Matthew W. Pitts v. Amanda M. Moore , 90 A.3d 1169 ( 2014 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 59
Docket: Yor-12-440
Argued: May 15, 2013
Decided: April 17, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR,
JJ.
Plurality: SAUFLEY, C.J., and MEAD, and GORMAN, JJ.
Concurrence: SILVER and JABAR, JJ.
Dissent: ALEXANDER and LEVY, JJ.
MATTHEW W. PITTS
v.
AMANDA M. MOORE
GORMAN, J.
[¶1] Amanda M. Moore appeals from a judgment entered in the District
Court (Springvale, Darvin, J.) finding that Matthew W. Pitts is her child’s de facto
parent and its award of contact on that basis. We take this opportunity to provide
guidance to parties and courts grappling with claims by persons asking to be
identified as de facto parents, and vacate the judgment and remand the matter to
the District Court for further proceedings.
I. BACKGROUND
[¶2] Pitts and Moore dated and lived together on an “on again, off again”
basis for more than eight years. While separated from Pitts in 2008, Moore dated
Eric B. Hague for a few months. Soon after, Pitts and Moore resumed their
2
relationship, and Moore learned that she was pregnant. The child was born in
November of 2009. By mid-2011, Pitts’s and Moore’s relationship had ended.
[¶3] The present litigation began in July of 2011, when Pitts filed a
complaint in the District Court against Moore seeking parental rights and
responsibilities concerning the child. In her response, Moore asserted that Pitts
was not the child’s biological father, and, after paternity testing was completed,
Pitts stipulated to that fact. On the parties’ stipulation, the matter thus proceeded
as one of asserted de facto parenthood.1
[¶4] After a testimonial hearing, the court made the following findings of
fact, all of which are supported by substantial evidence in the record. Although
Moore and Pitts were unsure of the child’s paternity, they decided to identify Pitts
as the father. During Moore’s pregnancy, Pitts attended some prenatal
appointments and a birthing class, and was present at the hospital for the child’s
birth. Moore and Pitts agreed to name Pitts as the father on the child’s birth
certificate, and to give the child Pitts’s last name.
[¶5] Pitts, Moore, and the child lived together from November of 2009 until
November of 2010, with a one-month separation in June of 2010. From the child’s
1
This matter was consolidated with a protection from abuse matter between Moore and Pitts, which
Moore later dismissed. It was also consolidated with Moore’s action for parental rights against Hague,
the child’s biological father; a separate judgment was issued in that matter. Neither of these two other
actions is before us.
3
birth, Moore was the child’s primary caretaker. Pitts was the sole source of
financial support for the household for the first seven months of the child’s life;
from then on, Moore also worked, but Pitts remained the primary wage earner.
The court found that Pitts’s “involvement with the child was more focused on
playtime, with occasional feeding and less occasional bathing and changing of
[diapers].” Pitts believed that because he was the primary wage earner, Moore was
primarily responsible for caring for the child, but Pitts did take care of the child
when Moore was not home.
[¶6] After Pitts and Moore separated, Pitts and Pitts’s family had regular
contact with the child, including multiple visits each week and an occasional
overnight visit. In April of 2011, Pitts and Moore attempted to reconcile, and Pitts
again spent significant time with the child in the family household. In May,
however, the parties had an argument after which Moore filed a protection from
abuse complaint against Pitts; Pitts was prohibited from seeing the child during the
month following the filing. After that, Pitts had “mostly consistent” contact with
the child consisting of supervised contact for five hours each Sunday pursuant to
an interim parental rights order.
[¶7] Hague is the child’s biological father. He is on active duty in the
military and stationed in Wisconsin, where he lives with his wife, son, and two
stepchildren. He has met this child twice for a total of a few hours. Hague
4
testified that he wishes to be a father to the child, and he and Moore want the child
to know Hague as his “real father.” He plans to visit Maine a few times each year
during the summer and holidays. Moore and Hague do not want Pitts to have any
contact with the child, but the court found that neither has considered how to
introduce Hague into the child’s life, the impact of Hague’s introduction on the
child, or how the removal of Pitts and his family from the child’s life would affect
the child.
[¶8] The court found that Pitts
has made an unequivocal permanent commitment to the child and
considers him to be his son . . . . The child has formed a bond of
attachment with [Pitts] and his family. A complete disruption of that
bond would have an adverse impact on the child. However, the
testimony and evidence was not sufficient for the court to quantify the
impact that removal of [Pitts] and his family from the child’s life will
have, nor to make any finding as to the duration of said adverse
impact.
Based on this language and its other findings, the court determined that Pitts is the
child’s de facto parent and that continued contact with Pitts is in the child’s best
interest. Other than the right to have unsupervised contact with the child, the court
did not award to or impose on Pitts any parental rights or responsibilities, including
any decision making power or the duty to pay child support.2
2
The court denied Moore’s motion to end Pitts’s contact with the child pending appeal.
See M.R. Civ. P. 62, 121.
5
[¶9] Moore timely appeals, arguing that the judgment is erroneous as a
matter of fact and law; she asserts that Pitts’s role in the child’s life has been short,
inconsistent, and devoid of the daily caretaking functions that characterize a
de facto parent; that Pitt’s removal from the child’s life will cause no trauma to the
child; and that the amount of time the court awarded Pitts was inappropriately
generous because it intrudes on the parent-child relationship between Moore and
the child, and between Hague and the child. We review the court’s findings of fact
for clear error, its conclusions of law de novo, and its ultimate award of visitation
for an abuse of discretion. Grant v. Hamm, 2012 ME 79, ¶ 6, 48 A.3d 789;
Philbrook v. Theriault, 2008 ME 152, ¶ 21, 957 A.2d 74.
II. DISCUSSION
[¶10] For some time now, we and other courts have been considering the
law of parentage in light of advancements in technology, changes in social norms
and family structures, and the resulting ever-expanding list of legal issues relating
to children and families. See, e.g., Nolan v. LaBree, 2012 ME 61, ¶ 2, 52 A.3d 923
(regarding a gestational surrogate who carried a child to whom she was not
biologically related after in vitro fertilization and zygote implantation). In
Delaware, for example, changes in family structure have been identified and
attributed to “at least three areas in our society which have undergone significant
change,” namely, (1) “considerable scientific and technological advances,” (2) “the
6
acknowledgement by many states of the rights of persons of the same sex to be
considered parents of the same child,” and (3) “the change from what we once
knew as the traditional American family” consisting of two married parents and
their children. Bancroft v. Jameson, 19 A.3d 730, 738-39 (Del. Fam. Ct. 2010).
As the United States Supreme Court recognized more than a dozen years ago,
[t]he demographic changes of the past century make it difficult to
speak of an average American family. The composition of families
varies greatly from household to household. While many children
may have two married parents and grandparents who visit regularly,
many other children are raised in single-parent households . . . .
Understandably, in these single-parent households, persons outside
the nuclear family are called upon with increasing frequency to assist
in the everyday tasks of child rearing.
Troxel v. Granville, 530 U.S. 57, 63-64 (2000) (plurality opinion); see Rideout v.
