When a court decides a dispute about child custody or visitation, the court must balance what is best for the child with a parent’s constitutional right to direct the way the child is raised. How the court decides the case depends on your role and the other party's role. Are you, and the other party, the child’s parents, de facto parents, or third parties?

Topics on this page

• Who is a parent?
• Who is a de facto parent?
• Who is a third party?
• Grandparents
• Stepparents
• Parental Unfitness and Exceptional Circumstances
• How does the court decide the case? Your role and the other party's role.
• Child Custody – A 4-Part Video Series (from the Maryland Courts)

 

Who is a parent?

"Parent" means a "legal parent."  There are several ways to establish legal parentage.

 

Who is a de facto parent?

A de facto parent is someone the court treats like a parent, due to the person’s relationship with the child. De facto parents have a right to seek custody or visitation of a child, even if that child is not biologically their child.

Maryland has adopted a four-factor test to determine de facto parent status. If you are petitioning the court for custody or visitation of a child as a de facto parent, you must prove the following:

1. that the biological or adoptive parent(s) consented to, and fostered, the formation and establishment of your parent-like relationship with the child;
2. that you and the child lived together in the same household;
3. that you 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 you have been in a parental role for a length of time sufficient to have established a bonded, dependent relationship with the child.
    

Read the Law: E.N. v. T.R., 474 Md. 346 (Court of Appeals 2021); Conover v. Conover, 450 Md. 51 (Court of Appeals 2016) 

 

Who is a third party?

Third party means anyone other than a parent or de facto parent. This usually includes grandparents and other close family members and friends. Maryland law does not give third parties the right to seek custody or visitation of a child. Third parties seeking child custody or visitation must show that the parents are unfit, that there are exceptional circumstances justifying an award of custody, or both. 

 

Grandparents

Maryland law allows grandparents to ask the court for both child custody and visitation. The court will treat a grandparent asking for custody or visitation as a third party. The exception to this rule is if the grandparent can prove to the court that they are a de facto parent. 

If a grandparent is not a de facto parent, they are unlikely to successfully petition for visitation if the child’s parents object to the request. Judges assume that parents act in their children's best interests and give great weight to their preferences regarding who gets to spend time with their children. If your grandchild's parent objects to your visitation, you must show that the parent is unfit or exceptional circumstances exist. The exceptional circumstances must show that the lack of grandparent visitation will hurt the child. The alleged harm must be substantial and concrete, such as abuse, neglect, or risk of emotional damage if the child is unable to see the grandparent.
 

Read the Law: Maryland Code, Family Law, Section 9-102

Read the case: Koshko v. Haining, 398 Md. 404 (Court of Appeals 2007)

 

Stepparent

Maryland law has no provision granting child visitation rights to stepparents. Generally, stepparents who have not adopted a child or been declared a child’s guardian have no parental rights or obligations after a divorce. Maryland courts consider a stepparent a third party, making it difficult to obtain visitation rights. However, if a stepparent meets the legal standard to be considered a de facto parent, the stepparent will have the legal right to seek custody or visitation of the stepchild. As a de facto parent, the stepparent would not need to prove exceptional circumstances or parental unfitness.

Read the Law: Conover v. Conover, 450 Md. 51 (Court of Appeals 2016); Kpetigo v. Kpetigo, 238 Md.App. 561 (Court of Special Appeals 2018)

 

Parental Unfitness and Exceptional Circumstances

As in all visitation cases, the court will always consider the best interest of the child in deciding whether to grant visitation. Generally, the court will honor the custodial parent's wishes and presume that any schedule for visitation presented by the parent is in the child's best interest. For third parties (this includes grandparents), there is a threshold requirement that the third party prove either the legal parents' unfitness or exceptional circumstances to overcome the general presumption in favor of the legal parents.

When determining whether a biological parent is unfit, the court may consider whether:

1. The parent has neglected the child by manifesting such indifference to the child's welfare that it reflects a lack of intent or an inability to discharge their parental duties.
2. The parent has abandoned the child.
3. There is evidence that the parent inflicted or allowed another person to inflict physical or mental injury on the child, including, but not limited to physical, sexual, or emotional abuse.
4. The parent suffers from an emotional or mental illness that has a detrimental impact on the parent's ability to care and provide for the child.
5. The parent otherwise renounces their duties to care and provide for the child.
6. The parent has engaged in behavior or conduct that is detrimental to the child's welfare.

The factors listed above are guides to help the court determine whether a parent is unfit. There may be other factors that may be relevant in specific cases.

Read the law: Burak v. Burak, 455 Md. 564 (Court of Appeals 2017)

When determining whether exceptional circumstances exist, the court may consider the following factors:

1. The length of time the child has been away from the biological parent
2. The age of the child when care was assumed by the third party
3. The possible emotional effect on the child of a change of custody
4. The period of time which elapsed before the parent sought to reclaim the child
5. The nature and strength of the ties between the child and the third party custodian
6. The intensity and genuineness of the parent's desire to have the child
7. The stability and certainty as to the child's future in the custody of the parent

The factors listed above are guides to help the court determine whether exceptional circumstances exist, and there may be other factors that may be relevant in a specific situation.

Read the law: McDermott v. Dougherty, 385 Md. 320 (Court of Appeals 2005)

 

How does the court decide your case? Your role and the other party's role.

	You are a: Parent	You are a: De facto parent	You are a: Third party
Other party is a: Parent	If you are a parent or de facto parent, and the other party is a parent or de facto parent, the court will decide solely based on the “best interests of the child.”		The court will decide for the other party unless you show “exceptional circumstances,” or that the other party is “unfit.” If a third party proves "exceptional circumstances" or that the other party is "unfit," they do not automatically win. Instead, that "levels the playing field," and the court will decide solely based on the "best interests of the child."
Other party is a: De facto parent			It is not clear what the court would decide. The court might decide solely based on the “best interests of the child,” or the court might decide in favor of the de facto parent unless the third party can show that “exceptional circumstances,” or that the de facto parent is “unfit.”
Other party is a: Third party	The court will decide for you unless the other party shows “exceptional circumstances,” or that you are “unfit.”	It is not clear what the court would decide. The court might decide solely based on the “best interests of the child,” or the court might decide in favor of the de facto parent unless the third party can show that “exceptional circumstances,” or that the de facto parent is “unfit.”	The court will decide solely based on the “best interests of the child.”

 

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Child Custody – A 4-Part Series from the Maryland Courts

These four videos cover important terms, the steps in filing a custody case, the legal proceedings, and contested trials.

Part 1: Important Terms from the Maryland Courts

Part 2: How to File from the Maryland Courts

Part 3: Proceedings from the Maryland Courts

Part 4: Trial from the Maryland Courts