Poly Custody in Maryland and D.C.

Last week, a lower court in New York issued a decision which granted custody to three different people. This is reason to celebrate (although there are also reasons to reserve celebration). However, here are some notesMaryland and D.C. families to consider.

The case that allowed for triple custody established the rule of "de facto" parenthood in New York and can be viewed here.

http://www.nycourts.gov/ctapps/Decisions/2016/Aug16/91-92opn16-Decision.pdf

This decision was handed down right around the same time as the Maryland Court of Appeals issued a decision establishing "de facto" parenthood in Maryland.http://www.mdcourts.gov/opinions/coa/2016/79a15.pdf Both (actually three cases, because there were two consolidated cases in New York) involved same-sex couples where the non-biological parent did not adopt the child.

There is a crucial difference between the New York case and the Maryland case. The New York decision specifically rejected a test for determining when de facto parenthood may be applicable. Maryland, on the other hand, adopted a test developed in Wisconsin: 1. a biological or adoptive parent must consent to the establishment and formation of a relationship between the child and the prospective parent; 2. the prospective parent and the child must have lived in the same household; 3. the prospective parent must have voluntarily supported the child, both financially and by taking responsibility for the child's care; and, 4. the prospective parent must have been involved with the child long enough for a parental-type relationship to have formed.

It is also important to note that while New York and Maryland reached these decisions last year, the District of Columbia has offered such a situation for about a decade! D.C. Code Sec. 16-831.01(1) defines a de facto parent as someone who either: lived in the same household as the child when the child was born or adopted, has taken on full and permanent responsibilities as the parent, and has held himself out as a parent (with the consent of the child's legal parents), or; has lived in the same household as the child for at least 10 of the 12 months preceding the action for custody, has formed a strong bond with the child with the support of the child's parent, has held himself as a parent (with the consent of the child's legal parents), and has taken on full and parental responsibilities of the child.

It is important to note that the father in the New York case might appeal, and then it might be overruled on appeal. Also, while this judge may have made this decision, one cannot expect similar results in every situation. If you are concerned about your, or your partners', parental rights, the best thing to do is to contact a licensed attorney focusing on polyamory and family law; feel free to contact me at .

ben@mdschenkerlaw.com.


***NOTE: NOTHING IN THIS BLOG POST IS INTENDED AS LEGAL ADVICE. THIS DOES NOT ESTABLISH AN ATTORNEY CLIENT RELATIONSHIP***

Ben Schenker