Conover v. Conover , 450 Md. 51 ( 2016 )

Michelle L. Conover v. Brittany D. Conover, No. 79, September Term, 2015, Opinion by
Adkins, J.
FAMILY LAW — VISITATION AND CUSTODY — DE FACTO PARENT: De
facto parents have standing to contest custody or visitation and need not show parental
unfitness or exceptional circumstances before a trial court can apply a best interests of the
child analysis. The Court’s previous decision in Janice M. v. Margaret K., 404 Md. 661
(2008), is overruled.
Circuit Court for Washington County
Case No.: 21-C-13-046273 DA
Argued: April 5, 2016
IN THE COURT OF APPEALS
OF MARYLAND
No. 79
September Term, 2015
MICHELLE L. CONOVER
v.
BRITTANY D. CONOVER
Barbera, C.J.
*Battaglia
Greene
Adkins
McDonald
Watts
Raker, Irma S. (Retired,
Specially Assigned),
JJ.
Opinion by Adkins, J.
Battaglia, Greene and Watts, JJ., concur
Filed: July 7, 2016
* Battaglia, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to the Constitution, Article IV, Section
3A, she also participated in the decision and
adoption of the opinion.
Child custody and visitation decisions are among the most serious and complex
decisions a court must make, with grave implications for all parties. The dissolution of a
non-traditional marriage just compounds the difficulties of this already challenging
inquiry. This appeal arises out of a divorce between a lesbian couple, and involves a dispute
over one spouse’s right of access to a child conceived by artificial insemination and born
before the couple was married. Petitioner calls upon us to revisit the concept of de facto
parenthood and our previous decision in Janice M. v. Margaret K., 404 Md. 661 (2008).
FACTS AND LEGAL PROCEEDINGS
Michelle1 and Brittany Conover began a relationship in July 2002. The parties
discussed having a child and agreed that Brittany would be artificially inseminated from
an anonymous donor arranged through the Shady Grove Fertility Clinic. The child was
conceived in 2009. The couple gave birth to a son, Jaxon William Lee Eckel Conover
(“Jaxon”), in April 2010. The birth certificate listed Brittany as Jaxon’s mother, but no
one was identified as the father. The parties married in the District of Columbia in
September 2010 when Jaxon was about six months old.
In September 2011, Michelle and Brittany separated. From the date of separation
until July 2012, Michelle visited Jaxon and had overnight and weekend access. At some
point in July 2012, Brittany prevented Michelle from continuing to visit Jaxon. In February
1
In her brief, Michelle notes that she is now a “transgender man” and states that the
record does not reflect her gender identity because she transitioned to living as a man after
the contested divorce hearing occurred. She further explained that she would refer to
herself using female pronouns and her former name for consistency with the record and
that her gender identity is not material to any legal issue in this appeal. For consistency
with the record, we too shall refer to Michelle using female pronouns and her former name.
2013, Brittany filed a Complaint for Absolute Divorce, stating that there were no children
shared by the couple from the marriage. Michelle filed an Answer later that month in
which she requested visitation rights with respect to Jaxon. In March 2013, Michelle filed
a Counter-Complaint for Absolute Divorce, in which she repeated her request for visitation
rights. Michelle did not request custody.
In April 2013, the parties appeared at a hearing in the Circuit Court for Washington
County to determine Michelle’s standing to seek access to Jaxon. Brittany, appearing pro
se, argued that Michelle did not have parental standing because she was not listed on the
birth certificate as a parent of Jaxon, and that as a third party, she could not assert visitation
rights. Michelle asserted that she had standing because she met the paternity factors for a
“father” set forth in Md. Code (1974, 2011 Repl. Vol.), Estates & Trusts (“ET”), § 1-
208(b).2 At the hearing, Michelle’s counsel averred that there were “constitutional
2
Md. Code (1974, 2011 Repl. Vol.), Estates & Trusts Article (“ET”), § 1-208(b)
provides:
A child born to parents who have not participated in a marriage
ceremony with each other shall be considered to be the child of
his father only if the father:
(1) Has been judicially determined to be the father in an action
brought under the statutes relating to paternity proceedings;
(2) Has acknowledged himself, in writing, to be the father;
(3) Has openly and notoriously recognized the child to be his
child; or
(4) Has subsequently married the mother and has
acknowledged himself, orally or in writing, to be the father.
(Emphasis added.) ET § 1-208(a) states that “[a] child born to parents who have not
participated in a marriage ceremony with each other shall be considered to be the child of
his mother.”
2
reasons” that supported this interpretation, but provided no further explanation. The
Circuit Court requested supplemental memoranda. Michelle filed a legal memorandum in
which no constitutional contentions were made. Brittany did not submit a memorandum.
The Circuit Court then conducted an evidentiary hearing and took testimony from
Michelle and Brittany. The following pieces of evidence were elicited at the hearing:
 Michelle helped choose an anonymous sperm donor with
characteristics similar to her own;
 Brittany took on the more “female” role in the relationship,
while Michelle took on the more “masculine” role;
 Although Brittany later objected to the practice, Jaxon, at
times, called Michelle “Dada” or “Daddy”;
 Brittany sometimes referred to Michelle as Jaxon’s father;
 A document, dated July 16, 2010, written entirely in
Brittany’s handwriting was introduced. It stated that both
parties “verified” that they agreed to “joint custody” of
Jaxon with “[t]he exact terms of which to be determined at
a later date”;3
 Michelle testified that the parties considered initiating a
proceeding for Michelle to adopt Jaxon, but they could not
afford the cost.
At the conclusion of the evidentiary portion of the proceeding, Michelle’s counsel
contended that parental standing existed under ET § 1-208(b). She also argued that
Brittany was estopped to deny that Michelle was the child’s father. Finally, she stated:
3
Michelle testified that the purpose of the document was to facilitate decision-
making for Jaxon if Brittany were hospitalized. Brittany testified that she signed the
document under duress.
3
An alternative argument is that my client has standing
for custody based on extra . . . extraordinary circumstances.
And . . . and I’m not sure if you want me to go into that
argument or not. Ah, but for a custody proceeding, a Court can
consider custody to a third party or visitation to a third party if
the Court finds that there are extraordinary circumstances.
And I believe that this case screams extraordinary
circumstances.
In June 2013, the Circuit Court issued a written opinion concluding that Michelle
did not have standing to contest custody or visitation. First, the court found that Michelle
did not have parental standing. The court took note of the common law and statutory
presumption that a child born during a marriage is presumed to be the child of both spouses,
but concluded that the presumption was not applicable here as Jaxon was conceived and
born prior to Brittany and Michelle’s marriage. The court also found Michelle did not
establish parental standing under ET § 1-208(b) because she was not Jaxon’s “father.” The
court explained:
Although it is certainly a creative argument, the statute is
intended for children to claim parentage and rights to property
after a parent has deceased, not for the parent to claim the child
under it. Moreover, this Court finds that even under its
broadest interpretation, the statute’s application was intended
by the [L]egislature to be applied in instances of child support,
not to establish standing for visitation and custody of a child.
See Md. Code Ann., Fam. Law § 5-1005(a). [Michelle] argues
that although not a male, she has sufficiently satisfied three of
the four criteria under [ET] § 1-208(b) to qualify as the minor
child’s father. [Section] 1-208(b) specifically pertains to the
parentage of an illegitimate child claiming his or her “father[,]”
which [Michelle] in this case is not. During the hearing the
parties testified to the fact that [Michelle] is in fact a female,
had not adopted the child, and in no way was related to the
child, thus not sufficiently establishing that she could be the
“father” of the child.
4
Although the Circuit Court stated that Michelle was Jaxon’s de facto parent, it relied on
Janice M. v. Margaret K., 404 Md. 661 (2008) in concluding that de facto parent status
was not recognized in Maryland.
Next, the court found that Michelle did not have “third party” standing to contest
custody or visitation. Relying on Janice M., the court held that Michelle, as a “third party,”
had to show that Brittany was unfit or that exceptional circumstances existed to overcome
the biological mother’s constitutionally protected interest in the care and control of her
child. Based on the testimony at the hearing, the court found Brittany to be a fit parent and
that “[t]here [had] been no showing of exceptional circumstances.” The Circuit Court
denied Michelle’s request for custody or visitation based on lack of standing.
After the divorce was granted, Michelle timely appealed the Circuit Court’s order
on visitation to the Court of Special Appeals. The Court of Special Appeals affirmed in a
reported decision. Conover v. Conover, 224 Md. App. 366 (2015). First, the intermediate
appellate court considered it inappropriate to address the issue of whether ET § 1-208(b)
must be read to include women. Id. at 376. The court noted that whether the Fourteenth
Amendment of the United States Constitution or the Equal Rights Amendment of the
Maryland Declaration of Rights necessitate that the term “father” in ET § 1-208(b) be given
a gender-neutral construction was an issue that was neither raised nor decided below. Id.
Next, the court ruled that even if Michelle qualified as a “father” under ET § 1-208(b)
5
despite her being female, the statute did not establish parentage for purposes of child
custody and visitation:
A non-biological, non-adoptive spouse who meets one, two or
even three tests under ET § 1-208(b) is still a “third party” for
child access purposes. Under Janice M., he or she is not a
“legal parent” . . . . He or she must still show exceptional
circumstances to obtain access to a child over the objection of
a fit biological parent and to overcome the natural parent’s due
process rights.
Id. at 380.
We granted Michelle’s Petition for Writ of Certiorari presenting the following two
questions for review:
(1) Should Maryland reconsider Janice M. v. Margaret K. and
recognize the doctrine of de facto parenthood?
(2) Did the Court of Special Appeals err in holding that
Michelle is a “third party,” where Michelle is a legal parent
under ET § 1-208(b)?
