Grandparent and Third-Party Custody in Maryland: The Parental Presumption and the Narrow Paths Around It

A grandmother has raised her grandson for three years. She enrolled him in school, takes him to the pediatrician, signs his permission slips. Then his mother calls and says she is picking him up Saturday, and she is not bringing him back. The grandmother asks the question every caregiver in that position asks: after everything I have done, what are my rights?

The honest answer is not the one anyone wants. In Maryland, a grandparent has no automatic right to custody or visitation — none at all. Neither does an aunt, an uncle, an adult sibling, a stepparent who never adopted, or a family friend. A fit parent has a constitutional right to direct how their child is raised, and a Maryland judge begins every one of these cases presuming the parent is right.

That is the wall, and pretending otherwise helps no one. But Maryland law leaves doors in it. Here is where they are and what it takes to get through one.

Three Categories, and Everything Turns on Yours

A legal parent is a biological or adoptive parent, or someone whose parentage has been legally established. A de facto parent is someone the court treats as a parent because of the relationship they actually built with the child. A third party is everyone else — and unless you can prove de facto status, a grandparent is a third party.

The distinction is not academic. If you are a parent or de facto parent and the other side is a parent, the court decides purely on the child’s best interest. If you are a third party, the court decides for the parent unless you first prove unfitness or exceptional circumstances. Two different starting lines in the same courtroom.

What Section 9-102 Says, and What It Leaves Out

Maryland’s grandparent visitation statute, Section 9-102 of the Family Law Article, says an equity court may consider a grandparent’s petition for reasonable visitation and, if it finds visitation in the child’s best interests, may grant it. Read alone, that sounds like an open invitation.

It is not. In Koshko v. Haining, decided in 2007, Maryland’s high court confronted the constitutional problem with reading 9-102 literally. The Supreme Court had already held in Troxel v. Granville that a fit parent’s decisions about their child’s associations get special weight. So the court read a threshold into the statute: a grandparent facing a parent’s objection must first show unfitness or exceptional circumstances demonstrating that the lack of visitation would significantly harm the child.

That harm must be substantial and concrete — abuse, neglect, or a real risk of emotional damage if the child loses the relationship. Missing a child and believing you would do a better job are not enough. Nearly two decades later, Koshko is still the framework, undisplaced by legislation.

The statute is one sentence long. The case law that governs it is the reason most grandparent petitions fail before a judge ever asks what the child needs.

Door One: Parental Unfitness

In Burak v. Burak, Maryland’s high court laid out what a court may weigh: neglect showing genuine indifference to the child’s welfare or an inability to carry out parental duties; abandonment; inflicting, or allowing someone else to inflict, physical, sexual, or emotional injury; illness that damages the ability to care for the child; renouncing parental duties; and other conduct harmful to the child.

Understand the standard as courts actually apply it. A parent does not have to be a good parent to be a fit parent. Poor judgment, a messy house, a difficult personality, and choices you would never make do not add up to unfitness. Courts reserve that finding for serious failures, and they require proof.

Door Two: Exceptional Circumstances

This is often the more realistic door for a caregiver who has had the child a long time. Under McDermott v. Dougherty, a court looks at how long the child has been away from the parent; how old the child was when the third party took over; the emotional effect a change of custody would have; how long the parent waited before moving to reclaim the child; the strength of the child’s ties to the caregiver; and how stable the child’s future would be back in the parent’s custody.

Notice what that list rewards: continuity, stability, and a record. A caregiver who has quietly done the work for years — with school records, medical records, and a documented history — argues from a far stronger position than one who has only a story. And a painful truth: every month a child spends back with the parent before you act erodes your case.

Door Three: De Facto Parent Status

In 2016, in Conover v. Conover, Maryland recognized de facto parenthood, and it changed what is possible for non-parent caregivers. If you qualify, you are not a third party at all — you stand in court as a parent, and the unfitness and exceptional-circumstances thresholds do not apply to you.

Maryland uses a four-part test. You must prove that the legal parent consented to and fostered your parent-like relationship with the child; that you and the child lived in the same household; that you took significant responsibility for the child’s care, education, and support without expecting payment; and that you held that role long enough to establish a bonded, dependent relationship. Maryland’s high court refined the doctrine in E.N. v. T.R. in 2021, and the appellate court applied it to a stepparent in Kpetigo v. Kpetigo.

The first factor is where most claims fail. A grandparent who stepped in because a parent vanished, was incarcerated, or was incapacitated may have acted heroically and still not satisfy the consent element — because circumstances created the relationship, not the parent’s choice. Evaluate that honestly before building a case around it.

What Winning the Threshold Fight Actually Gets You

This part surprises people. Proving unfitness or exceptional circumstances does not hand you the child. It levels the playing field. The court then decides on the best interest of the child — the same standard it would use between two parents.

That standard is now written down. Effective October 1, 2025, House Bill 1191 added Sections 9-201 and 9-202 to the Family Law Article, listing 16 best-interest factors: stability and the child’s foreseeable health and welfare, the child’s relationships with parents, siblings and other important people, protection from conflict and violence, developmental and day-to-day needs, age, prior orders, and the child’s own preference when age-appropriate, among others. The law also requires the court to articulate its findings on the record or in a written opinion, factor by factor. For a non-parent that matters: the reasoning is no longer hidden, so a well-built record has somewhere to land.

There is a cost, too. In 2025, in McMorrow v. King, Maryland’s appellate court held that a de facto parent who asserts rights to custody or visitation may be ordered to pay child support. De facto status is not a one-way grant of rights. If you claim a parent’s standing, you may carry a parent’s financial obligation — not a reason to abandon the claim, but a reason to go in with open eyes.

The Mistakes That End These Cases Early

• Do not assume years of caregiving alone make you a de facto parent. Without the legal parent’s consent to the parent-like relationship, Conover fails on its first factor.
• Do not treat informal permission as a substitute for a court order. It is revocable, and it can be revoked in an afternoon.
• Do not let the child return to the parent informally while you decide. Nearly every exceptional-circumstances factor moves against you as time passes.
• Do not rely on guidance written before October 1, 2025. The best-interest framework is now statutory, and older summaries are incomplete.

What Actually Builds a Third-Party Case

• Settle your category first — de facto parent or third party — before anything is filed.
• If de facto status is available, lead with it. It removes the threshold fight entirely.
• If it is not, build deliberately to the Burak unfitness factors or the McDermott exceptional-circumstances factors — not to a general sense of unfairness.
• Gather the record now: school enrollment naming you, medical records, messages showing consent and absence, receipts proving support.

There is no comfortable way to say this. Third-party custody cases are among the hardest in Maryland family law, and the presumption favoring parents exists on purpose. Anyone who promises you a result cannot know it.

But hard is not hopeless, and it is not the same as unwinnable. Maryland leaves three real doors open, and which one fits your family depends on facts you may not yet realize are the most important ones you have. The law does account for the person who has actually been raising the child — just not automatically, and not without proof. That is not a form to fill out. It is a case to build, with someone who does this work every day.

Disclaimer: This article is for general educational purposes only. It is not legal advice and does not create an attorney-client relationship. Maryland law changes, and every case turns on its own facts. If you or someone you love needs honest guidance on divorce, child custody, child support, spousal support, or the division of marital property, speak with a Maryland family law attorney about your specific situation before making any decisions.

Talk to a Maryland Family Lawyer Contact The Guerami Law Firm, LLC through our contact page for a confidential consultation with Amir Guerami and his team.