Maryland Third Party Custody - Consent, De Facto Parents & Multi-Parent Families

ByLindsay Parvis October 11th, 2021

Updated October 2021:

Third party custody is one of the fastest developing areas of Maryland law, seeing many major changes since 2016.  This series of articles explores these developments and raises questions about where this area of the law is heading.

This series discusses:

Why Does Consent Matter?

Consent is a critical element of De Facto parenthood.  To be a De Facto parent requires the legal parent’s consent to and fostering of the third party’s and child’s parent-child relationship.  Without that consent, one cannot be a De Facto parent.  But, what if there are two biological/adoptive parents and only one consents to the De Facto relationship with a third party?

What are Multi-Parent Families?

A multi-parent family is one in which three (3) or more parents are recognized as legally responsible for the care, custody, and control of a child.

Maryland’s legal approach to multi-parent families has evolved since 2016.  In 2016’s Conover opinion, the Court of Appeals’s majority cautioned against multi-parent families.  Footnote 18 recommended taking into account, when deciding custody, whether others had already been recognized as De Facto parents and cautioned courts to “avoid having a child or family be overburdened or fractured by multiple persons seeking access.”  One of the concurring opinions found this caution odd in light of the unanswered question of unilateral consent.  As discussed in my last blog, the lower appellate Court’s 2018 Kpetigo decision opened the door (but did not definitively resolve) legally recognized multi-parent families and unilateral parental consent (so, consent of only one parent) to formation of a De Facto parent relationship.

Until E.N. v. T.R., 247 Md.App. 234 (2020) and the Court of Appeals’s E.N. v. T.R. (July 2021), which usher in the era of legally recognized multi-parent families and address unilateral parent consent.

E.N. v. T.R.

This case involved a mother, father, and father’s (non-spouse) partner.  Mother’s and father’s children lived primarily with father and father’s partner, and mother informally agreed to this.  During Father’s incarceration, the children continued to live with father’s partner.  Father’s partner and mother disagreed about visitation and custody, so father’s partner filed for custody.  Father submitted a written consent to partner’s custody (though was not a party in the case and did not participate).  At trial, father’s partner was found to be a De Facto parent and granted sole physical custody, with alternate weekend visitation to mother and joint legal custody to partner and mother.

On appeal, the lower appellate Court concluded that one parent can create a De Facto parent through consent and fostering that relationship.  The Court adopted Conover’s dissenting discussion that a De Facto parent relationship could be created when:

  • there are two parents
  • by only one parent’s consent and knowledge
  • without the knowledge and consent of the other parent

The opinion does not speak to establishment of a De Facto parent relationship over the ongoing, explicit objection of the other parent and seems to decline to decide whether implied consent is sufficient.

Additionally and unsurprisingly (though bears remembering), the Court reiterated that once De Facto parent status is conferred on a party, that party and the parents are on equal legal footing, including constitutionally.

This was appealed and addressed by the highest appellate Court in July 2021, giving some clarity and raising still more issues.

Most importantly, E.N. v. T.R. (the second) decided that both parents must consent to the establishment of a De Facto parent-child relationship.  Consent may be express or implied and must be knowing and voluntary.  Implied consent may be shown through action or inaction, for example not objecting to the establishment of the parent-like relationship.

Next E.N. v. T.R. decided that exceptional circumstances or unfitness may be considered about the non-consenting parent.  Worryingly, due to internal inconsistencies in the opinion’s language, the exact legal standard is unclear.  The opinion suggests that unfitness and exceptional circumstances may be a path to De Facto parenthood, when until now they were only paths to third party custody or visitation.  Which makes deciding these cases and advising clients difficult at best.

What’s the Big Deal?

E.N. v. T.R. (the second) raises more questions than it answers.  For example:

  • Is there a limit on the number of legally recognized parents a child can have?
  • How can a parent overcome one-sided consent and prevent third party custodial rights from being established?  Without this reflecting negatively on the non-consenting parent?
  • Once recognized as a legal parent, can legal parenthood be terminated?  How?
  • What about child support?
  • How far can parental constitutional rights be pushed?

All – and more – to be discussed in my final blog about the future of third party custody…  But first, a brief detour to grandparent visitation rights.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation.  Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.

You can follow her for discussion, news, and developments in Maryland family law on, and YouTube.

Lindsay Parvis

Client-focused legal representation starts with listening.  I listen to my clients’ needs, goals, and priorities.  From there, I educate my clients about the law and process to empower them with information and knowledge. This is especially important because my clients often feel unheard and powerless when facing a situation that feels out of control.

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