Please ensure Javascript is enabled for purposes of website accessibility

Don’t confuse ‘de facto parenthood’ with ‘exceptional circumstances,’ court says

Andrea-Leahy-Fucheck

Court of Special Appeals Judge Andrea M. Leahy wrote that the judge erroneously conflated the exceptional circumstances test for establishing custody by a third party with the consent requirement for de facto parenthood. (The Daily Record/File Photo)

An adult intimately involved in a child’s upbringing cannot be deemed a “de facto parent” with a claim to visitation or custody unless both of the youngster’s legal parents consented to and fostered the child’s parent-like relationship with the individual – regardless of how neglectful the parents might have been, Maryland’s second-highest court has ruled.

But custody may still be transferred if the individual who sought de facto parenthood can show that “exceptional circumstances” – such as neglect – warrant the transfer in the child’s best interest, the Court of Special Appeals stated in a reported 3-0 decision this month.

In its ruling, the court overturned a judge’s award of de facto parenthood to a child’s maternal grandparents, with whom the boy was been sent to live, after concluding his parents had impliedly consented to the parent-like relationship by neglecting him.

The court, however, upheld the judge’s custody award to the grandparents based on the exceptional circumstance of neglect.

In its decision, the court cited U.S. Supreme Court decisions that parents have a constitutional right to raise their children absent exceptional circumstances.

The Court of Special Appeals said the judge erroneously conflated the exceptional circumstances test for establishing custody by a third party with the consent requirement for de facto parenthood.

“To substitute the requirement that the existing legal parents consent to the formation of a parent-like relationship between a child and third party, with a finding of exceptional circumstances, would confer constitutional parental standing rights on potentially countless parties,” Judge Andrea M. Leahy wrote for the Court of Special Appeals. “Consider, for example, … the fact that our trial courts often find exceptional circumstances to  grant custody to a third party on a temporary basis.”

The court’s decision leaves a nearly 3-year-old old in the custody of the child’s maternal grandparents, who were awarded temporary custody of the boy after the parents had overdosed on heroin when he was 6 months old in July 2020

Within days, the grandparents – William and Colleen Foster – sued for custody in Anne Arundel County Circuit Court, citing the parents’ drug use and neglect of their child, identified in court papers as C.

The father, John Basciano, responded that he is receiving treatment for his drug problem so he can “live a sober life in order to be the best parent he can be” for his son. Basciano asked the circuit court to award him either “sole physical and legal custody” of the child or “determine a graduated access plan” that results in him having primary physical custody.

The mother, Katie Foster, never consented to the de facto parent relationship and her whereabouts are unknown, according to court papers.

The circuit court judge ruled last January that the Fosters had established de facto parenthood “through exceptional circumstances.”

The judge also noted the child had lived with the grandparents since July 2020 and that they had “taken on real parenting responsibilities” for him, including his care and educational development at their own expense, while the father was permitted supervised visitation.

Basciano sought review by the Court of Special Appeals, saying the Fosters could not be deemed de facto parents because he had not consented to the relationship, which was court-ordered.

The Court of Special Appeals agreed but upheld the judge’s finding that exceptional circumstances warranted custody be given to the Fosters despite not being de facto parents.

“Although the judge found that father had made significant strides in his recovery, for a substantial period of C.’s life, the judge concluded that father had abandoned C. and ‘neglected him,’ requiring intervention by the state and the Fosters to protect C and care for his needs,” Leahy wrote. “We conclude, based on the unique aspects of this case, that C. was away from father for a sufficient time to shift constructive custody to the Fosters.”

Basciano’s attorney said the decision denying the Fosters de facto parent status restored her client’s superior right to custody of his child if and when a court determines Basciano is fit to resume custody and the exceptional circumstances no longer exist.

Had the Fosters remained de facto parents, they would have been on equal footing with Basciano with regard to claims of custody even in the absence of an exceptional circumstance, added Cynthia E. Young, an Annapolis solo practitioner.

The Fosters’ attorney, Laura E. Burrows, disagreed with the court’s decision regarding de facto parenthood but said she and her clients have no plans to seek review by the Court of Appeals.

Burrows said the General Assembly should act to ensure that loving and willing grandparents be provided custody of their grandchildren in cases where parents battling drug addiction can neither care for their children nor provide the consent needed for de facto parenthood.

The courts are “not in line with the changing dynamics of families in light of the opioid crisis,” said Burrows. of the Law Office of Laura E. Burrows LLC in Annapolis.

“The courts and the statutes have not kept up,” she added. “Hopefully, the legislature will step in.”

Leahy was joined in the opinion by Judges Christopher B. Kehoe and Dan Friedman.

The Court of Special Appeals originally issued the decision as an unreported opinion on Sept. 29 and reissued it as a reported opinion on Nov. 1. The court did not explain why.

The Court of Special Appeals issued its decision in John Basciano v. William R. Foster et ux., No. 1978, September Term 2021.