We hold that de facto parenthood is a viable means to establish standing to contest custody
or visitation and thus answer yes to the first question. We shall reverse the judgment of
the Court of Special Appeals. Because we overturn Janice M. and recognize de facto parent
status, we need not address Michelle’s arguments regarding ET § 1-208 and thus do not
answer the second question.4
4
In her brief, Michelle notes that we must reach the issue of de facto parentage even
if the Court rules in her favor regarding the statutory parentage presumption under ET § 1-
208(b). She explains that should the Court rule in her favor on ET § 1-208(b), it will be
possible on remand for the Circuit Court to allow Brittany to rebut her presumptive
parentage. Michelle, however, does not argue that we must reach any of the issues
pertaining to ET § 1-208(b) should we rule in her favor on de facto parenthood.
6
STANDARD OF REVIEW
Brittany and Michelle agree that the facts in this case are not in dispute. Whether
we should reconsider Janice M. and recognize the doctrine of de facto parenthood is a legal
question, and so we review the Circuit Court’s decision without deference. Elderkin v.
Carroll, 403 Md. 343, 353 (2008) (“When the ruling of a trial court requires the
interpretation and application of Maryland case law, we give no deference to its
conclusions of law.”).
DISCUSSION
The primary goal of access determinations in Maryland is to serve the best interests
of the child. Taylor v. Taylor, 306 Md. 290, 303 (1986) (“We emphasize that in any child
custody case, the paramount concern is the best interest of the child . . . . The best interest
of the child is [] not considered as one of many factors, but as the objective to which
virtually all other factors speak.”); Ross v. Hoffman, 280 Md. 172, 174–75 (1977) (asserting
that the “best interest standard is firmly entrenched in Maryland and is deemed to be of
transcendent importance”). It is also well-established that the rights of parents to direct
and govern the care, custody, and control of their children is a fundamental right protected
by the Fourteenth Amendment of the United States Constitution. Meyer v. Nebraska, 262
U.S. 390, 399 (1923); see Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925).
Although there is some tension inherent amongst these two deep-rooted principles, we
7
recognized in McDermott v. Dougherty, 385 Md. 320, 353 (2005), that the rights of parents
to custody of their children are generally superior to those of anyone else:
Where the dispute is between a fit parent and a private third
party, however, both parties do not begin on equal footing in
respect to rights to “care, custody, and control” of the children.
The parent is asserting a fundamental constitutional right. The
third party is not.
We have thus held that a third party seeking custody or visitation must first show unfitness
of the natural parents or that extraordinary circumstances exist before a trial court could
apply the best interests of the child standard. McDermott, 385 Md. at 325; see Koshko v.
Haining, 398 Md. 404, 445 (2007) (ruling grandparent visitation statute unconstitutional
as-applied where no threshold finding was made regarding whether parents were unfit or
whether exceptional circumstances existed).
Janice M. v. Margaret K.
In Janice M., 404 Md. at 671, we considered whether Maryland recognized de facto
parenthood and if so, whether a de facto parent seeking custody or visitation had to show
parental unfitness or exceptional circumstances before a trial court could apply the best
interests of the child standard. In so holding, we overruled the Court of Special Appeals
decision treating de facto parental status as sufficient to confer standing to seek visitation
in S.F. v. M.D., 132 Md. App. 99 (2000). Janice M., 404 Md. at 683–85. That court held
that a de facto parent seeking visitation need not prove the unfitness of the biological
parents or exceptional circumstances as a prerequisite to a best interests of the child
analysis. 132 Md. App. at 111–12.
8
In revisiting this issue, we examine the basis for the intermediate appellate court’s
ruling in S.F. v. M.D., and this Court’s rationale in rejecting that ruling in Janice M. To
determine whether one is a de facto parent, the Court of Special Appeals adopted a four-
part test first articulated by the Wisconsin Supreme Court in In re Custody of H.S.H.-K.,
533 N.W.2d 419, 421 (Wisc. 1995):
In determining whether one is a de facto parent, we employ the
test enunciated in In re Custody of H.S.H.-K., 193 Wis. 2d 649,
533 N.W.2d 419 (1995), and V.C. v. M.J.B., 163 N.J. 200, 748
A.2d 539 (2000). Under that test, “the legal parent must
consent to and foster the relationship between the third party
and the child; the third party must have lived with the child; the
third party must perform parental functions for the child to a
significant degree; and most important, a parent-child bond
must be forged.” V.C., 163 N.J. at 223, 748 A.2d 539.
Id. at 111.5 Certiorari was not requested in S.F. v. M.D.
But what exactly is de facto parenthood? The Court in Janice M. explained that the
phrase “de facto parent” is “used generally to describe a party who claims custody or
visitation rights based upon the party’s relationship, in fact, with a non-biological, non-
adopted child.” 404 Md. 680–81.6 In that case, two women, Janice and Margaret, were
5
In a decision affirming visitation for a biological mother’s same-sex former
domestic partner, the New Jersey Supreme Court described the four-part test enunciated in
In re Custody of H.S.H.-K., 533 N.W.2d 419, 421 (Wisc. 1995) as “[t]he most thoughtful
and inclusive definition of de facto parenthood.” V.C. v. M.J.B., 748 A.2d 539, 551 (N.J.
2000).
6
The American Law Institute (“ALI”) defines a de facto parent as:
[A]n individual other than a legal parent or a parent by estoppel
who, for a significant period of time not less than two years,
(i) lived with the child and,
9
involved in a same-sex relationship for approximately 18 years, but were not married.7 Id.
at 665. After Janice’s attempts to become pregnant by use of in vitro fertilization failed,
Janice, but not Margaret, adopted a child. Id. A few years after the adoption, the couple
separated. Id. After they separated, Margaret filed a complaint in the Circuit Court for
Baltimore County seeking custody, or in the alternative, visitation. Id. at 666–67.
Relying on S.F. v. M.D., the Circuit Court concluded that Margaret was entitled to
visitation because she was a de facto parent and that a de facto parent is not required show
unfitness of the biological parent or exceptional circumstances. Id. at 668–69. The Court
of Special Appeals affirmed. See Janice M. v. Margaret K., 171 Md. App. 528 (2006).
Certiorari was granted, and this Court overruled the intermediate court’s eight-year-old
(ii) for reasons primarily other than financial
compensation, and with the agreement of a legal
parent to form a parent-child relationship, or as a
result of a complete failure or inability of any
legal parent to perform caretaking functions,
(A) regularly performed a majority
of the caretaking functions for the
child, or
(B) regularly performed a share of
caretaking functions at least as
great as that of the parent with
whom the child primarily lived.
American Law Institute, Principles of the Law of Family Dissolution: Analysis and
Recommendations § 2.03(1)(c) (2003) (adopted May 16, 2000).
Same-sex marriages were not authorized under Maryland law at that time. See
7
Conaway v. Deane, 401 Md. 219 (2007).
10
decision in S.F., holding de facto parent status was not a recognized legal status in
Maryland. Janice M., 404 Md. at 685. In rejecting the S.F. holding, the Court refused to
distinguish de facto parents from other third parties and asserted that de facto parents
seeking access rights must first show parental unfitness or exceptional circumstances
before a trial court can apply the best interests of the child standard:
We will not recognize de facto parent status, as set forth
in S.F., as a legal status in Maryland. We refuse to do so
because, even assuming arguendo that we were to recognize
such a status, short-circuiting the requirement to show
unfitness or exceptional circumstances is contrary to Maryland
jurisprudence, as articulated in McDermott and Koshko.
Even were we to recognize some form of de facto
parenthood, the real question in the case sub judice will remain,
whether, in a custody or visitation dispute, a third party, non-
biological, non-adoptive parent, who satisfies the test
necessary to show de facto parenthood should be treated
differently from other third parties. We have not been
persuaded that they should be. In other words, where visitation
or custody is sought over the objection of the parent, before the
best interest of the child test comes into play, the de facto
parent must establish that the legal parent is either unfit or that
exceptional circumstances exist. A fair reading of McDermott
and Koshko leads to no other conclusion.
Id. Accordingly, the Court found that the trial court erred in granting Margaret visitation
based on her status as the child’s de facto parent without first determining whether Janice
was unfit or whether exceptional circumstances existed to overcome Janice’s “liberty
interest in the care, custody, and control of her child.” Id. at 695. The Court then remanded
the case so that the trial court could determine whether exceptional circumstances existed.
Id. at 695–96. In doing so, we explained that “a finding that one meets the requirements
that would give that person de facto parent status, were that status to be recognized, is a
11
strong factor to be considered in assessing whether exceptional circumstances exist[,]” but
would not be “determinative as a matter of law.” Id. at 695.
The Court’s decision in Janice M. was not unanimous. In a dissenting opinion,
Judge Irma Raker asserted “that a de facto parent is different from ‘third parties’ and should
be treated as the equivalent of a legal parent, with the same rights and obligations.” Id. at
696 (Raker, J., dissenting). The dissent contended that it “would hold that a de facto parent
stands in legal parity with a legal parent, whether biological, adoptive, or otherwise, for the
purposes of visitation” and “would not apply the threshold determinations of parental
unfitness or exceptional circumstances.” Id. at 709.
Stare Decisis
Stare decisis is the bedrock of our legal system because “it promotes the
evenhanded, predictable, and consistent development of legal principles, fosters reliance
on judicial decisions, and contributes to the actual and perceived integrity of the judicial
process.” Livesay v. Balt. Cnty., 384 Md. 1, 14 (2004) (quoting Payne v. Tennessee, 501
U.S. 808, 827 (1991)). Stare decisis, however, must sometimes yield to another judicial
duty:
[The common law] may be changed by legislative act as Art. 5
of the Declaration of Rights expressly provides . . . . It may
also be changed by judicial decision . . . . ‘We have frequently
held that it is our duty to determine the common law as it exists
in this State . . . .’ The doctrine of stare decisis does not
preclude the exercise of this duty.
