CUSTODY BY NON-PARENTS: GRANDPARENTS’ CUSTODY, THIRD PARTY CUSTODY

 Posted on August 13, 2021 in Uncategorized

Who/What is a Third Party?

Under Maryland law, if someone other than a parent seeks custody of a child (ie a grandparent) that person is considered a third party.  A third party is someone who is not the child’s biological parent or adoptive parent.  A third party may be related by parents’ marriage or blood (other than biological parent), or may be entirely unrelated to the child.  Legally, they are strangers to the child (unless certain conditions are met, which this series explores).

Case Law Concerning Third Party Custody:

In 2000, the U.S. Supreme Court issued its Troxel v. Granville, 530 U.S. 57 (2000) opinion on grandparent visitation rights.  In result, third party custody and visitation rights could no longer be evaluated based solely upon the best interests of the child.  Troxel calls for sufficient protection of a parent’s Constitutional right of care, custody, and control of their children.  After Troxel and before 2016, Maryland’s third party custody law backtracked and, frankly, suffered.

The first major development occurred in 2016 with Conover v. Conover, 450 Md. 51 (2016), which reestablished the legal category of De Facto parents.  The Conover case examined third party custody for a same-sex and/or transgender married couple (see its Footnote 1 regarding gender), only one of whom was biologically related to the child.

In 2017, the Burak case came out.  Burak v. Burak, 455 Md. 564 (2017), involves grandparent custody.  Maryland’s Court of Appeals refined the definitions and standards of “exceptional circumstances” and “unfitness” that a third party must prove to obtain custody.  For related topics, please check out these articles linked above.

In 2018, the Court of Special Appeals applied De Facto parent law to step-parents in Kpetigo v. Kpetigo, 238 Md.App. 561 (2018).

And, in its 2020 decision E.N. v. T.R., (Court of Special Appeals, August 25, 2020), the Court of Special Appeals answered questions involving parent consent to establishing a De Facto parent relationship and confirmed its open door for multi-parent families (so, families with more than 2 legal parents).

So What?

Third party custody is a complex, rapidly evolving area of family law.  Likely by necessity due to the infinite shapes of families and people acting as parents.  These dynamic changes mean that third parties have gained significant rights with each new appellate case over a fairly short period of time.

At Diamant Gerstein, LLC, we have successfully litigated third party custody cases. Please call us for a consultation if you are seeking custody of a child.