Riendeau, 2000 ME 198, ¶ 37, 761 A.2d 291 (Wathen, C.J., concurring).
[¶11] Despite these shifts in family and social structure, it remains “firmly
established” that parents have “a fundamental liberty interest to direct the care,
custody, and control of their children.” Davis v. Anderson, 2008 ME 125, ¶ 18,
953 A.2d 1166 (citing Troxel, 530 U.S. at 65); Rideout, 2000 ME 198, ¶ 12,
761 A.2d 291 (plurality opinion). To preserve that right, and in recognition of the
presumption that parents act in their children’s best interests, unless a person is
determined to be an unfit parent, there is “normally . . . no reason for the State to
inject itself into the private realm of the family to further question the ability of
7
that parent to make the best decisions concerning the rearing of that parent’s
children.” Rideout, 2000 ME 198, ¶¶ 12, 18, 761 A.2d 291 (alteration omitted)
(quotation marks omitted). Among the many aspects of a parent’s fundamental
right is the right to decide who may associate with the child. See id. ¶ 12;
Guardianship of Jewel M., 2010 ME 80, ¶¶ 4-5, 2 A.3d 301 (recognizing “a
presumption that fit parents act in the best interests of their children,” including
with respect to requests for third-party visitation or parental rights (quotation
marks omitted)).
[¶12] Nevertheless, a parent’s “constitutional liberty interest in family
integrity is not . . . absolute, nor forever free from state interference.” Rideout,
2000 ME 198, ¶ 19, 761 A.2d 291. This is true in great part because the rights of
another person—the child—must also be protected by the State. Thus, the focus of
any standards by which the State is allowed to interfere must, by necessity, include
the child. When the State does interfere with the fundamental right to parent, we
must evaluate that interference with strict scrutiny—the highest level of scrutiny—
which “requires that the State’s action be narrowly tailored to serve a compelling
state interest.” Id. Pursuant to the strict scrutiny standard, we have limited the
State’s intrusions into the parent-child relationship to those instances in which
8
there is some urgent reason3 or there are exceptional circumstances affecting the
child that justify the intrusion.4 See Robichaud v. Pariseau, 2003 ME 54, ¶ 7,
820 A.2d 1212; Merchant v. Bussell, 139 Me. 118, 121-22, 27 A.2d 816 (1942).
[¶13] There are currently four statutory means by which the Legislature
allows the State, through the courts, to order parental rights or visitation to a
non-parent.5 We have addressed three of the four statutory means6 and, in each
3
In 1942, we stated, “The natural right of a parent to the care and control of a child should be limited
only for the most urgent reasons.” Merchant v. Bussell, 139 Me. 118, 122, 27 A.2d 816 (1942). “Urgent
reasons” constitute the compelling State interest necessary for the State’s intrusion into the parent’s
decision making. Since then, we have regularly used the phrase “urgent reasons” when discussing State
intrusion into parental rights. See, e.g., Robichaud v. Pariseau, 2003 ME 54, ¶ 10, 820 A.2d 1212;
Croxford v. Roberts, 509 A.2d 662, 663 (Me. 1986); Stanley v. Penley, 46 A.2d 710, 711 (Me. 1946). We
note here that “compelling,” “urgent,” and “exceptional” are all adjectives intended to address the
heightened interest the State must present before it may interfere in a parent’s right to raise a child. We
use “exceptional circumstances” here as the most precise indicator of that heightened interest.
4
We also employ additional procedural protections in such matters in an effort to balance the
fundamental right at stake with the necessity for State intervention. See Rideout v. Riendeau, 2000 ME
198, ¶ 19, 761 A.2d 291 (plurality opinion); Conlogue v. Conlogue, 2006 ME 12, ¶ 13, 890 A.2d 691. For
example, pursuant to the Child and Family Services and Child Protection Act, 22 M.R.S. §§ 4001 to
4099-H (2013), the State may temporarily interfere in an individual’s right to parent a child only when a
court determines, by a preponderance of evidence, that the individual has subjected the child to
“jeopardy” in the form of “serious abuse or neglect.” 22 M.R.S. §§ 4002(6), 4035(2); see In re Christmas
C., 1998 ME 258, ¶ 13, 721 A.2d 629. Additionally, an individual’s right to parent his or her child may
be terminated only pursuant to a higher burden of clear and convincing evidence. In re Christmas C.,
1998 ME 258, ¶ 13, 721 A.2d 629; see In re C.P., 2013 ME 57, ¶ 9, 67 A.3d 558.
5
These four statutory methods are: (1) pursuant to the Child and Family Services and Child
Protection Act, which allows the State to place a child with a non-parent to protect the child from abuse or
neglect, see 22 M.R.S. § 4036(1)(F); (2) pursuant to the Grandparents Visitation Act, 19-A M.R.S.
§§ 1801-1805 (2013), which allows a grandparent to seek “reasonable rights of visitation or access” in
certain limited circumstances, 19-A M.R.S. § 1803(1); (3) pursuant to 19-A M.R.S. § 1653(2)(B) (2013),
which provides that “[t]he court may award reasonable rights of contact with a minor child to a 3rd
person” within the context of a parental rights and responsibilities order, see Davis v. Anderson, 2008 ME
125, ¶ 19, 953 A.2d 1166; and (4) pursuant to the guardianship provisions of the Probate Code,
see 18-A M.R.S. § 5-204 (2013).
6
We have not yet evaluated the nature or extent of the remedy provided by 19-A M.R.S.
§ 1653(2)(B).
9
case, we have considered whether, in light of the government interference
contemplated, the required compelling State interest exists.
[¶14] Using the lens of strict scrutiny, we have, to date, recognized only two
types of exceptional circumstances that are legally sufficient to justify the State’s
interference with the fundamental right to parent.7 First, we have recognized that
the State has a compelling interest in limiting, restricting, or even terminating a
parent’s rights when harm to the child will result from the absence of such
governmental interference. See In re Jazmine L., 2004 ME 125, ¶¶ 12, 14-15,
861 A.2d 1277. Thus, pursuant to the Child and Family Services and Child
Protection Act, 22 M.R.S. §§ 4001 to 4099-H (2013), the State may place a child
with a non-parent to protect the child from abuse or neglect. 22 M.R.S. § 4003.
Similarly, a court may appoint a guardian for a child when, inter alia, the child is
subjected to certain harmful circumstances, such as a “temporarily intolerable . . .
living situation.” 18-A M.R.S. § 5-204 (2013); see Guardianship of Jewel M.,
2010 ME 17, ¶ 12, 989 A.2d 726 (discussing that the guardianship statute’s
requirement of proof that the parent is unable to meet the child’s needs constitutes
an “urgent reason” satisfying strict scrutiny).
7
The Legislature, when it acts in this area, may determine that, as a matter of policy, the State should
interfere in other circumstances.
10
[¶15] Second, we have held that there are exceptional circumstances to
allow the State to interfere in the right to parent when necessary to preserve a
child’s “sufficient existing relationship” to a grandparent. 8 Passalaqua v.