12
Boblitz v. Boblitz, 296 Md. 242, 274 (1983), modified by Bozman v. Bozman, 376 Md. 461
(2003).8 In the course of abrogating the doctrine of interspousal immunity in tort claims,
the Boblitz Court stated:
We are persuaded that the reasons asserted for its retention do
not survive careful scrutiny. They furnish no reasonable basis
for denial of recovery for tortious personal injury. We find no
subsisting public policy that justifies retention of a judicially
created immunity that would bar recovery for injured victims
in such cases as the present.
Id. at 273. We further explained in Boblitz:
‘[W]e have never construed [the doctrine of stare decisis ] to
inhibit us from changing or modifying a common law rule by
judicial decision where we find, in light of changed
conditions or increased knowledge that the rule has become
unsound in the circumstances of modern life, a vestige of
the past, no longer suitable to our people.’
Id. at 274 (quoting Harrison v. Montgomery Cnty., 295 Md. 442, 459 (1983)).9 We have
also considered Supreme Court analysis of stare decisis:
8
The Court in Boblitz v. Boblitz, 296 Md. 242 (1983), abolished spousal immunity
only for negligence actions. In Bozman v. Bozman, 376 Md. 461, 497 (2003), we
modified Boblitz by expanding the variety of torts for which one spouse could sue
another: “Joining the many of our sister States that have already done so, we abrogate the
interspousal immunity rule, a vestige of the past, whose time has come and gone, as to all
cases alleging an intentional tort.”
9
Unger v. State, 427 Md. 383, 417 (2012) identified various cases in which we
overruled our prior decisions:
This Court has not hesitated to overrule prior decisions which
are clearly wrong. See, e.g., Cure v. State, 421 Md. 300, 320–
322, 26 A.3d 899, 910–911 (2011) (The Court, in an opinion
by Judge Harrell, overruled a prior decision of this court
concerning waiver and adopted the position of the three
dissenters in that prior case); Harris v. Board of Education, 375
13
The Supreme Court has stated that ‘it is common wisdom that
the rule of stare decisis is not an ‘inexorable command,’ and
certainly it is not such in every constitutional case.’ Planned
Parenthood v. Casey, 505 U.S. 833, 854, 112 S. Ct. 2791, 2808,
120 L. Ed. 2d 674 (1992).
Stare decisis is the preferred course because it promotes the
evenhanded, predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial
process . . . . Nevertheless, when governing decisions are
unworkable or are badly reasoned, this Court has never
felt constrained to follow precedent. Stare decisis is not an
inexorable command; rather, it is a principle of policy and not
a mechanical formula of adherence to the latest decision.
[Citations omitted] [Internal quotation omitted.] Payne v.
Tennessee, 501 U.S. 808, 827-28, 111 S. Ct. 2597, 2609, 115
L. Ed. 2d 720 (1991).
Bozman, 376 Md. at 493–94 (quoting Perry v. State, 357 Md. 37, 96–100 (1999))
(emphasis added).
In short, we have recognized two circumstances for departing from stare decisis: (1)
when the prior decision is “clearly wrong and contrary to established principles” or (2)
when “the precedent has been superseded by significant changes in the law or facts.” DRD
Md. 21, 59, 825 A.2d 365, 388 (2003) (Overruling three prior
cases and their progeny on the ground that the overruled cases
had erroneously inserted in the Workers Compensation Act an
additional requirement not included by the Legislature); State
v. Kanaras, 357 Md. 170, 184, 742 A.2d 508, 516 (1999)
(Overrules five prior decisions which had misinterpreted the
Postconviction Procedure Act); Owens–Illinois v. Zenobia,
325 Md. 420, 470–471, 601 A.2d 633 (1992) (The Court
overruled several cases relating to punitive damages on the
ground that the “holdings were erroneous and were
inconsistent with [prior] Maryland . . . law”); Townsend v.
Beth.–Fair. Shipyard, 186 Md. 406, 417, 47 A.2d 365, 370
(1946).
14
Pool Serv., Inc. v. Freed, 416 Md. 46, 64 (2010) (citations and internal quotation marks
omitted).10 As explained below, we depart from Janice M. on both grounds.
Grounds for Decision in Janice M.
The Janice M. Court relied heavily on McDermott and Koshko to support its
rejection of de facto parenthood and determination that persons meeting this status must
nonetheless show parental unfitness or exceptional circumstances before a trial court can
apply the best interests of the child standard. See Janice M., 404 Md. at 685–86 (“Clearly,
in light of McDermott and Koshko, S.F. no longer reflects Maryland law, and accordingly,
is overruled.”).
As Judge Raker pointed out in her dissenting opinion, McDermott and Koshko “dealt
with the rights of pure third parties, and not those of de facto parents.” Id. at 705–06
(Raker, J. dissenting). In McDermott, which involved maternal grandparents seeking
custody in litigation against the child’s father, the Court distinguished “pure third parties”
from those persons who are in a parental role. 385 Md. at 356. Specifically, the court
differentiated “pure third parties” from psychological parents. Id.11 The Court defined the
10
This ground is also described as “when the precedent has been rendered archaic
and inapplicable to modern society through the passage of time and evolving events.” State
v. Stachowski, 440 Md. 504, 520 (2014) (internal citations omitted).
11
Although the Court used the term “physiological parents,” it is clear that this was
a typographical error. McDermott v. Dougherty, 385 Md. 320, 356 (2005) (“Some states
have conceptualized the idea of physiological parents, third parties who have, in effect,
become parents and thus, the case is considered according to the standards that apply
between natural parents.”) (emphasis added). In the very same paragraph, the Court used
the phrase “psychological parent.” Id. (“In that situation there are no constitutional rights
involved (although in some cases constitutional claims are made using terms such as
‘psychological parent’ and the like) and the ‘best interest’ standard is generally applied.”)
15
phrase “psychological parents” as “third parties who have, in effect, become parents.” Id.
The term “psychological parent” is closely related to the “de facto parent” label in that
these designations are used to describe persons who have assumed a parental role.12
The Court then made clear that McDermott was a “pure third-party case” before it
proceeded to analyze other pure third-party cases. 385 Md. at 356–57 (“[I]n comparison
with the total number of cases in which attempts are made to utilize the ‘best interest’
standard . . . the number of pure third-party cases, such as the present case, is relatively
(emphasis added). In addition, in its later discussion of other jurisdictions, the McDermott
Court also used the phrase “psychological parents.” Finally, a Westlaw search for
“physiological parents,” “physiological parent,” and “physiological parenthood” yielded
no cases other than McDermott.
12
Compare Janice M. v. Margaret K., 404 Md. 661, 681 n.8 (2008) (“The term
‘psychological parent’ is based primarily in social science theory, and refers to a party who
has a ‘parent-like’ relationship with a child as a result of ‘day-to-day interaction,
companionship, and shared experiences.’”) (quoting Joseph Goldstein, Anna Freud &
Albert J. Solnit, Beyond the Best Interests of the Child 19 (1973)), with id. at 680 (stating
that “‘parent in fact’” is the “literal meaning” of de facto parent). These terms are so similar
that courts often use them interchangeably. See, e.g., V.C., 748 A.2d at 546 n.3 (noting
that “[t]he terms psychological parent, de facto parent, and functional parent” would be
“used interchangeably in this opinion to reflect their [similar] use in the various cases,
statutes, and articles cited”); see generally In re Parentage of L.B., 122 P.3d 161, 167 n.7
(Wash. 2005) (explaining the meaning of “the related yet distinct terms of in loco parentis,
psychological parent, and de facto parent”). As one commentator put it, the psychological
parent and de facto parent “doctrines are often used interchangeably, and the nuances
between them vary by jurisdiction, but the same basic principles underlie their application.”
Lindsy J. Rohlf, Note, The Psychological-Parent and De Facto-Parent Doctrines: How
Should the Uniform Parentage Act Define “Parent”?, 94 Iowa L. Rev. 691, 700 (2009)
(describing the differences between the two doctrines as “superficial”). Indeed, the Court
in Janice M. acknowledged the similarity of these terms. 404 Md. at 681 n.8 (“While these
designations [de facto parent, in loco parentis and psychological parent] are related, they
are not always, or necessarily, identical in meaning.”).
16
small. It is on these remaining cases throughout the country, that we primarily focus our
attention.”) (emphasis added).13
Likewise, Koshko involved grandparents seeking visitation, who did not claim to be
de facto parents. The Court in Koshko simply extended our holding in McDermott—that
parental unfitness and exceptional circumstances are threshold considerations in third party
custody determinations—to visitation disputes. 398 Md. at 443 (“Now that we
conclusively have stated in McDermott that parental unfitness and exceptional
circumstances shall be threshold considerations in third party custody determinations, it is
appropriate that we now also apply those considerations in third party visitation disputes.”);
see Janice M., 404 Md. at 680 (“McDermott made clear that parental unfitness and
exceptional circumstances are threshold considerations in third party custody
determinations; Koshko made clear that those considerations apply in third party visitation
disputes.”). But neither McDermott nor Koshko justified this Court’s decision in Janice
M. What the Court failed to identify was any rationale for eliminating consideration of the
parent-like relationship that the plaintiff sought to protect. It seemingly ignored the bond
that the child develops with a de facto parent.
Troxel v. Granville
The Janice M. Court relied in part on the United States Supreme Court’s decision
in Troxel v. Granville, 530 U.S. 57 (2000), indicating that it also undermined the
13
The Court also examined cases in which a state was involved in the custody
process, but did not consider these to be “pure third-party” cases. See McDermott, 385
Md. at 365 (citing Connecticut Supreme Court decision and observing it was “not a pure
third-party case in that the state was the petitioning party”).
