By Frederick L. Kobb and Mollie G. Shuman
Most custody contests pit one parent against the other. In those cases, one parent is not presumed to be more fit than the other and the custody decision is based on the oft-heard “best interest of the child” standard. Occasionally, someone seeks custody of a child who is not his own. These are commonly referred to as “third party” custody cases; the third party being a non-parent. In such cases, it is presumed to be in a child’s best interest for the biological parent to have custody. In order for a non-parent (third party) to overcome — or rebut — this presumption he must prove either (1) that the biological parent is unfit or (2) there are exceptional circumstances which would be detrimental to the child’s remaining with the biological parent. If the third party succeeds in rebutting the presumption, then the custody decision is based on the same best interest of the child analysis that is applied in the standard custody case. Thus, a third party faces a heavy burden in trying to gain custody over a parent. However, a recent case decided by Maryland’s Court of Special Appeals, Karen P. v. Christopher J. B., 163 Md. App. 250 (2005), demonstrates one scenario in which a third party waged a strong challenge for custody of a child who was not his own.
Karen and Christopher lived together in Maryland for 12 years, but never married. Four years after they began their relationship, Karen and Christopher had a child, Sebastian. Karen and Christopher briefly separated when Sebastian was three years old. Karen had another child, Claudia, after Karen and Christopher reunited. While pregnant with Claudia, Karen had a sonogram that gave the date of conception during the time when Karen and Christian were separated. She then realized that another man with whom she was intimate while she and Christopher were separated was Claudia’s biological father. Christopher did not know that Karen had been sexually active during their separation. During the pregnancy Karen acted as if Christopher was Claudia’s father and did not tell Christopher otherwise. Thus, Christopher assumed he was Claudia’s biological father. Shortly after Claudia’s birth, Karen identified Christopher as Claudia’s father on an affidavit of parentage, as well as on Claudia’s birth certificate.
After Claudia was born, Karen, Christopher, Sebastian and Claudia lived together as a family. During that time, Christopher had an active role in rearing Claudia and Sebastian, and Christopher and Claudia bonded as father and child. Karen and Christopher separated again and Karen filed a case seeking custody of Sebastian and Claudia. Karen alleged in the court papers that Christopher was the children’s father. In response, Christopher filed for custody of Sebastian and Claudia.
While the custody case was pending in court, Karen moved herself, Sebastian, then eight years old, and Claudia, then five years old, to New Jersey. She did not disclose their location to Christopher. Karen had no family or job prospects in New Jersey. She selected her new home because it was in a safe community with good schools. Karen eventually allowed Christopher to communicate with the children by telephone, but she closely monitored their conversations in order to protect the identity of her location. On one occasion, after getting mail from Karen with a postmark that bore the name of the town where she was living, Christopher drove to New Jersey and located Karen’s home. No one was home when he arrived and he returned to Maryland without seeing the children.
While the custody case was pending, at Karen’s request, the court ordered a paternity test regarding Claudia. The results, which were not disclosed to the children, excluded Christopher as the father. Karen refused to reveal the identity of Claudia’s biological father. At the trial, it was established that Sebastian and Claudia were doing well in Karen’s care and the court found that Karen was a fit parent. However, the court also found that there were exceptional circumstances that rebutted the presumption that Karen, Claudia’s biological parent, should have custody of Claudia.
The court identified several factors which helped rebut the presumption: (1) Claudia and Christopher had bonded in a father/daughter relationship; (2) Karen was willing to use her authority as biological parent to disrupt that relationship — regardless of the consequences to Claudia; (3) Karen challenged Claudia’s paternity solely to gain an advantage in the custody case; (4) Karen abruptly moved away from Maryland and made it impossible for Christopher to have a normal relationship with the children; and (5) by refusing to identify Claudia’s biological father Karen revealed that she would rather have Claudia rendered fatherless than permit Christopher and Claudia to continue a father/daughter relationship.
The court then went on to award custody of Sebastian and Claudia to Christopher. Importantly, the court recognized that granting custody to Karen would make it likely that Claudia would lose the only father she had known. On the other hand, granting custody to Christopher would make it likely that Claudia would continue to have a mother and a father figure in her life.
Perhaps, what parents and non-parents alike can learn from the decision in Karen P. v. Christopher J. B. is, as stated in the decision, “that a child can develop a strong relationship of parental bonding and psychological dependence with a third party at the same time that the child is in an ongoing parent/child relationship with his biological parent.” Where such “parental bonding” and “psychological dependence” has developed between a child and a third party, the custody arena will give the third party an equal chance in a custody dispute with the child’s parent. In that case, the best interest of the child will guide which person is awarded custody. Similar issues are also germane to visitation issues involving third parties.