Passalaqua, 2006 ME 123, ¶ 12, 908 A.2d 1214. Such exceptional circumstances
have only been recognized within the confines of the Grandparents Visitation Act,
19-A M.R.S. §§ 1801-1805 (2013), however, by which the Legislature codified a
method of allowing a grandparent’s continuing contact with a child over a fit
parent’s objection in certain limited circumstances, and in the absence of proof of
harm to the child.
[¶16] The distinction between the exceptional circumstances required for
intervention in a child protection or guardianship matter—i.e., harm—as opposed
to those adequate to support an award of grandparent visitation—i.e., a sufficient
existing relationship—reflects the difference in the extent of the intrusion into the
parent’s rights. In both child protection actions pursuant to title 22 and in
guardianship matters pursuant to title 18-A, the interference with a parent’s
fundamental rights may be extensive, including the actual removal of a child from
a parent’s care. Pursuant to the Grandparents Visitation Act, in contrast, the court
8
Even in considering what relationships are “sufficient existing” ones to meet the exceptional
circumstances requirement of strict scrutiny, however, we have so far set the bar quite high by requiring
proof of “extraordinary contact,” i.e., proof that the non-parent seeking rights to the child has “functioned
as [a] parent[] to the child[] for a significant period of time.” Conlogue, 2006 ME 12, ¶¶ 9-10, 17,
890 A.2d 691 (quotation marks omitted); see Robichaud, 2003 ME 54, ¶ 10, 820 A.2d 1212; Rideout,
2000 ME 198, ¶ 27, 761 A.2d 291; see also Davis, 2008 ME 125, ¶ 15, 953 A.2d 1166.
11
may award only “reasonable rights of visitation or access” to the child, and even
then only to the extent that the award does not “significantly interfere with any
parent-child relationship or with the parent’s rightful authority over the child.”
19-A M.R.S. § 1803(3). In short, in those matters currently recognized in Maine
that could involve an award of the full panoply of parental rights and
responsibilities to a non-parent, we have required a showing of harm to the child in
the absence of such government interference.
[¶17] In the matter before us, we are called upon to consider how a person
who is not a biological or adoptive parent may, over the objection of the child’s fit
biological or adoptive parent, obtain not just contact with or access to the child, but
that full panoply of parental rights and responsibilities as a de facto parent.
Because the extent of such an intrusion into a parent’s fundamental rights is
substantial, and for the reasons explained below, a court may determine that an
individual is a child’s de facto parent only when the failure or refusal to so
determine will result in harm to the child.
A. Establishing De Facto Parenthood
[¶18] Parenthood is meant to be defined by the Legislature, steeped as it is
in matters of policy requiring the weighing of multiple viewpoints. See Miller v.
Youakim, 440 U.S. 125, 142 n.21 (1979) (stating that the foster care system
involves “issues of legislative policy [that] are better addressed to the wisdom of
12
[the legislature] than to the judgment of this Court” (alterations omitted) (quotation
marks omitted)); Brann v. State, 424 A.2d 699, 704 (Me. 1981) (“It is appropriate
for the legislature rather than the court to make the policy decision regarding what
is practicable in a given situation.”) Although we have been discussing de facto
parenthood for almost thirteen years, 9 there is currently no Maine statutory
reference to de facto parenthood. We take this opportunity to again emphasize
that, given the evolving compositions of families and the need for a careful
approach, this issue would be best addressed by the Legislature.
[¶19] In the absence of Legislative action in such an important and unsettled
area, however, we must provide some guidance to trial courts faced with de facto
parenthood petitions. See Cheshire Med. Ctr. v. W.R. Grace & Co., 49 F.3d 26, 33
(1st Cir. 1995) (“Ordinarily issues of public policy are in the first instance
appropriate for a legislature’s determination by statute and, if not determined by
statute, may be determined by a state court of last resort in its decisions setting
precedents.”). Although in Rideout we discussed the constitutionality of the
Grandparents Visitation Act, the grandparents had acted as “parents” for the
children involved, and in our discussion of their circumstances we noted that other
jurisdictions, “without statutory authority, have modified the common law
9
Our first mention of the phrase “de facto parents” appears in Rideout, 2000 ME 198, ¶ 39, 761 A.2d
291 (Wathen, C.J., concurring). Earlier decisions set the stage for de facto parenthood, however, by
discussing the award of child custody to a non-biological parent over the objection of the biological
parent. See, e.g., Merchant, 139 Me. at 120-24, 27 A.2d 816 .
13
presumption and opened the door to visitation by adults who have become the
de facto parent[s] of a child.” 2000 ME 198, ¶ 40, 761 A.2d 291
(Wathen, C.J., concurring). Five months later, we concluded that a person might
obtain de facto parenthood status in Maine “through the development of the
parental relationship over time.” Stitham v. Henderson, 2001 ME 52, ¶ 24,
768 A.2d 598 (Saufley, J., concurring). In that case, a man and woman were
married for seven years before the woman gave birth to a child. Id. ¶ 2. The
parties divorced when the child was three years old, but the man did not learn until
after the divorce that he was not the child’s biological father. Id. ¶¶ 2-3. The man
had been declared as the child’s father on a variety of legal documents, including
the child’s birth certificate and the parties’ divorce judgment, and had acted as her
father since her birth. Id. ¶ 2. In response to his attempt to maintain parental
rights, we held that the court may award contact to a “person with significant
bonds to the child” who has had more than a “limited relationship to the child.” Id.
¶ 17 n.6.
[¶20] Since our announcement in 2001 that in some circumstances we
would recognize de facto parents, we have had occasion to discuss the concept in
only four cases—C.E.W. v. D.E.W., 2004 ME 43, 845 A.2d 1146; Young v. Young,
2004 ME 44, 845 A.2d 1144; Leonard v. Boardman, 2004 ME 108, 854 A.2d 869;
and Philbrook, 2008 ME 152, 957 A.2d 74. In C.E.W., two women agreed that one
14
of them would conceive a child through artificial insemination, and both signed a
parenting agreement detailing their equal rights to the child. 2004 ME 43, ¶ 2,
845 A.2d 1146. Five years after the child’s birth, the couple separated and the
non-biological mother instituted parental rights proceedings. Id. ¶¶ 1, 3, 5. We
discussed de facto parenthood in terms of “third persons who have played an
unusual and significant parent-like role in a child’s life,” and characterized the role
as “permanent, unequivocal, committed, and responsible,” but we did not precisely
determine its parameters given the parties’ agreement that the non-biological
parent was a de facto parent. Id. ¶¶ 9, 13-14. Rather, in C.E.W., we were
concerned only with the remedy of an award of parental rights and responsibilities
when the parties stipulate that a de facto parenthood relationship exists. Id.
¶¶ 14-15.
[¶21] In Young, a man married a woman who already had a child, and the
couple then had a child together. 2004 ME 44, ¶ 2, 845 A.2d 1144. When the
parties began divorce proceedings after five years, the District Court, on the
grounds that it lacked jurisdiction, refused to consider the man’s role in his
stepchild’s life in awarding parental rights and responsibilities between the parties.
