Maryland law allows a court, in its discretion, to award costs and attorney’s fees to the prevailing party in an action involving child custody, support, or visitation. Last summer, Maryland’s second highest court ruled that “de facto” parents are among those who can recover attorney’s fees and costs in connection with custody and visitation disputes. This decision by the Court of Special Appeals of Maryland in the case of David A. v. Karen S. is important because it recognizes that certain third parties who take on parental roles and who intervene in child custody and visitation cases can recover their litigation costs.

What is a De Facto Parent?

Maryland law recognizes that in some cases, third parties may be entitled to special status as “de facto parents” with regard to children. The term “de facto” is used frequently in law and translates to “in fact” (as contrasted with “de jure,” which means “in law.”) In general, a de facto parent holds a distinct and higher status than other third parties with respect to a particular child.

In Conover v. Conover, the Maryland Court of Appeals, which is Maryland’s highest court, held that third parties with de facto parent status may contest child custody or visitation. But what exactly is a de facto parent? As the court explained in the Conover case, and as other Maryland courts have subsequently recognized, a de facto parent is one who, based on consideration and satisfaction of certain conditions, is recognized as having transcended third party status. According to the Maryland Court of Appeals’ decision in Conover, in order to achieve de facto parent status, a person must show that:

• His or her parental-type relationship with the child was consented to and fostered by the child’s parent (either biological or adoptive);
• He or she lived in the same household as the child;
• He or she took significant responsibility for the child’s education, development, and care, including making support contributions, without expecting to be paid for doing so; and
• He or she has served in a parent-like role for a long enough period of time to have established a parent-child type bond.

Attorney’s Fees Under Maryland Family Law 12-103(a)(1)

Under Family Law Section 12-103(a)(1) of the Maryland Code, a court is authorized to award court costs and attorney’s fees to either party in a case seeking a decree or modification of a decree involving child custody, support or visitation. In David A. v. Karen S., the court found that this statute did not limit the recovery of costs and attorney’s fees to a parent. Rather, the court concluded, the plain language of the law allows for recovery of costs and fees by a de facto parent. In this case, the de facto parent to whom the fees were awarded was the child’s maternal grandparent. Importantly, the fees were imposed against the child’s paternal grandparents, who had also intervened in the matter.

If you have questions about litigation costs in child custody, support or visitation proceedings, or your rights as a de facto parent, contact an experienced Maryland family law practitioner at The Law Office of Robert R. Castro, serving Southern Maryland, including Charles County, Prince George’s County, Calvert County, and St. Mary’s county,