17
intermediate appellate court’s decision in S.F. See 404 Md. at 672–74, 683 (“[T]he Court
of Special Appeals has considered the concept, as well as the status, of a de facto parent in
the context of visitation rights in the case of S.F. . . . . It did so, however, prior to the
Supreme Court’s decision in Troxel, and our decisions in McDermott and Koshko.”). In
Troxel, the U.S. Supreme Court addressed an appeal from a petition to obtain visitation
rights filed by the grandparents of two minor children pursuant to a Washington State
visitation statute. The Washington statute provided that “[a]ny person may petition the
court for visitation rights at any time, including, but not limited to, custody proceedings.
The court may order visitation rights for any person when visitation may serve the best
interest of the child whether or not there has been any change of circumstances.” Troxel,
530 U.S. at 61 (citing Wash. Rev. Code § 26.10.160(3) (1994)). In a fractured opinion, a
four-justice plurality held the Washington statute unconstitutional as applied to the facts of
the case. Id. at 73. The high court determined that the state trial court’s visitation order in
favor of the grandparents was an unconstitutional infringement on the parent’s
“fundamental right to make decisions concerning the care, custody, and control” of her
children under the Fourteenth Amendment’s Due Process Clause. Id. at 72.
Troxel was an extremely narrow decision. See Hernandez v. Hernandez, 265 P.3d
495, 498 (Idaho 2011) (describing Troxel’s import as “limited” and “stand[ing] for the
narrow proposition that Wash. Rev. Code § 26.10.160(3) (1994) is constitutionally infirm
as applied in that case”); see also Jeff H. Pham, Comment, Does Mother Still Know Best?:
In Re Marriage of Harris and Its Impact on the Rights of Custodial Parents, 38 Loy. L.A.
18
L. Rev. 1871, 1878 (2005) (characterizing Troxel as a “deliberately narrow opinion”).14
The Court’s holding hinged “on the sweeping breadth” of the Washington statute and “the
application of that broad, unlimited power.” Troxel, 530 U.S. at 73.15 Writing on behalf
of the plurality, Justice O’Connor expressly declined to address whether substantive due
process requires a showing of harm before non-parental visitation is ordered and asserted
that “[w]e do not, and need not, define today the precise scope of the parental due process
right in the visitation context.” Id. Additionally, it bears mention that the Supreme Court
did not strike down the Washington statute as unconstitutional on its face, but only as
applied. The Court further maintained that it “would be hesitant to hold that specific
nonparental visitation statutes violate the Due Process Clause as a per se matter.” Id.
(stating that “the constitutionality of any standard for awarding visitation turns on the
specific manner in which that standard is applied”).
As many courts immediately recognized, Troxel did not denote the end of third party
visitation. See, e.g., Jackson v. Tangreen, 18 P.3d 100, 103–04 (Ariz. Ct. App. 2000)
(holding Arizona grandparent visitation statute constitutional and concluding that Troxel
“has no impact” on the state statute); Rideout v. Riendeau, 761 A.2d 291, 303 (Me. 2000)
(ruling Maine’s Grandparents Visitation Act, as applied, did not violate the Due Process
14
Even the Koshko Court acknowledged the narrowness of Troxel v. Granville, 530
U.S. 57 (2000). See Koshko v. Haining, 398 Md. 404, 443 (2007) (“We are aware that the
plurality opinion in Troxel does not compel our holding in this regard in the present case.”).
15
See Jeff Atkinson, Shifts in the Law Regarding the Rights of Third Parties to Seek
Visitation and Custody of Children, 47 Fam. L.Q. 1, 4 (2013) (“The Washington state
statute under which visitation had been granted in Troxel was one of the broadest in the
country.”).
19
Clause of the Fourteenth Amendment); Hertz v. Hertz, 738 N.Y.S.2d 62, 64–65 (N.Y. App.
Div. 2002) (reversing trial court’s judgment that New York’s grandparent visitation statute
was unconstitutional and asserting that “Troxel does not mandate a finding that
[grandparent visitation statute] is unconstitutional per se”).
Indeed, several state courts of last resort have expressly held that Troxel does not
prevent the recognition of de facto parent status. For example, in In re Parentage of L.B.,
the Washington Supreme Court adopted the concept of de facto parentage and rejected a
biological mother’s contention that granting a putative de facto parent standing to seek
custody of a minor child would infringe on the biological mother’s fundamental parental
interests under Troxel. 122 P.3d 161, 178–79 (Wash. 2005) (“Finding no constitutional
infirmities in recognizing de facto parents”). Similarly, in upholding the constitutionality
of a state statute permitting a de facto parent to seek custody, the Delaware Supreme Court
explained:
Troxel does not control these facts. The issue here is
not whether the Family Court has infringed Smith’s
fundamental parental right to control who has access to ANS
[the minor child] by awarding Guest co-equal parental status.
Rather, the issue is whether Guest is a legal “parent” of ANS
who would also have parental rights to ANS—rights that are
co-equal to Smith’s. This is not a case, like Troxel, where a
third party having no claim to a parent-child relationship (e.g.,
the child’s grandparents) seeks visitation rights. Guest is not
“any third party.” Rather, she is a [] de facto parent
who . . . would also be a legal “parent” of ANS. Because
Guest, as a legal parent, would have a co-equal “fundamental
parental interest” in raising ANS, allowing Guest to pursue that
interest through a legally-recognized channel cannot
unconstitutionally infringe Smith’s due process rights. In
short, Smith’s due process claim fails for lack of a valid
premise.
20
Smith v. Guest, 16 A.3d 920, 931 (Del. 2011) (involving lesbian couple and dispute over
access to Smith’s adopted child) (emphasis added) (footnotes omitted).16
In her Janice M. dissent, Judge Raker rightly emphasized that courts “have
continued to recognize the de facto parenthood concept post-Troxel.” 404 Md. at 701–03
(Raker, J., dissenting). Put simply, numerous courts have declined to treat Troxel as a bar
to recognizing de facto parenthood or other designations used to describe third parties who
have assumed a parental role. See, e.g., Bethany v. Jones, 378 S.W.3d 731, 737 (Ark. 2011)
(“We reiterate that the focus should be on what, if any, bond has formed between the child
and the nonparent.”); Marquez v. Caudill, 656 S.E.2d 737, 743 (S.C. 2008) (“Because
Stepfather is [child’s] psychological parent and is, in fact, the only father he has ever
known, we find the family court appropriately determined that it was in [child’s] best
interest for Stepfather to have custody of him”); In re Guardianship of Victoria R., 201
P.3d 169, 177 (N.M. Ct. App. 2008) (“[W]e hold that a showing that the [] petitioners have
assumed the role of the psychological parents of the child who is the subject of the []
proceeding to the extent that the child will suffer a ‘significant degree of depression’ if the
relationship with the psychological parents is abruptly terminated is sufficient to rebut the
presumption that the biological parent is acting in the child’s best interests”); Mason v.
16
In SooHoo v. Johnson, 731 N.W.2d 815 (Minn. 2007), the Minnesota Supreme
Court upheld a provision of the state’s third party visitation statute granting de facto parents
visitation. In finding the provision not unconstitutional, the court noted that the
fundamental right of parents to the care, custody, and control of their children is not
absolute and cited the United States Supreme Court’s recognition “that states may intrude
on parental rights in order to protect the ‘general interest in the youth’s well being.’” 731
N.W.2d at 822 (citing Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).
21
Dwinnell, 660 S.E.2d 60, 65, 70 (N.C. Ct. App. 2008) (concluding that former domestic
partner of natural parent had standing to bring an action for custody of child where couple
“entered into an agreement in which they each acknowledged that [former partner] was a
de facto parent and had ‘formed a psychological parenting relationship with the parties’
child’”); In re Clifford K., 619 S.E.2d 138, 144, 159 (W. Va. 2005) (holding that surviving
lesbian partner had standing as a “psychological parent” to seek custody of child she had
helped raise with her late partner); C.E.W. v. D.E.W., 845 A.2d 1146, 1150-51 (Me. 2004)
(reaffirming that courts may “entertain an award of parental rights and responsibilities to a
de facto parent”); In re E.L.M.C., 100 P.3d 546, 554 (Colo. App. 2004) (former partner of
lesbian mother was a “psychological parent” with standing to seek custody); T.B. v. L.R.M.,
786 A.2d 913, 917–19 (Pa. 2001) (lesbian former partner of a child’s biological mother
could seek partial custody and visitation based on her standing in loco parentis to the child);
Rubano v. DiCenzo, 759 A.2d 959, 975 (R.I. 2000) (“[A] person who has no biological
connection to a child but who has served as a psychological or de facto parent to that child
may . . . establish his or her entitlement to parental rights vis-a-vis the child”).
Indeed, no case has interpreted Troxel as inconsistent with parental status for non-
biological parents except Maryland. Treatment by these other courts helps to demonstrate
the error made by the Janice M. Court in reasoning that Troxel undermined S.F. and the
recognition of de facto parenthood.
The Wisconsin Rule—In re Custody of H.S.H.-K.
Before Janice M., the intermediate appellate court’s recognition of de facto status
in S.F. was consistent with McDermott, Koshko, and Troxel because the test it used to
22
determine de facto parenthood was narrowly tailored to avoid infringing upon the parental
autonomy of a legal parent. The Court of Special Appeals borrowed a four-factor test
enunciated by the Wisconsin Supreme Court in its seminal decision in H.S.H.-K., 533
N.W.2d at 421.17 Under this test, a third-party seeking de facto parent status bears the
burden of proving the following when petitioning for access to a minor child:
(1) that the biological or adoptive parent consented to, and
fostered, the petitioner’s formation and establishment of a
parent-like relationship with the child;
(2) that the petitioner and the child lived together in the same
household;
(3) that the petitioner assumed obligations of parenthood by
taking significant responsibility for the child’s care,
education and development, including contributing towards
the child’s support, without expectation of financial
compensation; and
(4) that the petitioner has been in a parental role for a length of
time sufficient to have established with the child a bonded,
dependent relationship parental in nature.