Id. ¶¶ 2-3. We vacated the judgment after concluding that the District Court
“possesses broad powers to ensure that a child does not, without cause, lose the
relationship with the person who has previously been acknowledged to be the
15
father through the development of the parental relationship over time.” Id. ¶ 5
(alteration omitted) (quotation marks omitted).
[¶22] Similarly, in Leonard, a man began a relationship with a pregnant
woman, and the couple eventually began living together and had two more children
over the course of seven years. 2004 ME 108, ¶¶ 3-5, 854 A.2d 869. Later, in a
habeas corpus action, the court found that the man was the de facto parent of the
eldest child. Id. ¶ 11. We remanded the matter for a determination of parental
rights and responsibilities based on that finding. Id. ¶¶ 17-18.
[¶23] Finally, in Philbrook, a woman and her children lived with the
woman’s parents for periods of time over a span of ten years. 2008 ME 152,
¶¶ 2-6, 957 A.2d 74. When the trial court determined that the grandparents did not
have standing to pursue a parental rights action, the grandparents appealed.
Id. ¶ 14. In affirming the judgment, we held that de facto parenthood is a doctrine
of limited application, to be employed “when the putative de facto parent has
‘undertaken a permanent, unequivocal, committed, and responsible parental role in
the child’s life.”’ Id. ¶ 22 (quoting C.E.W., 2004 ME 43, ¶ 14, 845 A.2d 1146).
We also noted that in each case where we recognized a person as a de facto parent,
that person had been understood and acknowledged as a parental figure by both the
child and the child’s biological or adoptive parent. Id. ¶ 23.
16
[¶24] In our discussions of de facto parenthood in Maine through these five
decisions, we have not yet determined what precise test of de facto parenthood will
satisfy the exceptional circumstances requirement of strict scrutiny. See id. ¶ 22
(“[W]e have not precisely defined the parameters of the de facto parent concept
. . . .”); C.E.W., 2004 ME 43, ¶ 13, 845 A.2d 1146 (“We do not address the
separate and more fundamental question of by what standard the determination of
de facto parenthood should be made.”). We also have not announced the standard
of proof to be applied in such a determination.
[¶25] Moore encourages us to adopt the test of de facto parenthood set out
in American Law Institute, Principles of the Law of Family Dissolution
§ 2.03(1)(c) (2002), which defines a de facto parent as a person who, for two years
or more, has lived with the child and performed at least as much of the caretaking
for the child as the legal parent.10 See Stitham, 2001 ME 52, ¶ 25, 768 A.2d 598
10
American Law Institute, Principles of the Law of Family Dissolution § 2.03(1)(c) (2002) defines a
de facto parent as follows:
(c) A de facto parent is an 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,
(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
17
(Saufley, J., concurring). The American Law Institute also has set forth the
definition of a parent by estoppel, but Moore does not make any claim pursuant to
that principle. 11 American Law Institute, Principles of the Law of Family
Dissolution § 2.03(1)(b) (2002).
[¶26] After considering our precedent, the ALI standards, and the decisions
of other jurisdictions, we continue to decline to adopt the ALI standards as the test
of de facto parenthood in Maine. See, e.g., C.E.W., 2004 ME 43, ¶ 14 n.13,
(B) regularly performed a share of caretaking functions at least as great as
that of the parent with whom the child primarily lived.
11
American Law Institute, Principles of the Law of Family Dissolution § 2.03(1)(b) (2002) defines a
parent by estoppel as follows:
(b) A parent by estoppel is an individual who, though not a legal parent,
(i) is obligated to pay child support under Chapter 3; or
(ii) lived with the child for at least two years and
(A) over that period had a reasonable, good-faith belief that he was the
child’s biological father, based on marriage to the mother or on the actions or
representations of the mother, and fully accepted parental responsibilities
consistent with that belief, and
(B) if some time thereafter that belief no longer existed, continued to make
reasonable, good-faith efforts to accept responsibilities as the child’s father; or
(iii) lived with the child since the child’s birth, holding out and accepting full and
permanent responsibilities as parent, as part of a prior co-parenting agreement with the
child’s legal parent (or, if there are two legal parents, both parents) to raise a child
together each with full parental rights and responsibilities, when the court finds that
recognition of the individual as a parent is in the child’s best interests; or
(iv) lived with the child for at least two years, holding out and accepting full and
permanent responsibilities as a parent, pursuant to an agreement with the child’s
parent (or, if there are two legal parents, both parents), when the court finds that
recognition of the individual as a parent is in the child’s best interests.
18
845 A.2d 1146 (“Although [Rideout and Stitham] cite to the A.L.I.’s
PRINCIPLES, neither adopts its standard, nor do we do so today.”); Rideout,
2000 ME 198, ¶ 27, 761 A.2d 291. If and when the Legislature ventures into this
area, it may choose to adopt some or all of the ALI standards.
[¶27] Instead, in the absence of legislation in this area, we cleave to the
standard we have already announced. An individual seeking parental rights as a
de facto parent must therefore show that (1) he or she has undertaken a
“permanent, unequivocal, committed, and responsible parental role in the child’s
life,” Philbrook, 2008 ME 152, ¶ 22, 957 A.2d 74 (quoting C.E.W., 2004 ME 43,
¶ 14, 845 A.2d 1146), and (2) that there are exceptional circumstances sufficient to
allow the court to interfere with the legal or adoptive parent’s rights. Because the
fundamental rights of a biological or adoptive parent are at issue and strict scrutiny
must be applied to any interference with that right, see Rideout, 2000 ME 198,
¶¶ 18-19, 761 A.2d 291, and because the establishment of parental rights is no less
permanent than the termination of parental rights, see 22 M.R.S. § 4055(1)(B)(2),
the petitioner must make those showings by clear and convincing evidence.
1. Permanent, Unequivocal, Committed, and Responsible Parental Role
[¶28] We define a “permanent, unequivocal, committed, and responsible
parental role” by looking to the elements of de facto parenthood employed in
Massachusetts:
19
A de facto parent is one who has no biological relation to the child [as
a parent], but has participated in the child’s life as a member of the
child’s family. The de facto parent resides with the child and, with
the consent and encouragement of the legal parent, performs a share
of caretaking functions . . . .
