Conover v. Conover: Maryland’s Recognition of De Facto Parent Status

Conover v. Conover: Maryland’s Recognition of De Facto Parent Status

Brett Smoot*

In July 2016, the Maryland Court of Appeals overturned the Court of Special Appeals in Conover v. Conover, 450 Md. 51 (2016), overturning 224 Md. App. 366 (2015).  In a major win for the LGBT community, the Court of Appeals established de facto parentage in Maryland, giving those who qualify as de facto parents greater legal standing to contest custody and visitation decisions.  The Conover ruling signals a major shift in Maryland family law, one that coincides with the growing recognition of LGBT rights nationwide.


It has long been established that biological parents have a constitutional right to the “care, custody, and control” of their children.  Conover v. Conover, 450 Md. 51, 60 (2016).  This fundamental constitutional right is not absolute, however, as the primary goal of cases involving custody or visitation is to serve the best interests of the child.  Id. (citing Taylor v. Taylor, 306 Md. 290, 303 (1986)).  The concept of de facto parentage exemplifies the tension that can arise between these two concepts.  While a de facto parent has no biological relation to the child, a de facto parent cares for and nurtures the child in such a way that a parent-like relationship forms.  See DeFacto Parent Information,, (last visited Jan. 13, 2017).

De facto parentage has become particularly relevant with regard to same-sex relationships.  When a same-sex relationship between a biological parent and a non-biological parent ends, the rights of the non-biological parent to have access to the child are often uncertain.  See The “De Facto” Parent, Balt. Sun (July 10, 2016),  De facto parentage offers an opportunity for the non-biological parent to gain better legal standing in an attempt to secure custody or visitation rights.  Id.  Until the ruling in Conover, non-biological parents in Maryland were not afforded this opportunity.


Before the Conover decision, Maryland’s precedent was Janice M. v. Margaret K., 404 Md. 661 (2008).  In that case, the Court of Appeals overruled the Court of Special Appeals, holding that de facto parent status was not legally recognized in Maryland because “short-circuiting the requirement to show unfitness or exceptional circumstances is contrary to Maryland jurisprudence.”  Id. at 685.  In other words, by rejecting de facto parentage, Janice M. held that a non-biological parent seeking custody or visitation against a biological parent must first show that the biological parent is unfit or that exceptional circumstances exist.  Id.  If the non-biological parent could show either unfitness or exceptional circumstances, then the best interests of the child test could be applied.  Id.  This ruling set an incredibly high bar for the non-biological parent to overcome.

The court in Conover held that Janice M. was both “clearly wrong” and had been “undermined by the passage of time.”  Conover, 450 Md. at 85.  First, the court reasoned that the grounds on which Janice M. was decided were insufficient.  Janice M. was grounded in two other cases: McDermott v. Dougherty, 385 Md. 320 (2005) and Koshko v. Haining, 398 Md. 404 (2007).  Conover, 450 Md. at 67.  Both cases involved “pure third parties” in the form of grandparents, who did not claim to be de facto parents.  Id. at 67–69.  As a result, Conover held that Janice M. “seemingly ignored the bond that the child develops with a de facto parent” and failed to state why.  Id. at 69.  Second, Conover essentially held that the reasoning in Janice M. is outdated.  The court noted that Maryland’s recognition of same-sex marriage in 2012 through the Civil Marriage Protection Act undermines the precedential value of Janice M.  Id. at 77.  The court also emphasized that a majority of states, either by judicial decision or statute, now recognize de facto parent status or a similar concept.  Id. at 78–79.  For all of these reasons, the court decided to overturn Janice M. and recognize de facto parentage.


Once it decided to recognize de facto parent status, the court in Conover then needed to decide how someone in Maryland qualifies as a de facto parent.  The four-prong test established by the Supreme Court of Wisconsin in In re Custody of H.S.H.-K. was adopted.  533 N.W.2d 419 (1995).  Under this test, a third-party seeking de facto parent status bears the burden of proving the following when petitioning for access to a minor child:

(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 towards 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.

Id. at 435–36.

Although the test is a stringent one, it no longer requires de facto parents to prove unfitness of the biological parent or exceptional circumstances.  This ultimately serves the best interests of the child involved.  If a non-biological parent qualifies as a de facto parent, it is likely in the child’s best interests for that parent-like relationship to continue.  Conover, 450 Md. at 85 (“With this holding we fortify the best interests standard by allowing judicial consideration of the benefits a child gains when there is consistency in the child’s close, nurturing relationships.”).


Conover is yet another example of how the LGBT community is gaining more legal recognition and greater social acceptance.  However, this story is not quite over.  The Court of Appeals wrote the first chapter, but it will not likely be the last.  When the General Assembly reconvenes in 2017, it will have an opportunity to propose legislation regarding de facto parents.  Having been put on notice by the court, it will be interesting to see how the General Assembly responds, if at all, to the Conover decision.

*Brett Smoot is a second-year law student at the University of Baltimore School of Law, where he is a staff editor for Law Review.  He has interned with both the Judicial College of Maryland in Annapolis and Farace & Scherr, P.A.  He currently interns for Magistrate Hope Tipton, Domestic Relations Magistrate for Baltimore City Circuit Court.


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