H.S.H.-K., 533 N.W.2d at 435–36. As other courts adopting this test have recognized,
these factors set forth a high bar for establishing de facto parent status, which cannot be
achieved without knowing participation by the biological parent. See, e.g., V.C., 748 A.2d
at 551–53 (“Prong one is critical because it makes the biological or adoptive parent a
participant in the creation of the psychological parent’s relationship with the child.”);
17
The Wisconsin Supreme Court in In re Custody of H.S.H.-K., 533 N.W.2d 419,
421 (Wisc. 1995), “was one of the first states to adopt equity principles to protect a
functional parent-child relationship.” Danaya C. Wright, Inheritance Equity: Reforming
the Inheritance Penalties Facing Children in Nontraditional Families, 25 Cornell J.L. &
Pub. Pol’y 1, 15 (2015).
23
Rubano, 759 A.2d at 974 (“[These] criteria preclude such potential third-party parents as
mere neighbors, caretakers, baby sitters, nannies, au pairs, nonparental relatives, and family
friends from satisfying these standards.”); E.L.M.C., 100 P.3d at 560 (“These four factors
ensure that a nonparent’s eligibility for psychological parent treatment with respect to an
unrelated child will be strictly limited.”). Under this strict test, a concern that recognition
of de facto parenthood would interfere with the relationship between legal parents and their
children is largely eliminated. We thus adopt the multi-part test first articulated by the
Wisconsin Supreme Court in H.S.H.-K.18
The de facto parent doctrine does not contravene the principle that legal parents
have a fundamental right to direct and govern the care, custody, and control of their
children because a legal parent does not have a right to voluntarily cultivate their child’s
parental-type relationship with a third party and then seek to extinguish it. As the South
Carolina Supreme Court explained in Marquez, 656 S.E.2d at 744:
[T]he first factor [in the H.S.H.-K. test] is critical because it
makes the biological or adoptive parent a participant in the
creation of the psychological parent’s relationship with the
child. This factor recognizes that when a legal parent invites a
third party into a child’s life, and that invitation alters a child’s
life by essentially providing him with another parent, the legal
parent’s rights to unilaterally sever that relationship are
necessarily reduced.
18
In deciding whether to award visitation or custody to a de facto parent, the equity
court should also take into account whether there are other persons who have already been
judicially recognized as de facto parents. A court should be very cautious and avoid having
a child or family to be overburdened or fractured by multiple persons seeking access.
24
See also T.B., 786 A.2d at 919 (“The Superior Court aptly noted, under similar
circumstances, that a biological parent’s rights ‘do not extend to erasing a relationship
between her partner and her child which she voluntarily created and actively fostered
simply because after the parties’ separation she regretted having done so.’”). The H.S.H.-
K. standard for determining de facto parenthood is therefore consistent with the Supreme
Court’s reaffirmation in Troxel, 530 U.S. at 66, of “the fundamental right of parents to
make decisions concerning the care, custody, and control of their children,” as well as with
McDermott and Koshko. It is also consistent with an earlier, most pertinent decision by
this Court—Monroe v. Monroe, 329 Md. 758 (1993).
Monroe v. Monroe
In Monroe a putative father sought custody of a child as a third party before learning
from blood tests that he was not the biological father of the child. 329 Md. at 760–63. In
discussing whether exceptional circumstances existed to rebut the presumption that the
child’s best interests were served by remaining with her biological mother, we concluded
that “[w]hat is important, rather, is the relationship that exists between the child and each
of the parties.” Id. at 775. We further asserted that protection of a child’s relationship with
a non-biological parent is justified “when the relationship is developed in the context of a
family unit and is fostered, facilitated and, for most of the child’s life, encouraged by the
biological parent.” Id.; cf. Marquez, 656 S.E.2d at 744 (“[T]he first factor [in the H.S.H.-
K. test] is critical because it makes the biological or adoptive parent a participant in the
creation of the psychological parent’s relationship with the child.”).
25
Although the Court in Monroe was evaluating whether exceptional circumstances
existed, the reasoning of Monroe is equally apposite to de facto parenthood. In the words
of the Monroe Court:
Whether the child has established a relationship with a third
party sufficient to constitute exceptional circumstances,
rebutting the presumption of custody in the biological parent,
is not dependent on its development during the absence of the
biological parent. A relationship resulting in bonding and
psychological dependence upon a person without biological
connection can develop during an ongoing biological
parent/child relationship. Particularly is this true when the
relationship is developed in the context of a family unit and is
fostered, facilitated and, for most of the child’s life,
encouraged by the biological parent.
Monroe, 329 Md. at 775.
Our previous recognition of the importance—for legal purposes—of a
psychological bond between a child and non-parent confirms the notion that de facto
parenthood is distinct from pure third party status. Id.; see also McDermott, 385 Md. at
356 (distinguishing “pure third parties” from “psychological parents”). The Monroe
Court’s emphasis on bonding and psychological dependence reflects the longstanding
judicial recognition in Maryland (and elsewhere) that children need good relationships with
parental figures and they need them to be stable. The Janice M. Court’s rejection of de
facto parent as a status sufficient for standing in child access cases contravenes this
universally accepted concept. For these reasons, the first ground for overruling Janice M.
is satisfied—the precedent was “clearly wrong and contrary to established principles.”
DRD Pool Serv., 416 Md. at 64.
26
Janice M. Has Been Undermined By Subsequent Events
The anemic grounds for the Janice M. decision are not the only reason we recognize
the doctrine of de facto parenthood. Additionally, the passage of time and evolving events
have rendered Janice M. obsolete—the second circumstance recognized in DRD Pool Serv.
and other cases. Maryland’s recognition of same-sex marriage in 2012—Civil Marriage
Protection Act, Ch. 2, 2012 Md. Laws 9—undermines the precedential value of Janice M.
Our state’s recognition of same-sex marriage illustrates the greater acceptance of gays and
lesbians in the family unit in society. See also Melina Constantine Bell, Gender
Essentialism and American Law: Why and How to Sever the Connection, 23 Duke J.
Gender L. & Pol’y 163, 200 (2016) (“[G]ay men and lesbians, and same-sex couples are
gaining greater acceptance in the U.S.”); Elizabeth S. Scott & Robert E. Scott, From
Contract to Status: Collaboration and the Evolution of Novel Family Relationships, 115
Colum. L. Rev. 293, 374 (2015) (reviewing the “dramatic change in public attitudes . . .
for same-sex couples who wish to marry”).
But gays and lesbians are particularly “ill-served by rigid definitions of
parenthood.” Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining
Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional
Families, 78 Geo. L.J. 459, 464 (1990).19 As Polikoff explained, when gay or lesbian
19
See also Patricia M. Logue, The Rights of Lesbian and Gay Parents and Their
Children, 18 J. Am. Acad. Matrimonial Law. 95, 115 (2002) (“Many lesbian and gay
people are having and parenting children with a partner. If the relationship ends by death
or separation, the parent-child relationships of nonbiological de facto parents may be cast
into legal limbo.”).
27
relationships end, at least one member “will find itself in a court system ill-prepared to
recognize its existence and to formulate rules to resolve its disputes. . . . [t]he contestants
stand as a parent and a nonparent, a legal status inconsistent with their functional status.”
See id. at 463. Thus, the General Assembly’s according greater rights to same-sex couples
when it recognized same-sex marriage in 2012 further undermines the value of adhering to
Janice M., a precedent which can be considered “archaic” because it fails to effectively
address problems typical of divorce by same-sex married couples. See State v. Waine, 444
Md. 692, 700 (2015) (“We may decline to follow the doctrine when persuaded the prior
decision is clearly wrong, or when the precedent has been rendered archaic and
inapplicable to modern society through the passage of time and evolving events.”) (citation
and internal quotation marks omitted). The same problems exist even when an unmarried
same-sex couple separates.20
In addition, a majority of states, either by judicial decision or statute, now recognize
de facto parent status or a similar concept. See Nancy D. Polikoff, From Third Parties to
Parents: The Case of Lesbian Couples and Their Children, 77 Law & Contemp. Probs.
195, 208 (2014) (“A minority of states . . . have denied a functional psychological parent
without legal status the ability to request custody or visitation rights.”); see also Katharine
T. Bartlett, Prioritizing Past Caretaking in Child-Custody Decisionmaking, 77 Law &
Contemp. Probs. 29, 66 (2014) (observing that most jurisdictions that “have directly
20
Of course, persons ending a heterosexual marriage or other relationship may also
achieve standing if they meet the criteria set forth in H.S.H.-K., 533 N.W.2d at 421, which
we have adopted herein.
28
confronted the matter recognize de facto parenthood in certain limited circumstances” and
counting Maryland among the few jurisdictions that “appear to remain committed to
doctrines denying custodial responsibilities altogether to third parties who have engaged in
day-to-day, residential caretaking in a parenting capacity”).
Indeed, the Washington Supreme Court identified a “modern common law trend of
recognizing the status of de facto parents” as early as 2005. Parentage of L.B., 122 P.3d
at 176 n.24. A diverse array of jurisdictions, from Alaska to West Virginia, constitute this
majority. See, e.g., Kinnard v. Kinnard, 43 P.3d 150, 151, 153–55 (Alaska 2002)
(affirming shared-custody award to father and stepmother, who was the child’s
psychological parent); E.N.O. v. L.M.M., 711 N.E.2d 886, 888, 891-93 (Mass. 1999)
(adopting de facto parenthood and affirming judgment granting temporary visitation to
lesbian former partner of biological mother); Parentage of L.B., 122 P.3d at 177
(“[H]enceforth in Washington, a de facto parent stands in legal parity with an otherwise
legal parent, whether biological, adoptive, or otherwise.”); C.E.W., 845 A.2d at 1149 (“We
have recognized de facto parental rights or similar concepts in addressing rights of third
persons who have played an unusual and significant parent-like role in a child’s life . . . .”);
T.B., 786 A.2d at 917, 920 (rejecting biological mother’s argument that “the well-
established doctrine of in loco parentis should be abandoned” and concluding that “the
lower courts properly found that [lesbian former partner] stood in loco parentis to [child]
and therefore had standing to seek partial custody for purposes of visitation”); Boseman v.
