Third party “de facto” parent in child custody case

An unusual and highly controversial case has reached one state’s highest court, and the result is being received with mixed opinions in Colorado and across the nation. The case centers on a child born to a same-sex couple, where only one of the women had a biological link to the child. After making its way through the courts, the most recent ruling in the child custody case has given the other woman status as the child’s “de facto” parent. That means that the woman, who now identifies as a transgender man, will be able to seek custody and visitation rights to the little boy.

The child’s mother gave birth in 2010, and the couple married six months later. However, they split in 2011, at which time the second woman sought custody rights. A lower court ruled that she lacks the status to challenge the parental rights of a biological parent. Under appeal, the state’s Court of Special Appeals upheld that ruling.

When the case went before the Maryland Supreme Court, the rulings of the lower court were reversed. The court found that because the child’s biological mother intentionally cultivated a parental-style relationship with her former partner, the former partner has the right to seek custody rights without having to prove that the child’s biological parent is unfit. That means that the case will return to court, and both parties will have the right to fight for custody.

This outcome is viewed by some as a win for gay rights. For others, the case is a dangerous precedent that weakens the rights of biological and adoptive parents. The ruling opens the door for people with a variety of roles to pursue child custody rights, including stepparents, partners of single parents and extended family members who care for a child over a period of time. That, for many in Colorado, is a dangerous set of circumstances.

Source:, “Maryland’s Highest Court Establishes “De Facto Parenthood” in Lesbian Divorce and Custody Case“, Jeannette Richard, July 12, 2016

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