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

In The Court of Special Appeals of Maryland, No. 1231, September Term, 2019: E.N. v. T.R., Opinion by Judge Beachley

By: Christopher W. Nicholson, Esquire and Alexis L. Holiday, Esquire

On August 25, 2020, the Court of Special Appeals issued a reported opinion in E.N. v. T.R.  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.

The Court of Special Appeals noted that this issue was presciently recognized by Judge Watts in her concurring opinion in the case of Conover v. Conover.

In order to establish a de facto parent relationship (also known as a psychological parent), the Court of Appeals adopted 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 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.

In E.N. v. T.R., the Court of Special Appeals held that for the first part of the four-part test, 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 Court of Special Appeals went further in its opinion and denied the claims that the recognition of a de facto parent infringes upon the constitutional fundamental rights of a parent.  The Court of Special Appeals noted that once the de facto parent is recognized there are co-equal fundamental constitutional protections.  Such a rule strikes the proper balance between parents’ fundamental rights to care for their children and the children’s fundamental rights to be placed with caregivers who will promote their best interest. 

If you have any questions about de facto parents or custody in Maryland, please contact Christopher W. Nicholson or Alexis L. Holiday at Turnbull, Nicholson, & Sanders, P.A., (410) 339-4100 or please email them or   

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