Jarrell, 704 S.E.2d 494, 504–05 (N.C. 2010) (affirming that non-biological parent could
be granted custody rights “because [biological mother] acted inconsistently with her
29
paramount parental status”); Rubano, 759 A.2d at 976 (“[T]he fact that [biological mother]
not only gave birth to this child but also nurtured him from infancy does not mean that she
can arbitrarily terminate [lesbian former partner’s] de facto parental relationship with the
boy, a relationship that [biological mother] agreed to and fostered for many years.”); V.C.,
748 A.2d at 550 (concluding former lesbian partner of biological mother had standing to
seek joint custody and visitation); Marquez, 656 S.E.2d at 745 (stepfather was the
psychological parent of his non-biological child and it was in child’s best interest for
stepfather to have custody of him); E.L.M.C., 100 P.3d at 553–54 (former partner of lesbian
mother was a “psychological parent” with standing to seek custody; “inherent in the bond
between child and psychological parent is the risk of emotional harm to the child should
that relationship be significantly curtailed or terminated”); Latham v. Schwerdtfeger, 802
N.W.2d 66, 75 (Neb. 2011) (“The district court erred when it concluded that the doctrine
of in loco parentis did not apply to this case. The undisputed facts show that [lesbian
former partner] has rights which are entitled to consideration and has standing based on the
doctrine of in loco parentis.”); In re Jonathan G., 482 S.E.2d 893, 913 (W. Va. 1996)
(“[W]e hold that a child has a right to continued association with individuals with whom
he has formed a close emotional bond, including foster parents, provided that a
determination is made that such continued contact is in the best interests of the child.”);
Bethany, 378 S.W.3d at 738 (“Having determined that Jones [biological mother’s former
same-sex partner] stood in loco parentis, the question then becomes whether it is in [the
child’s] best interest for Jones to have visitation rights, as that is the polestar
30
consideration.”). In some states, legislation was enacted authorizing standing for a de facto
parent to sue for either custody or visitation.21
Additionally, family law scholarship and the academic literature have also endorsed
the notion that a functional relationship—as well as biology or legal status—can be used
to define parenthood.
The American Law Institute (“ALI”) has recommended expanding the definition of
parenthood to include de facto parents and includes a de facto parent as one of the parties
with standing to bring an action for the determination of custody, subject to the best
interests of the child analysis. ALI, Principles of the Law of Family Dissolution: Analysis
and Recommendations §§ 2.03, 2.04 (2003) (adopted May 16, 2000).22 Additionally, many
21
See D.C. Code § 16-831.03(a) (West, Westlaw through May 11, 2016) (“A de
facto parent may file a complaint for custody of a child or a motion to intervene in any
existing action involving custody of the child.”); Del. Code Ann. tit. 13, § 8-201(c) (West,
Westlaw through 80 Laws 2016) (“De facto parent status is established if the Family Court
determines that the de facto parent . . . .”); Or. Rev. Stat. Ann. § 109.119 (West, Westlaw
through 2016 Reg. Sess.) (“Except as otherwise provided in subsection (9) of this section,
any person, including but not limited to a related or nonrelated foster parent, stepparent,
grandparent or relative by blood or marriage, who has established emotional ties creating
a child-parent relationship or an ongoing personal relationship with a child may petition or
file a motion for intervention with the court having jurisdiction over the custody, placement
or guardianship of that child . . . .”); Tex. Fam. Code Ann. § 102.003(a)(9) (West, Westlaw
through 2015 Reg. Sess.) (“An original suit may be filed at any time by a person, other
than a foster parent, who has had actual care, control, and possession of the child for at
least six months ending not more than 90 days preceding the date of the filing of the
petition.”).
22
Pamela Laufer-Ukeles, Money, Caregiving, and Kinship: Should Paid Caregivers
Be Allowed to Obtain De Facto Parental Status?, 74 Mo. L. Rev. 25, 29 (2009) (“In the
last two decades, a trend has developed in state law and in scholarly commentary toward
increasing openness to awarding parenting rights to third parties who have been functional
caregivers to children, precipitating the adoption of de facto parenthood and parenthood by
estoppel status in the ALI Principles.”).
31
commentators have espoused the concept of de facto parenthood in examining the
inadequacies of recognizing only legal parenthood. Emily R. Lipps, Note, Janice M. v.
Margaret K.: Eliminating Same-Sex Parents’ Rights to Raise Their Children by
Eliminating the De Facto Parent Doctrine, 68 Md. L. Rev. 691 (2009) (criticizing Janice
M. and arguing that Court should have recognized de facto parent status); Sacha M. Coupet,
“Ain’t I a Parent?”: The Exclusion of Kinship Caregivers from the Debate over
Expansions of Parenthood, 34 N.Y.U. Rev. L. & Soc. Change 595, 653 (2010) (“[D]e facto
parental status holds tremendous promise as an avenue for kinship caregivers seeking
parental recognition.”); Dorothy R. Fait, Jillian L. DiLaura & Michelle M. Botek, Who Is
A Parent?, 42 Md. B.J. 4, 10 (2009) (“The natural parent should not be permitted to use
the ‘fundamental right to parent’ as a shield once the ‘de facto parent’ relationship is no
longer convenient. In certain cases, the best interests of the child can only be protected
through the legal acceptance of the de facto parent . . . .”).
In short, Janice M. now deviates sharply from the decisional and statutory law of
other jurisdictions. The weight of authority outside Maryland reinforces our decision to
overturn Janice M. and recognize de facto parenthood.
Maryland Statutory Law
Importantly, Maryland statutory law is silent when it comes to de facto parenthood.
At oral argument, Brittany maintained that we should not overrule Janice M. because de
facto parent status should be left to the General Assembly. We disagree. The General
Assembly has granted equity courts jurisdiction over the “custody or guardianship of a
child.” Md. Code (1984, 2012 Repl. Vol.), Family Law (“FL”) Article §1-201(b)(5). As
32
part of their broad power to fashion appropriate relief, equity courts have “plenary authority
to determine questions concerning the welfare of children.” Stancill v. Stancill, 286 Md.
530, 534 (1979). “In other words, a court of chancery stands as a guardian of all children
and may interfere at any time and in any way to protect and advance their welfare and
interests.” Ross v. Hoffman, 280 Md. 172, 176 (1977).
Other jurisdictions in recognizing de facto status have also cast aside the contention
that recognition of such status should be left to the legislative branch where the relevant
statutes were silent on de facto parenthood. In Parentage of L.B., 122 P.3d at 176, the
Washington Supreme Court wrote:
Our state’s current statutory scheme reflects the unsurprising
fact that statutes often fail to contemplate all potential
scenarios which may arise in the ever changing and evolving
notion of familial relations. Yet, simply because a statute fails
to speak to a specific situation should not, and does not in our
common law system, operate to preclude the availability of
potential redress. This is especially true when the rights and
interests of those least able to speak for themselves are
concerned. We cannot read the legislature’s pronouncements
on this subject to preclude any potential redress to [minor
child] or [putative de facto parent]. In fact, to do so would be
antagonistic to the clear legislative intent that permeates this
field of law—to effectuate the best interests of the child in
the face of differing notions of family and to provide certain
and needed economical and psychological support and
nurturing to the children of our state.
Id. (emphasis added). This reasoning is in accord with other state high courts that have
recognized de facto parenthood. See, e.g., H.S.H.-K., 533 N.W.2d at 424–25 (“Nor did the
legislature intend the [] visitation statute to supplant or preempt the courts’ long standing
equitable power to protect the best interest of a child by ordering visitation in circumstances
33
not included in the statute. . . . [t]he legislature did not intend to [] ‘occupy the field’ of
visitation.”); E.N.O., 711 N.E.2d at 890 (“The court’s duty as parens patriae necessitates
that its equitable powers extend to protecting the best interests of children in actions before
the court, even if the Legislature has not determined what the best interests require in a
particular situation.”).
Although several state courts have refused to adopt de facto parent status on the
grounds that such decisions should be left to the legislature,23 we find this reasoning inapt
because Maryland’s statutory scheme in the area of family law is not as comprehensive as
such states. Indeed, Maryland statutory law on child custody and visitation illustrates that
“statutes often fail to contemplate all potential scenarios which may arise in the ever
changing and evolving notion of familial relations.” Parentage of L.B., 122 P.3d at 176.
Maryland does not have statutory factors for courts to consider in determining
whether a party’s access to a child is in that child’s best interests. See FL §§ 9-101–9-108;
see also Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law 2011–
2012: “DOMA” Challenges Hit Federal Courts and Abduction Cases Increase, 46 Fam.
L.Q. 471, 524–27 (2013) (indicating that Maryland is only one of eleven states not to have
23
See, e.g., Smith v. Gordon, 968 A.2d 1 (Del. 2009); Jones v. Barlow, 154 P.3d
808 (Utah 2007); Moreau v. Sylvester, 95 A.3d 416 (Vt. 2014). For instance, before
Delaware’s General Assembly recognized de facto parenthood by statute, Del. Code Ann.
tit. 13, § 8-201(c), the Delaware Supreme Court refused to adopt de facto parent status
because the state legislature “enact[ed] a comprehensive statutory scheme that reflect[ed]
a public policy unambiguously to define the parent-child relationship as a legal
relationship.” Smith v. Gordon, 968 A.2d at 15.
