Grandparent & Third-Party Custody / Access

Grandparent, Third-Party, De Facto Parent, and Person’s with Legitimate Interests Custody / Access

In Maryland and Virginia, custody disputes involving non-parents are governed by a careful balance between protecting a child’s best interests and respecting a biological or legal parent’s fundamental constitutional rights. As a general rule, the law presumes that a fit parent has the superior right to custody of their child. A third party—such as a grandparent, former partner, or other caregiver—must overcome this presumption before a court will even consider awarding custody or visitation.

Maryland acknowledges the concept of a de facto parent, whereas Virginia does not. As such, there is a significant difference between the law, procedures, and difficulty associated with non-biological and non-adoptive parent custody.

Protecting the Rights of Grandparents, Relatives, and Other De facto Parents

When a child’s parents are unable or unwilling to provide proper care, grandparents or other relatives often step in to offer love, stability, and support. In these situations, Maryland law allows certain non-parents to seek custody or visitation — but the process can be complex. At The Burton Firm, we help families navigate the laws surrounding Maryland De facto parent & third-party custody and access with compassion, skill, and a deep understanding of what’s at stake.

De facto parent: A legal status developed by Maryland appellate courts for individuals who, although not biological or adoptive parents, have functioned as a parent in every meaningful way. To qualify, a third party must prove that the legal parent consented to and fostered the parental relationship, that the third party lived with the child, assumed full parental responsibilities, and formed a bonded, parent-like relationship with the child. When de facto parent status is established, the court treats the case as a custody dispute between two parents, applying a straight best interests of the child analysis rather than requiring proof of parental unfitness or exceptional harm.

Extraordinary circumstances/ non-de facto parent: This is a much higher burden. The court must first find that circumstances exist which would make continued custody with the parent detrimental to the child—such as abandonment, prolonged separation, serious neglect, or other conditions demonstrating potential harm. Only after extraordinary circumstances are proven will the court weigh the child’s best interests. This threshold requirement reflects the strong legal protections afforded to parental rights and makes third-party custody cases highly fact-specific and legally complex.

Third-party custody cases in Maryland often involve emotionally charged relationships, unconventional family structures, and evolving definitions of parenthood. Whether pursuing de facto parent recognition or attempting to establish extraordinary circumstances, success depends on a careful legal strategy and a deep understanding of Maryland custody law. These cases are rarely straightforward, and early legal guidance can be critical in determining whether a third party has a viable path forward—or how a parent can protect their custodial rights.

Virginia Third-Party Custody “Persons with a legitimate interest”

In Virginia, third-party custody is permitted only in narrow and carefully defined circumstances, reflecting the Commonwealth’s strong protection of parental rights. Unlike some jurisdictions, Virginia does not recognize de facto parent status. Instead, non-parents—including grandparents, stepparents, extended family members, and other caregivers—may seek custody only as “persons with a legitimate interest” under Virginia Code § 20-124.1. This designation allows access to the court, but it does not place the third party on equal footing with a parent.

To prevail, a non-parent must overcome a powerful presumption favoring parental custody by proving, by clear and convincing evidence, one of five specific circumstances: (1) parental unfitness; (2) a prior court order divesting the parent of custody; (3) voluntary relinquishment of custody by the parent; (4) abandonment; or (5) special facts and circumstances constituting extraordinary reasons to remove the child from the parent. Only if one of these thresholds is met will the court proceed to consider the child’s best interests. This framework, established in Bailes v. Sours, makes third-party custody cases in Virginia particularly challenging and fact-intensive.

We represent grandparents, aunts, uncles, stepparents, and other caregivers throughout Northern Virginia and Southern Maryland, including Fairfax County, Prince George’s County, Montgomery County, Anne Arundel County, Howard County, Charles County, Calvert and the Metro D.C. area who are seeking to protect the children they love and ensure their safety and well-being.

Speak with a Maryland and Virginia Family Law Attorney Today

If you’re a grandparent, relative, or caregiver seeking custody or visitation rights, The Burton Firm is here to help. Our team will guide you through each step of the process and fight to protect your relationship with the child. Call (301) 420-5540 or contact us online to schedule a confidential consultation. You can also request a consultation directly through our website.