E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999)). This language, which we
have already cited with approval, see Stitham, 2001 ME 52, ¶ 25 n.15, 768 A.2d
598 (Saufley, J., concurring); see also Rideout, 2000 ME 198, ¶ 40, 761 A.2d 291
(Wathen, C.J., concurring) (citing E.N.O. generally), gives litigants and courts a
list of the necessary elements for determining whether an individual’s relationship
with a child is permanent, unequivocal, committed, and responsible.12 It is a test
that not only requires the petitioner to establish that he or she has resided with the
child “as a member of the child’s family,” E.N.O., 711 N.E.2d at 891, but also
distinguishes between “parenting functions”—an umbrella term that encompasses
activities that benefit the child but do not necessarily involve direct involvement
with the child, such as providing financial support for the family or maintaining the
12
Unlike the ALI or the Dissenting Opinion, we do not impose a minimum duration for the
relationship that categorically eliminates the possibility of a de facto parent for a child younger than two
or five years old, respectively. See Dissenting Opinion ¶ 68; Smith v. Jones, 868 N.E.2d 629, 635 n.10
(Mass. App. Ct. 2007) (discussing the Massachusetts courts’ similar “reluctance to adopt a bright-line
time requirement” and noting that a failure to satisfy any particular duration element “would not likely be
sufficient for a conclusion that no de facto parenthood status existed”). Nevertheless, we note that in the
de facto parenthood cases presented to us, none involved a relationship between the de facto parent and
child that was shorter than five years. See Philbrook v. Theriault, 2008 ME 152, ¶¶ 2-6, 957 A.2d 74;
Leonard v. Boardman, 2004 ME 108, ¶¶ 3-5, 854 A.2d 869; Young v. Young, 2004 ME 44, ¶ 2, 845 A.2d
1144; C.E.W. v. D.E.W., 2004 ME 43, ¶¶ 1-3, 845 A.2d 1146; Stitham v. Henderson, 2001 ME 52, ¶ 2,
768 A.2d 598.
20
home—with the more relevant subset of “caretaking functions”—which involve
“the direct delivery of day-to-day care and supervision of the child, including
grooming, feeding, medical care, and physical supervision.” 13 A.H. v. M.P.,
857 N.E.2d 1061, 1071-72 (Mass. 2006) (alterations omitted) (quotation marks
omitted) (noting that “the parent-child bond grows from the myriad hands-on
activities of an adult in tending to a child’s needs”). Only by establishing that he
or she provided some actual caretaking functions can a petitioner be successful.14
In addition, the test accounts for the intent of the legal parent and the putative de
facto parent to co-parent, as measured before the dissolution of their relationship,
or the intent of the legal parent that the non-parent act as parent in place of the
legal parent.15 See Smith v. Jones, 868 N.E.2d 629, 634 (Mass. App. Ct. 2007). It
also ensures that the relationship was not undertaken for the purposes of financial
13
This distinction has been held to be “not appropriate” as between two legal parents. A.H. v. M.P.,
857 N.E.2d 1061, 1072 n.15 (Mass. 2006).
14
The E.N.O. court required a petitioner to demonstrate that he had performed a share of caretaking
functions “at least as great as the legal parent.” E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999). At
this juncture, we do not set the bar so high for this portion of the de facto parenthood standard.
Moreover, we disagree with the statements in the Dissenting Opinion that our decision not to require
an equal amount of caretaking “effectively relaxes the Massachusetts standard” or creates a “less
demanding approach” to establishing de facto parenthood. Dissenting Opinion ¶ 70. To the contrary, we,
unlike the Massachusetts court in E.N.O., require proof of harm to the child in the absence of a
declaration of de facto parenthood in order to more robustly satisfy the strict scrutiny requirement. Infra
¶ 29. Thus, the de facto parenthood standards we announce today are, overall, significantly more
burdensome than those discussed in the E.N.O. decision.
15
A court-ordered substitution of a non-parent for a legal parent, e.g., the creation of a guardianship,
may also be considered. See 18-A M.R.S. § 5-204.
21
compensation or with other institutional approval, as with a nanny, foster parent, or
daycare provider. See In re Parentage of L.B., 122 P.3d 161, 176 (Wash. 2005).
2. Exceptional Circumstances
[¶29] As discussed below, a de facto parent potentially may be awarded all
of the parental rights and responsibilities enjoyed by a biological or adoptive
parent. A non-parent should have the opportunity to obtain the full panoply of
rights and responsibilities only under the most exceptional circumstances, i.e., only
when the non-parent can establish, by clear and convincing evidence, that harm to
the child will occur if he or she is not acknowledged to be the child’s de facto
parent. We are not here announcing that “harm” in these cases must be the
equivalent of “jeopardy” in title 22 cases. Nonetheless, a court contemplating an
order that creates a parent out of a non-parent must first determine that the child’s
life would be substantially and negatively affected if the person who has
undertaken a permanent, unequivocal, committed, and responsible parental role in
that child’s life is removed from that role.
B. Effect of a Determination of De Facto Parenthood
[¶30] A determination that a person is a de facto parent means that he or she
is a parent on equal footing with a biological or adoptive parent, that is to say, with
the same opportunity for parental rights and responsibilities. See C.E.W., 2004 ME
43, ¶ 11, 845 A.2d 1146 (holding that once a person is determined to be a de facto
22
parent, “the court may consider an award of parental rights and responsibilities to
that individual as a parent”); see also In re Parentage of L.B., 122 P.3d at 177
(concluding that a de facto parent “stands in legal parity with an otherwise legal
parent”). Although the Legislature has yet to speak about de facto parenthood, it
has provided the framework in which parental rights and responsibilities are
awarded as between parents, that is, through 19-A M.R.S. § 1653. In particular,
section 1653 enumerates the provisions that a court “must include” in a parental
rights order:
(1) Allocated parental rights and responsibilities, shared parental
rights and responsibilities or sole parental rights and responsibilities,
according to the best interest of the child as provided in subsection 3.
An award of shared parental rights and responsibilities may include
either an allocation of the child's primary residential care to one parent
and rights of parent-child contact to the other parent, or a sharing of
the child's primary residential care by both parents. If either or both
parents request an award of shared primary residential care and the
court does not award shared primary residential care of the child, the
court shall state in its decision the reasons why shared primary
residential care is not in the best interest of the child;
(2) Conditions of parent-child contact in cases involving domestic
abuse as provided in subsection 6;
(3) A provision for child support as provided in subsection 8 or a
statement of the reasons for not ordering child support;
(4) A statement that each parent must have access to records and
information pertaining to a minor child, including, but not limited to,
medical, dental and school records and other information on school
activities, whether or not the child resides with the parent, unless that
access is found not to be in the best interest of the child or that access
23
is found to be sought for the purpose of causing detriment to the other
parent. If that access is not ordered, the court shall state in the order
its reasons for denying that access;
(5) A statement that violation of the order may result in a finding of
contempt and imposition of sanctions as provided in subsection 7;
(6) A statement of the definition of shared parental rights and
responsibilities contained in section 1501, subsection 5, if the order of
the court awards shared parental rights and responsibilities;
....
19-A M.R.S. § 1653(2)(D).
[¶31] Section 1653(2)(D)(3) requires that “[e]ither parent of a minor child
shall contribute reasonable and just sums as child support payable weekly,
biweekly, monthly or quarterly.” 19-A M.R.S. § 1653(8). Child support is
calculated pursuant to 19-A M.R.S. §§ 2001-2012 (2013). In particular, section
2005 imposes a rebuttable presumption “that the parental support obligation
derived from the support guidelines is the amount ordered to be paid, unless
support is established under section 2006, subsection 5 or section 2007.”
19-A M.R.S. § 2005.
[¶32] In short, once the court finds that a party is a de facto parent, that
party is a parent for all purposes, and the court must then go on to consider the
appropriate award of parental rights and responsibilities—including child
24
support—pursuant to title 19-A.16 See Leonard, 2004 ME 108, ¶¶ 17-18, 854 A.2d
869 (holding that when a party is found to be a de facto parent, the court must
“give complete relief to the parties [by] establish[ing] parental rights and
responsibilities” pursuant to section 1653 in proceedings involving the biological
father).