34
statutory factors).24 Rather than looking to codified rules, the factors courts consider in
making a “best interests determination” are found in case law. Taylor v. Taylor, 306 Md.
290, 303–312 (1986). This judicially determined law has been in place for many years,
without legislation overruling it. See Montgomery Cnty. v. Robinson, 435 Md. 62, 78
(2013) (“It is a settled principle of Maryland law that the General Assembly is presumed
to be aware of legislation it has enacted as well as the interpretation the courts have given
that legislation.”) (internal citations omitted). Thus, we discern no evidence that
Maryland’s General Assembly intended to preempt common law jurisprudence over the
“ever changing and evolving notion of familial relations” in child custody proceedings.
For these reasons, we reject Brittany’s contention that an equity court’s ability to
consider de facto parent status in fashioning relief pertaining to the custody or guardianship
of a child lies solely within the province of the General Assembly.25
Conclusion
We overrule Janice M. because it is “clearly wrong” and has been undermined by
the passage of time. In light of our differentiation in McDermott, 385 Md. at 356, between
“pure third parties” and those persons who are in a parental role, we now make explicit that
24
It should be noted that the General Assembly has provided some legislative
direction in custody proceedings. Under Md. Code (1984, 2012 Repl. Vol.), Fam. Law
Article § 9-101, a court must determine if it has “reasonable grounds to believe” that a
child has been abused or neglected by a party seeking custody and if so, the court must
make a finding that there is no further likelihood of abuse or neglect if unsupervised
custody or access is to be awarded to that person.
25
The General Assembly has the power, of course, to enact a differing standard than
the one we now restore.
35
de facto parents are distinct from other third parties. We hold that de facto parents have
standing to contest custody or visitation and need not show parental unfitness or
exceptional circumstances before a trial court can apply a best interests of the child
analysis. The best interests of the child standard has been “firmly entrenched in Maryland
and is deemed to be of transcendent importance.” Ross, 280 Md. at 174–75. With this
holding we fortify the best interests standard by allowing judicial consideration of the
benefits a child gains when there is consistency in the child’s close, nurturing relationships.
We do so carefully, adopting the multi-part test first articulated by the Wisconsin
Supreme Court in H.S.H.-K. This test accommodates, we think, the dissonance between
what is in the best interest of a child and a parent’s right to direct and govern the care,
custody, and control of their children.
We reverse the Court of Special Appeals, and direct that court to remand this case
to the Circuit Court for determination of whether, applying the H.S.H.-K. standards,
Michelle should be considered a de facto parent, and conduct further proceedings
consistent with this opinion.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED.
CASE REMANDED TO THAT
COURT WITH INSTRUCTIONS TO
REMAND THE CASE TO THE
CIRCUIT COURT FOR FURTHER
PROCEEDINGS CONSISTENT
WITH THIS OPINION. COSTS TO
BE PAID BY RESPONDENT.
36
Circuit Court for Washington County
Case No. 21-C-13-046273
Argued: April 5, 2016
IN THE COURT OF APPEALS
OF MARYLAND
No. 79
September Term, 2015
______________________________________
MICHELLE L. CONOVER
v.
BRITTANY D. CONOVER
______________________________________
Barbera, C.J.
*Battaglia
Greene
Adkins
McDonald
Watts
Raker, Irma S. (Retired, Specially
Assigned)
JJ.
______________________________________
Concurring Opinion by Greene, J.
______________________________________
Filed: July 7, 2016
*Battaglia, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to the Constitution, Article IV, Section
3A, she also participated in the decision and
adoption of the opinion.
I agree with the Majority’s conclusion that de facto parent status should be
recognized in Maryland. In that regard, we are correct to recognize that this status exists,
and to overrule Janice M. v. Margaret K., 404 Md. 661, 948 A.2d 73 (2008). In addition,
I agree with the test enunciated in In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wisc.
1995) and V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000). Likewise, I agree with the Majority’s
decision in this case to adopt and apply this test in order to establish de facto parentage. I
disagree, however, that a person who qualifies as a de facto parent is not required, per se,
to establish exceptional circumstances. Consistent with our case law, the burden was on
Michelle Conover to demonstrate exceptional circumstances to justify the need for a best
interest analysis. See Ross v. Hoffman, 280 Md. 172, 178–79, 372 A.2d 582, 587 (1977).
I agree that de facto parentage is a relevant factor but it is not the only factor for the court
to consider in reaching the ultimate decision to grant child access.
In my view, de facto parent status can best be described as a subset of exceptional
circumstances. The fact that another person has a psychological bond with the child, a
bond that was fostered by the legal parent, is but one relevant factor that would warrant a
finding of an exceptional circumstance, and could overcome the presumption in favor of
the legal or adoptive parent to control access to the child.
Other probative factors would include:
[(a)] the length of time the child has been away from [either] the biological
[and or adoptive] parent, [(b)] the age of the child when care was assumed
by the [de facto or biological parent], [(c)] the possible emotional effect on
the child [resulting from] a change of custody [or visitation], [(d)] [any]
period of time which elapsed before the [de facto or legal] parent sought to
reclaim [access to] the child, [(e)] the nature and strength of the ties between
the child and the [de facto parent], [(f)] the intensity and genuineness of the
[respective] parent’s desire to have the child [for the purposes of visitation
or custody], [(g)] the stability and certainty as to the child’s future in the
custody of [or having access to] the [de facto] parent.
See Ross, 280 Md. at 191, 372 A.2d at 593.
The existence of a de facto parent status, the fact that a child has a close emotional
bond with the de facto parent and that it would be in the best interest of the child to maintain
that bond, are questions for the trial judge to resolve. Thus, the trial court would decide
ultimately the existence of exceptional circumstances and whether the de facto parent’s
access to a child is in that child’s best interest. See Taylor v. Taylor, 306 Md. 290, 307–
11, 508 A.2d 964, 972–74 (1986). In its determination of the best interest of the child, the
trial judge would be in the best position to consider all of the relevant factors.
For the above reasons, I concur in the judgment of the Court.
-2-
Circuit Court for Washington County
Case No. 21-C-13-046273
Argued: April 5, 2016
IN THE COURT OF APPEALS
OF MARYLAND
No. 79
September Term, 2015
______________________________________
MICHELLE L. CONOVER
v.
BRITTANY D. CONOVER
______________________________________
Barbera, C.J.
*Battaglia
Greene
Adkins
McDonald
Watts
Raker, Irma S. (Retired, Specially
Assigned)
JJ.
______________________________________
Concurring Opinion by Watts, J., which
Battaglia, J., joins
______________________________________
Filed: July 7, 2016
*Battaglia, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to the Constitution, Article IV, Section
3A, she also participated in the decision and
adoption of this opinion.
Respectfully, I concur. Although I agree with the Majority in the recognition of de
facto parenthood in Maryland, in my view, the Majority, in adopting the four-factor test set
forth by the Supreme Court of Wisconsin in In re Custody of H.S.H-K., 533 N.W.2d 419
(Wisc. 1995), see Maj. Slip Op. at 22-24, 36, adopts a standard that is too broad and that
could have a negative impact on children in Maryland.
By adopting the four-factor test set forth in H.S.H.-K., 533 N.W.2d at 435, the
Majority holds that, under the first factor, when seeking de facto parent status, the third
party must show “that the biological or adoptive parent consented to, and fostered, the
[third party]’s formation and establishment of a parent-like relationship with the child[.]”
In other words, the Majority holds that only one parent is needed to consent to and foster a
parent-like relationship with the would-be de facto parent. This will work in cases such as
this one, where a second biological or adoptive parent does not exist, i.e., where there is
only one existing parent. Where there are two existing parents, however, permitting a
single parent to consent to and foster a de facto parent relationship could result in a second
existing parent having no knowledge that a de facto parent, i.e., a third parent, is created.
Such situations may result in a child having three parents vying for custody and visitation,
and being overburdened by the demands of multiple parents. Today, many children are
not living in a classic nuclear family. Families include not only same-sex married
parents—in which one parent had a child before marriage—but also separated or divorced
parents who conceived children during a marriage, as well as two parents who have never
married. The Majority has written broadly a solution for de facto parents that will serve
couples well under circumstances similar to the parties in this case, where there is only one
biological or adoptive parent. The majority opinion, however, will have greater
consequences in cases for children with two existing parents because a de facto parent
request may occur without the knowledge or consent of the second existing parent.
Children who already have difficulty with visitation schedules, or experience custody
issues pertaining to two parents, will not be served well by the creation of a test that does
not account for the second existing parent’s knowledge and consent.
Oddly, the Majority expresses concern that multiple de facto parentships not be
created and that trial courts should be cautious about overburdening families with multiple
people seeking access in that regard. See Maj. Slip Op. at 24 n.18. Ironically, however,
the Majority expresses no concern about the creation of a single de facto parentship where
there are already two existing parents, and where one parent may create a de facto
parentship absent the other existing parent’s notice of, and consent to, the de facto
parentship of a third party.
Imagining the untenable situation of a child who is parented by two adults one of
whom, without the knowledge or consent of the second already existing parent, creates a
de facto parentship, I cannot agree with simply adopting the four-factor test without
additional limits and safeguards. Even creating a standby guardianship in Maryland has
traditionally required the consent of both parents. Indeed, under Md. Code Ann., Est. &
Trusts (1974, 2011 Repl. Vol.) § 13-903(a), concerning judicial appointment of a standby
guardianship, provides, in relevant part:
(1) Subject to the provisions of paragraph (2) and (3) of this subsection, a
petition for the judicial appointment of a standby guardian of the person or
property of a minor under this section may be filed only by a parent of the
-2-
minor, and if filed, shall be joined by each person having parental rights
over the minor.
(2) If a person who has parental rights cannot be located after reasonable
efforts have been made to locate the person, the parent may file a petition for
the judicial appointment of a standby guardian.
