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Md. appeals court: De facto parents may get attorney’s fees in custody cases

Adults so intimately connected to a child’s upbringing as to be de facto parents are eligible for attorney’s fees when their right to custody, visitation or support is challenged without substantial justification by another party, Maryland’s second-highest court has held.

In its reported decision, the Court of Special Appeals also ruled Wednesday that a nonparent who intervenes to challenge an award of custody, visitation or support may be ordered to pay attorney’s fees.

The court rejected arguments that the Maryland Family Law Article allows awards of attorney’s fees to and against biological or adoptive parents only.

In rendering its decision, the court read broadly Section 12-103(a)(1) of the Family Law Article, which states that attorney’s fees may be awarded in custody, support or visitation cases involving “a child of the parties.”

The term “child” is not limited to biology or adoption, because “de facto parent status effectively elevates a third party to equal footing with biological parents for the purpose of determinations of custody and visitation,” the Court of Special Appeals stated.

“In other words, once a party is a de facto parent, his or her status in a dispute over custody or visitation is equal to that of a biological parent, adoptive parent, or other de facto parent because, as among those individuals, a court rendering a custody decision must consider only the best interest of the child, not any difference in the status of the parents,” Chief Judge Matthew J. Fader wrote for the court.

Family law attorney Ferrier R. Stillman, who was not involved in the case, said Friday that the court arrived at “the right decision” regarding the availability of attorney’s fees for de facto parents.

“That statute was written before the Court of Appeals recognized de facto parents,” Stillman said, referring to the Maryland high court’s landmark 2016 decision Conover v. Conover. “De facto parents are parents under the law and so they shouldn’t be distinguished from biological and adoptive parents.”

Stillman is with Tydings & Rosenberg LLP in Baltimore.

The Court of Special Appeals added that assessing attorney’s fees against nonparents is in keeping with the legislative intent of the Family Law Article.

To deny the assessment “would have the rather odd result of advantaging non-parents over parents in custody, visitation, and child support proceedings by (1) absolving only non-parents of financial responsibility for taking meritless positions and (2) permitting only them to take advantage of their wealth to increase the expense of the litigation for the other parties without the possibility of fee shifting,” Fader wrote. “We see no indication that the General Assembly intended to afford non-parent intervenors such a privileged position over parents.”

Fader was joined in the opinion by Judges Timothy E. Meredith and Irma S. Raker, a retired jurist sitting by special assignment.

The Court of Special Appeals rendered its decision in upholding a Baltimore City Circuit Court judge’s order that paternal grandparents pay the maternal grandmother $57,289.32 in attorney’s fees for having mounted a baseless challenge to her continued custody of their grandchild.

As evidence of the baselessness, the judge cited the contradictory statements the paternal grandmother gave in deposition before trial and during her trial testimony.

Specifically, the paternal grandmother had stated at deposition that her son was fit to have custody of the child and that the maternal grandmother – with whom the child lived and was the de facto parent – was unfit. However, at trial, the paternal grandmother testified that her son was unfit and the maternal grandmother was fit.

The paternal grandparents sought review of the ordered attorney’s fees, arguing that the order was improper under the Family Law Article because neither they nor the maternal grandmother were the child’s biological or adopted parents.

The Court of Special Appeals rejected that argument in David A. et al. v. Karen S., No. 2481, September Term 2018.

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