[¶33] We recognize that many aspects of the parental rights order may be
cumbersome in matters in which there are more than two legal parents.
Nevertheless, the parental rights statutes already contain language pursuant to
which such a judgment may be fashioned to reflect the reality of a family. See,
e.g., 19-A M.R.S. § 2007(3)(A) (setting out when the court may deviate from the
child support guidelines, such as when the result would be “unjust, inequitable or
not in the child’s best interest”).
16
Other jurisdictions have begun to determine child support as applied to de facto parents. See, e.g.,
Jones v. Barlow, 154 P.3d 808, 823 n.3 (Utah 2007) (Durham, C.J., dissenting) (“De facto parenthood is a
two-way street. While de facto parent status entitles a third party to standing for visitation, it also requires
a de facto parent to provide financial support for the child.”); see also Karin T. v. Michael T.,
484 N.Y.S.2d 780, 784 (N.Y. Fam. Ct. 1985) (holding that a person who agreed to co-parent a child
conceived by means of artificial insemination could not assert that she was not responsible for child
support for lack of parenthood); In re Streibeck, No. 26553-6-III, 2008 WL 4599683, at *3 (Wash. Ct.
App. Oct. 16, 2008) (involving a biological father of a child who attempted to challenge a child support
order requiring him to pay the biological mother on the ground that it failed to include a reduction to
account for another man’s child support obligation as a de facto parent); In re Custody of H.S.H.-K.,
533 N.W.2d 419, 435-36 (Wis. 1995) (adopting a four-part test of parenthood that includes whether the
petitioner has assumed the financial obligations of parenthood, including “contributing towards the
child’s support”); cf. T.F. v. B.L., 813 N.E.2d 1244, 1253 (Mass. 2004) (refusing to force a domestic
partner to pay child support for a child for whom she was not a de facto parent).
25
C. Procedure
[¶34] We cannot emphasize enough that parenthood is forever, whether the
relationship is biological, adoptive, or de facto. The role of a de facto parent is no
less permanent than that of any other parent; it is a role that may be surrendered,
released, or terminated only in limited circumstances as approved by a court.
See 18-A M.R.S. §§ 9-202, 9-204, 9-302 (2013); 22 M.R.S. § 4055(1)(B)(1). The
obligation of a de facto parent to pay child support, too, remains in force until
modified by the court, or until the child turns eighteen or graduates from secondary
school, or marries, or joins the armed services. 19-A M.R.S. § 1653(12).
[¶35] The determination of the rights and responsibilities of a person
petitioning for status as a de facto parent must occur in three stages. First, because
forcing a parent to expend time and resources defending against a third-party claim
to a child is itself an infringement on the fundamental right to parent, 17 Conlogue,
2006 ME 12, ¶ 13, 890 A.2d 691; Rideout, 2000 ME 198, ¶ 30, 761 A.2d 291, a
party seeking de facto parenthood status must, at the outset, establish his or her
standing to initiate the litigation by making a prima facie showing of de facto
parenthood according to the two-part test we have announced today, i.e., that the
petitioner had a permanent, unequivocal, committed, and responsible role
17
This preliminary determination regarding a person’s standing to assert de facto parenthood is but
one means of satisfying the strict scrutiny test. See Rideout, 2000 ME 198, ¶ 19, 761 A.2d 291;
Conlogue, 2006 ME 12, ¶ 13, 890 A.2d 691.
26
according to the E.N.O. elements, and that, if that relationship is terminated, the
child will suffer harm. At this first stage, “the court must make a preliminary
determination that such a relationship does in fact exist before a parent can be
required to fully litigate the issue.” Philbrook, 2008 ME 152, ¶ 19, 957 A.2d 74.
If the biological or adoptive parent opposes the petition, this initial determination
may be decided on affidavits through a motion to dismiss. Id. ¶¶ 15, 17.
[¶36] Second, if the petitioner satisfies the prima facie burden, the petitioner
must then prove, by clear and convincing evidence, that he or she satisfies both
elements of the two-part test we announce here and is, therefore, the child’s
de facto parent. Whether the petitioner has established these elements is a highly
fact-intensive inquiry that requires a consideration of the totality of the
circumstances.
[¶37] Finally, if, and only if, the individual is a de facto parent, the court
must establish the extent of the de facto parent’s rights and responsibilities
pursuant to 19-A M.R.S. § 1653. See C.E.W, 2004 ME 43, ¶ 11, 845 A.2d 1146.
This task is accomplished according to the preponderance of the evidence standard
applicable to parental rights actions generally because the court will reach this
question only if the petitioner has established, by clear and convincing evidence,
that he or she is the child’s de facto parent. See Hatch v. Anderson, 2010 ME 94,
¶ 12, 4 A.3d 904.
27
[¶38] At the heart of the determination of a de facto parent’s rights and
responsibilities, as with any other award of parental rights and responsibilities, is
the best interest of the child, which is defined with reference to nineteen factors in
19-A M.R.S. § 1653(3). See C.E.W., 2004 ME 43, ¶ 11, 845 A.2d 1146; see also
Kelley v. Snow, 2009 ME 128, ¶ 15, 984 A.2d 1281.
D. Conclusion
[¶39] Amidst the sequence of events and consolidation of actions that
constituted the case presented to it,18 the trial court handled this case with care and
skill. It followed the procedure for de facto parenthood that has already been
established by making a prima facie determination of standing, and by imposing
the burden of proof on Pitts. It also applied the clear and convincing standard of
proof to protect the fundamental right at issue, and expressly considered Pitts’s
de facto parenthood status before, and independently from, its best interest
determination in fashioning the remedy of an award of contact with the child.
See In re Scott S., 2001 ME 114, ¶ 19, 775 A.2d 1144.
[¶40] Nevertheless, because this is our first articulation of the force and
duration of the consequences of de facto parenthood, and our first announcement
18
As noted earlier, the parental rights and responsibilities action involving the child’s biological
parents, Moore and Hague, was consolidated with Pitts’s de facto parenthood action, and Hague actually
participated in and testified during the consolidated hearing. Given these facts, we need not address how
the absence of a biological or adoptive parent might affect a petitioner’s attempt to establish de facto
parenthood.
28
of the two-part standard pursuant to which de facto parenthood petitions must be
evaluated, we vacate the court’s judgment and remand the matter for the court—
and the parties—to consider anew their positions on this lifelong remedy affecting
the life of a child.
[¶41] On remand, the court must reconsider the record and allow the parties
to submit additional evidence to determine whether Pitts can meet his burden of
establishing de facto parenthood. If Pitts is determined to be the child’s de facto
parent, the court must fashion a remedy by delineating his parental rights and
responsibilities, including child support, and will have to do so in conjunction with
re-determining the parental rights and responsibilities of Moore and Hague.
The entry is:
Judgment vacated. Remanded for further
proceedings consistent with this opinion.
JABAR, J., with whom SILVER, J., joins, concurring.