(3) If the petitioner submits documentation, satisfactory to the court, of the
reasonable efforts to locate the person who has parental rights, the court may
issue a decree under this section.
(Emphasis added). By contrast, here, the Majority creates the irreconcilable result that one
parent in Maryland may not consent to a standby guardianship, absent documentation that
the parent made reasonable efforts to locate and obtain the consent of the other parent, but
that one parent may consent to and foster a de facto (third) parent for a child without any
sort of notice to, or consent from, a second existing parent. In my view, this is not a
desirable result.
Further, during the 2010 and 2015 legislative sessions, the General Assembly failed
to pass de facto parent bills which were similarly or more narrowly constructed than the
holding of the majority opinion. In 2010, two bills—Senate Bill 600 and House Bill
1241—were introduced “for the purpose of requiring a court to determine that an individual
is a de facto parent under certain circumstances; establishing that an individual who is
judicially determined to a be a de facto parent has the duties and obligations of a parent;
and generally relating to de facto parents.” S.B. 600, 2010 Regular Session, General
Assembly of Maryland, http://mgaleg.maryland.gov/2010rs/bills/sb/sb0600f.pdf
(capitalization omitted); H.B. 1241, 2010 Regular Session, General Assembly of
Maryland, http://mgaleg.maryland.gov/2010rs/bills/hb/hb1241f.pdf (capitalization
-3-
omitted). At that time, the proposed bills would have added a new section to the Family
Law Article, providing, in pertinent part, that a court shall determine that an individual is
a de facto parent if the individual requests a judicial determination of de facto parentage
and if the court finds by clear and convincing evidence that the following circumstances
exist:
(I) each parent of the minor child consented to, supported, and fostered
the establishment of a parent-like relationship between the minor child
and the individual;
(II) the individual has exercised parent-like responsibility for the minor child;
and
(III) the individual has acted in a parent-like role for a length of time
sufficient to have established a bonded and dependent relationship with the
minor child that is parental in nature.
S.B. 600, 2010 Regular Session, General Assembly of Maryland,
http://mgaleg.maryland.gov/2010rs/bills/sb/sb0600f.pdf (capitalization omitted)
(emphasis added); H.B. 1241, 2010 Regular Session, General Assembly of Maryland,
http://mgaleg.maryland.gov/2010rs/bills/hb/hb1241f.pdf (capitalization omitted)
(emphasis added). Ultimately, Senate Bill 600 received a hearing in the Senate Judicial
Proceedings Committee, but no further action was taken, and House Bill 1241 received a
hearing in the House Judiciary Committee, but was subsequently withdrawn following an
unfavorable report. See Fiscal and Policy Note, S.B. 402, 2015 Regular Session, General
Assembly of Maryland, available at http://mgaleg.maryland.gov/2015RS/fnotes/bil_0002/
sb0402.pdf.
Five years later, in 2015, two bills—Senate Bill 402 and House Bill 577—were
-4-
introduced
FOR the purpose of authorizing a court, on request of certain parties in
certain judicial proceedings, to determine whether an individual is a de facto
parent of a child; authorizing an individual who asserts that the individual is
a de facto parent to initiate or intervene in certain judicial proceedings by
filing a certain pleading; establishing a certain burden of proof and standard
of proof; requiring that a judicial determination on de facto parent status be
in writing; establishing that an individual who is judicially determined to be
a de facto parent has the duties, rights, and obligations of a parent unless the
court makes a certain determination; requiring that certain disputes regarding
the allocation of child custody and visitation be removed on the basis of the
best interest of the child; defining a certain term; and generally relating to de
facto parents.
S.B. 402, 2015 Regular Session, General Assembly of Maryland,
http://mgaleg.maryland.gov/2015RS/bills/sb/sb0402f.pdf; H.B. 577, 2015 Regular
Session, General Assembly of Maryland,
http://mgaleg.maryland.gov/2015RS/bills/hb/hb0577f.pdf. The proposed bills would have
added a new section to the Family Law Article, providing, in pertinent part, that a de facto
parent
means an individual, including a current or former spouse of a parent of a
child, who:
(1) over a substantial period of time has:
(I) been treated as a parent by the child;
(II) formed a meaningful parental relationship with the child; and
(III) lived with the child;
(2) has undertaken full and permanent responsibilities as a parent of the child;
and
(3) has held the individual out as a parent of the child with the agreement
of a parent of the child, which may be expressed or implied from the
-5-
circumstances and conduct of the parties.
S.B. 402, 2015 Regular Session, General Assembly of Maryland,
http://mgaleg.maryland.gov/2015RS/bills/sb/sb0402f.pdf (capitalization omitted)
(emphasis added); H.B. 577, 2015 Regular Session, General Assembly of Maryland,
http://mgaleg.maryland.gov/2015RS/bills/hb/hb0577f.pdf (capitalization omitted)
(emphasis added). Notably, Senate Bill 402 and House Bill 577 altered the definition of de
facto parent previously proposed in 2010 by setting forth different criteria, including that
the individual must have lived with the child over a substantial period of time and by
eliminating the requirement that both parents of a child must consent to and foster the de
facto parent relationship. Additionally, the proposed bills altered the burden of proof
necessary for a court to determine whether an individual is a de facto parent to a
preponderance of the evidence from clear and convincing evidence as previously proposed
in 2010. Ultimately, Senate Bill 402 received a hearing in the Senate Judicial Proceedings
Committee, but received an unfavorable report, see S.B. 402, 2015 Regular Session,
General Assembly of Maryland, Senate Judicial Proceedings Committee Voting Record,
http://mgaleg.maryland.gov/2015RS/votes_comm/sb0402_jpr.pdf, and House Bill 577
received a hearing in the House Judiciary Committee, but was subsequently withdrawn
following an unfavorable report, see H.B. 577, 2015 Regular Session, General Assembly
of Maryland, House Judiciary Committee Voting Record,
http://mgaleg.maryland.gov/2015RS/votes_comm/hb0577_jud.pdf.
The proposed bills from 2010 and 2015 demonstrate that there are a number of
details that necessarily must accompany any decision to recognize de facto parenthood in
-6-
Maryland—from what burden of proof an individual bears to how an action for de facto
parentship should be pled and what criteria an individual must satisfy to be declared a de
facto parent. In my view, the majority opinion is broader than, and without the constraints
of, the withdrawn bills. For example, the majority opinion includes no information on the
burden of proof in a de facto parent case, the manner of petitioning to become a de facto
parent, how a trial court should deliver an opinion in a de facto parent case, or, most
importantly, a very basic limit that would protect children who already have two existing
parents from the creation of a third parent in the absence of both existing parents’
knowledge and consent to that de facto parent relationship.
To fill the obvious void left by the majority opinion, I would offer the following
guidance. In every instance in which a trial court is confronted with a request for de facto
parentship, the trial court should ascertain whether there are one or two existing biological
or adoptive parents. In the case of two existing parents, the trial court should require that
the second parent have notice of the de facto parent request and ascertain whether the
second parent consents to the de facto parent relationship. In satisfaction of the first prong
of the H.S.H.-K. test, an action for de facto parenthood may be initiated only by an existing
parent or a would-be de facto parent by the filing of a verified complaint attesting to the
consent of the establishment of de facto parent status. The trial court should find by clear
and convincing evidence that the parent has established:
(1) that the biological or adoptive parent consented to, and fostered, the
petitioner’s formation and establishment of a parent-like relationship
with the child, and in the event of two existing biological or adoptive
-7-
parents, that both parents consented to the establishment of a de facto
parentship;1
(2) that the petitioner and the child lived together in the same household;
(3) that the petitioner assumed obligations of parenthood by taking
significant responsibility for the child’s care, education and
development, including contributing towards the child’s support,
without expectation of financial compensation; and
(4) that the petitioner has been in a parental role for a length of time
sufficient to have established with the child a bonded, dependent
relationship parental in nature.
See H.S.H.-K., 533 N.W.2d at 435-36. The trial court should be required to issue a written
opinion explaining the reasons for granting or denying the request.
To be sure, the majority opinion is appropriate for the parties in this case and
provides Petitioner deserved relief, but, in simply adopting the four-factor test from H.S.H.-
K., with no additional safeguards or limitations, the Majority has drafted an opinion that
fails to provide important safeguards as to how de facto parentships are to be created and
fails to serve all litigants, including those similarly situated to the parties in this case as
well as others who do not live in a classic nuclear family. In addition to lacking important
procedural safeguards, the majority opinion does citizens, and particularly the children, of
Maryland a disservice by not including additional protections to ensure that children and
1
Under the circumstance where a second existing parent may not be able to be
located, the trial court should utilize the same procedure as used in the stand-by
guardianship statute and require that the existing parent or would-be de facto parent could
proceed with seeking a declaration of de facto parentship only after satisfactory
documentation is produced to the trial court demonstrating that “reasonable efforts have
been made to locate” the second existing parent. Est. & Trusts § 13-903(a).
-8-
families are not overburdened by the custody and visitation demands of multiple parents,
and by not including the limitation that, in circumstances where there are two existing
parents, both parents need to have notice of, and the opportunity to consent to, the de facto
parentship of a third party.2
For the above reasons, respectfully, I concur.
Judge Battaglia has authorized me to state that she joins in this opinion.
2
Where there is a lack of consent on the part of the second existing parent to the
creation of a de facto parentship, the parent who wants to foster the de facto parentship or
the would-be de facto parent is not precluded from facilitating that party’s access to the
child by establishing exceptional circumstances for the trial court’s consideration of the
best interests of the child. See, e.g., Koshko v. Haining, 398 Md. 404, 444-45, 921 A.2d
171, 195 (2007) (“[T]here must be a finding of either parental unfitness or exceptional
circumstances demonstrating the current or future detriment to the child, absent visitation
from his or her grandparents, as a prerequisite to application of the best interests analysis.”).
-9-