Maryland and the Supreme Court of Maryland respectively in December 2022. 

Correction — July 2021: The Court of Appeals of Maryland reversed the decision analyzed below. In E.N. v. T.R., 474 Md. 346 (2021), the Court held that where a child has two legal parents, both must consent to and foster the parent-like relationship. The analysis in this article reflects the intermediate appellate holding and is no longer good law.

On August 25, 2020, the Court of Special Appeals of Maryland issued a reported opinion in E.N. v. T.R., No. 1231, September Term 2019 (Beachley, J.).

The Question Presented

The issue — technically one of first impression in Maryland — was whether one biological parent could unilaterally consent to and foster a de facto parent relationship without the prior knowledge or consent of the other biological parent.

The Court held that a de facto parent relationship may be established by the conduct of one parent. It noted that the question had been presciently recognized by Judge Watts in her concurring opinion in Conover v. Conover.

The Four-Part Test

To establish a de facto parent relationship — also called a psychological parent — Maryland applies a four-part test:

  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 toward 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.

E.N. v. T.R. addressed the first prong: a de facto parent relationship can be created by only one parent consenting to and fostering a parent-like relationship with a putative de facto parent.

The Constitutional Question

The Court went further, rejecting the claim that recognizing a de facto parent infringes a legal parent’s fundamental constitutional rights. Once de facto parent status is recognized, the Court observed, co-equal fundamental constitutional protections attach. That rule strikes a balance between parents’ fundamental rights to care for their children and children’s fundamental rights to be placed with caregivers who will promote their best interests.

Why This Matters

De facto parenthood is often the only path to standing for someone who has raised a child but has no biological or adoptive tie — a former partner, a relative, a stepparent. It arises frequently in third-party custody disputes and in LGBTQ+ family matters where only one parent holds legal status.

If you have questions about de facto parents or custody in Maryland, contact our Towson office or call (410) 339-4100.

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