[¶42] I join with the Plurality Opinion, which takes substantial steps to
clarify this unsettled area of law, and with its result. However, on one aspect of the
Plurality’s analysis, I disagree with it, and, necessarily, with the Dissent.19 I do not
19
The Dissent agrees with the Plurality that a measurable degree of harm is required before
interfering with a parent’s constitutional liberty interests, Plurality Opinion ¶ 16, Dissenting Opinion ¶ 62,
but would require a much greater showing of serious harm to a child’s “long-term physical, emotional, or
developmental well-being.” Dissenting Opinion ¶ 63.
29
join section II(A)(2) of the Plurality Opinion, and I write separately because I do
not believe that harm to the child is constitutionally required in order to obtain
de-facto-parenthood status over a fit parent’s objection. See Troxel v. Granville,
530 U.S. 57, 73 (2000) (plurality opinion); Rideout v. Riendeau, 2000 ME 198,
¶ 23, 761 A.2d 291 (plurality opinion). But see Plurality Opinion ¶¶ 16, 29;
Dissenting Opinion ¶ 62.
[¶43] The Plurality holds that, as a matter of constitutional law, persons
seeking de facto parenthood status must demonstrate that “the child’s life would be
substantially and negatively affected” before a court can award that status over a
biological or adoptive parent’s objections. Plurality Opinion ¶ 29. I disagree.
Parents’ fundamental rights to the custody and control of their children do not
require a threshold showing of harm to the child before a court can interfere with
those rights. See Troxel, 530 U.S. at 73; Rideout, 2000 ME 198, ¶ 23,
761 A.2d 291. Rather, the appropriate constitutional inquiry should weigh both a
parent’s fundamental liberty interests and a child’s interest in continuing contact
with an adult “‘who has acted as a parent to [the child].’” Rideout, 2000 ME 198,
¶ 27, 761 A.2d 291 (quoting Youmans v. Ramos, 711 N.E.2d 165, 172
(Mass. 1999)).
[¶44] Although the Dissent notes that we have “recognized . . . [that] a
compelling state interest requires a showing of some degree of harm or the threat
30
of harm to the child before a court may interfere with the parental rights of a fit
parent,” Dissenting Opinion ¶ 62, neither our precedent nor that of the
U.S. Supreme Court has ever required harm to the child as the only compelling
state interest to justify interfering with a parent’s fundamental liberty interest.
Rather, in Troxel, the Supreme Court explicitly declined to address “whether the
Due Process Clause requires . . . a showing of harm or potential harm to the child
as a condition precedent to granting visitation,” 530 U.S. at 73, and it has not yet
conclusively addressed the issue.20
[¶45] We have, however, addressed the question of whether some degree of
harm or potential harm is a necessary prerequisite before awarding a right of
custody or visitation to third parties. Rideout v. Riendeau, 2000 ME 198, ¶¶ 23-25,
761 A.2d 291 (plurality opinion). Contrary to the Dissent’s characterization of that
case, a plurality of this Court concluded that a showing of harm is not
constitutionally required. See id. But see Dissenting Opinion ¶ 62. In Rideout, the
District Court had concluded that the Grandparents Visitation Act was
unconstitutional because it did not require a finding of harm or a threat of harm as
a precondition to interfering with the parents’ fundamental liberty interests.
20
The Dissent states that the U.S. Supreme Court “did not reach the question of to what extent harm
must be shown for a court to override a parent’s decision” regarding the custody and care of his or her
children in Troxel v. Granville, 530 U.S. 57, 73 (2000) (plurality opinion). Dissenting Opinion ¶ 61 n.21
(emphasis added). However, the Troxel Court expressly declined to decide “whether the Due Process
Clause requires . . . a showing of harm or potential harm to the child” at all. Troxel, 530 U.S. at 73
(plurality opinion); see also id. at 76-77 (Souter, J., concurring).
31
2000 ME 198, ¶ 22, 761 A.2d 291. We vacated that judgment, stating, “An
element of ‘harm’ in the traditional sense is not, however, the only compelling state
interest extant when matters relating to the welfare of children are under
scrutiny.” Id. ¶ 23 (emphasis added). We concluded that
although the threat of harm to a child is certainly sufficient to provide
the State with a compelling interest, harm consisting of a threat to
physical safety or imminent danger is not a sine qua non for the
existence of a compelling state interest. . . . [Rather,] “[t]he natural
right of a parent to the care and control of a child should be limited
only for the most urgent reasons.” We conclude that “urgent reasons”
exist, where, as here, a grandparent who has functioned as a parent to
the child seeks continued contact with that child.
Id. ¶¶ 23-25 (footnote and citation omitted) (quoting Merchant v. Bussell,
139 Me. 118, 122, 27 A.2d 816 (1942)).
[¶46] Although I disagree with the Plurality’s conclusion that interference
with a parent’s fundamental liberty interest requires a showing of harm to the
child, we agree on several substantive points within the constitutional analysis.
First, in both Maine and federal constitutional law, it is “firmly established” that a
parent possesses a liberty interest, classified as a “fundamental right,” in making
decisions regarding the custody and control of his or her child. Rideout, 2000 ME
198, ¶¶ 18-19, 761 A.2d 291; see also Troxel, 530 U.S. at 65-66; Merchant,
139 Me. at 122, 27 A.2d 816; Plurality Opinion ¶ 11. Second, we agree that an
award of parental rights and responsibilities to a de facto parent unquestionably
32
interferes with the parent’s protected liberty interest. See Sparks v. Sparks,
2013 ME 41, ¶ 20, 65 A.3d 1223 (“A court order that assigns even temporary
rights to a nonparent interferes with the parent’s fundamental liberty interest.”);
Plurality Opinion ¶ 17. In protecting that liberty interest, our decisions afford
parents great protection by adopting a presumption that fit parents act in the best
interests of their children and by requiring any interference with that interest to
pass the strict-scrutiny test, which provides “that the State’s action [must] be
narrowly tailored to serve a compelling state interest.” Rideout, 2000 ME 198,
¶ 19, 761 A.2d 291; Plurality Opinion ¶ 12.
[¶47] Third, we agree that both harm and the threat of harm to the child
constitute a compelling state interest sufficient to override a parent’s fundamental
liberty interest. Rideout, 2000 ME 198, ¶ 23, 761 A.2d 291 (“[T]he threat of harm
to a child is certainly sufficient to provide the State with a compelling interest.”);
Plurality Opinion ¶ 14. Finally, we agree that any interference with a parent’s
fundamental liberty interest must be justified by something more than the best
interest of the child. See Troxel, 530 U.S. at 72-73; Rideout, 2000 ME 198, ¶ 23,
761 A.2d 291; Plurality Opinion ¶¶ 11, 39.
[¶48] However, we disagree on the issue of whether harm to the child is the
only compelling state interest that justifies a court’s award of de facto parenthood
status. See Plurality Opinion ¶¶ 16-17, 29; Dissenting Opinion ¶ 62. Because our
33
decisions require any interference with parents’ due process rights to satisfy the
strict scrutiny test, I set out the state’s compelling interest and narrowly tailored
means for safeguarding those rights in the de facto parenthood context.
