'De facto parenthood'

When couples divorce, the biggest victims of the breakup are often the children, who lose the daily support and encouragement of a parent they've grown to love and trust. Non-custodial parents can experience similar feelings of loss, confusion and anger over the failure of a relationship.

But as long as they are the child's biological or legally adoptive parent, the law makes provisions for them to continue to enjoy many of the rights and responsibilities of parenthood. A court, for example, can award them visitation and custody rights as well as compel them to financially support a youngster if that is in the child's best interest.


The legal consequences of separation and divorce are quite different, however, when one partner in a relationship gone sour is neither biologically related to nor the legally adoptive parent of a child he or she has helped raise. It's an all-too-common situation among step-parents in blended families and among non-biological parents in gay relationships.

Even though they may have performed all the duties of parenthood over many years — and even though the child calls them mommy or daddy — Maryland law turns a blind eye to their parental rights and responsibilities. In a separation and divorce proceeding, the state's courts regard them as "legal strangers" to the children they have reared.

Legislation in this year's General Assembly, sponsored by Sen. Richard Madaleno in the Senate and Del. Geraldine Valentino-Smith in the House, aims to change that. The proposal would give non-biological parents and parents who never formally adopted the children they raised the right to petition for "de facto" parental status when the adults' relationship ends. The proposed law would allow such individuals to seek visitation and custody privileges as if they were the child's legal parent. It stemmed from a case involving same-sex adoptive parents, and it is being pushed by the LGBT community, but it is just as important for same-sex couples.

The measure would allow judges to confer "de facto" parental status on such caregivers even if the child already has more than one legal parent. One common reason many step- and non-biological parents don't legally adopt the children they help raise is that Maryland prohibits a child from having more than two legal parents, as listed on the child's birth certificate. In practice, that means if a step- or non-biological parent wishes to adopt, one of the legal parents must relinquish his or her parental rights (unless they are deceased or only the mother's name appears on the certificate).

Since it can be difficult to persuade people to give up such rights — even if they're no longer part of the child's life and haven't been for years — it's often easier for step- and non-biological parents to simply care for the children even though they lack the protections legal parents enjoy. Usually that's good enough as long as the adults' relationship goes smoothly. But when it doesn't, the non-biological parent is at a horrible disadvantage in not being able to petition the court for the same custodial and visitation rights the legal parent enjoys.

It may be useful to note that the ability to petition for "de facto" parental status also cuts both ways. While it allows the non-biological parent to seek custody and visitation rights, it also allows the legal parent to seek child support payments from a former spouse or partner. Especially if the custodial parent isn't the household's main breadwinner, there are circumstances in which the partner who made most of the couple's money when they were together should still bear some financial responsibility.

Maryland's legal definition of parenthood, and the rights and responsibilities it confers, was drafted to help protect families and the children raised in them from the economic hardship of divorce. But the statute no longer reflects the diversity of modern families or the evolving needs of parents and children. It needs to be updated.

The bills sponsored by Mr. Madaleno and Ms. Valentino-Smith wouldn't overturn the basic aims of family law in the state or automatically require judges to accept a longtime caregiver's claim to a place in a child's future. That's something that would still have to be determined after a hearing of the facts in each case. But the legislation is a modest step toward extending traditional parental rights to people who can prove they truly have earned them.