See Rideout, 2000 ME 198, ¶ 19, 761 A.2d 291.
A. Compelling State Interest
[¶49] The state has a compelling interest to justify interfering with the
decision making authority of a fit parent “only for the most urgent reasons,”
Merchant, 139 Me. at 122, 27 A.2d 816, or in “exceptional circumstances,”
Plurality Opinion ¶ 12 & n.3; see also Rideout, 2000 ME 198, ¶ 23, 761 A.2d 291.
There are certain vitally important relationships that a child shares with persons
other than that child’s biological parents that are worth preserving and urgent
enough to warrant state intervention, even over the biological parent’s objection.
Rideout, 2000 ME 198, ¶ 27, 761 A.2d 291. For example,
[w]hen a grandparent has been the primary caregiver and custodian
for a child over a significant period of time, the relationship between
the child and the grandparent warrants application of the court’s
parens patriae authority on behalf of the child and provides a
compelling basis for the State’s intervention into an intact family with
fit parents.
Id. (quotation marks omitted).
[¶50] In order to safeguard the rights of the child, we have used our parens
patriae authority to preserve close relationships between children and
34
grandparents, id., and we should do the same to protect relationships between
children and those persons who function as parents to the child. This approach
recognizes that “[t]here is at a minimum a third individual, whose interests are
implicated in every case to which [a de facto parenthood determination] applies—
the child.” Troxel, 530 U.S. at 86 (Stevens, J., dissenting); see also Plurality
Opinion ¶ 12. “Consideration of rights the child holds is of paramount importance
because, regardless of the family constellation from which the child comes, in any
placement dispute it is the child who is the most vulnerable and the most
voiceless.” In re Custody of Shields, 136 P.3d 117, 130 (Wash. 2006) (Bridge, J.,
concurring). Recognizing the rights of de facto parents and children is part of a
greater societal trend, as a plurality of the U.S. Supreme Court has observed:
The nationwide enactment of nonparental visitation statutes is
assuredly due, in some part, to the States’ recognition of the[]
changing realities of the American family. Because grandparents and
other relatives undertake duties of a parental nature in many
households, States have sought to ensure the welfare of the children
therein by protecting the relationships those children form with such
third parties.
Troxel, 530 U.S. at 64 (plurality opinion) (emphasis added).
[¶51] By reading the Due Process Clause to require the child to suffer harm
or a threat of harm before awarding rights to a putative de facto parent, the
Plurality and the Dissent focus solely on the rights of the parents to the exclusion
of any competing interest of the child or third parties, who may have played a
35
much greater role in the child’s life than the child’s biological parent. “To focus
with strict scrutiny . . . on the compelling interest of the state, vis-a-vis [only] the
parents, is to ignore what may in a particular case be the equally compelling
interests of the children, the family, and the [third parties seeking custody or
visitation].” Rideout, 2000 ME 198, ¶ 39, 761 A.2d 291 (Wathen, C.J.,
concurring); see also Merchant, 139 Me. at 123-24, 27 A.2d 816.
[¶52] The expansive interpretation of parents’ due process rights elevates
the rights of the biological relative at a time when advances in reproductive
technology, the legalization of same-sex marriage, and the complexities of the
modern family render biological ties less relevant in identifying familial
relationships. See, e.g., Nolan v. LaBree, 2012 ME 61, ¶¶ 2-3, 5, 52 A.3d 923;
St. Mary v. Damon, 309 P.3d 1027, 1029-31,1032-35 (Nev. 2013) (holding that
both members of a same-sex couple could be considered “legal mothers” to a child
born by implanting the fertilized egg of one partner into the other partner). Given
the complexities of modern families, identifying the members of a child’s family is
not reducible to single-factor discrete rules. As Justice Stevens noted in Troxel,
[a] plurality of [the U.S. Supreme] Court [has] recognized that the
parental liberty interest was a function, not simply of “isolated
factors” such as biology and intimate connection, but of the broader
and apparently independent interest in family. A parent’s rights with
respect to her child have thus never been regarded as absolute, but
rather are limited by the existence of an actual, developed relationship
36
with a child, and are tied to the presence or absence of some
embodiment of family.
530 U.S. at 88 (Stevens, J., dissenting) (citations omitted).
[¶53] Thus, if a person seeking de facto parenthood status has demonstrated
that he or she has “fully and completely undertaken a permanent, unequivocal,
committed, and responsible parental role in the child’s life,” C.E.W. v. D.E.W.,
2004 ME 43, ¶ 14, 845 A.2d 1146 (emphasis added), the state has a compelling
interest to intervene and apply its parens patriae authority to safeguard the
relationships between children and their de facto parents.
B. Narrowly Tailored Means
[¶54] Our decisions governing de facto parenthood also feature narrowly
tailored means for safeguarding this compelling state interest. First, the threshold
requirements necessary for standing to bring a de facto parenthood claim are very
stringent, requiring a person to demonstrate that he or she has “undertaken a
permanent, unequivocal, committed, and responsible parental role in the child’s
life.” See Philbrook v. Theriault, 2008 ME 152, ¶ 22, 957 A.2d 74 (quotation
marks omitted).
[¶55] Second, in practice, we have upheld the use of this equitable remedy
in very limited circumstances, namely, “when the individual was understood and
acknowledged to be the child’s parent both by the child and by the child’s other
37
parent.” Id. ¶ 23; Plurality Opinion ¶ 28. Third, a person seeking de facto
parenthood status must now demonstrate that he or she has fulfilled a parental role
by clear and convincing evidence. Plurality Opinion ¶ 27. Finally, we also now
require a putative de facto parent to demonstrate that he or she has had direct
involvement with the child by performing “caretaking functions.” Plurality
Opinion ¶ 28 (quotation marks omitted). Because an award of de facto parenthood
status is subject to these limitations, the state’s intrusion on parents’ rights is
narrowly tailored to achieve its compelling interest in safeguarding the relationship
between children and their de facto parents. Cf. Rideout, 2000 ME 198, ¶¶ 29-32,
761 A.2d 291.
C. Conclusion
[¶56] In evaluating de facto parenthood claims, the appropriate
constitutional inquiry should weigh both the parents’ fundamental liberty interests
and the interests of their children in continuing contact with “adults who have fully
and completely undertaken a permanent, unequivocal, committed, and responsible
parental role in the child’s life.” C.E.W., 2004 ME 43, ¶ 14, 845 A.2d 1146. The
relationship between a child and an adult who has fulfilled this parental role is one
of the most fundamentally important and formative relationships that child will
have. Josh Gupta-Kagan, Children, Kin, and Court: Designing Third Party
Custody Policy To Protect Children, Third Parties, and Parents, 12 N.Y.U. J.
38
Legis. & Pub. Pol’y 43, 99 (2008) (“In reality, parents are not the only adults to
have significant or even primary relationships with children; millions of children
have such relationships with third parties.”); see also Rideout, 2000 ME 198, ¶ 40,
761 A.2d 291 (Wathen, C.J., concurring). Because the existing limitations that we
have imposed on persons seeking de facto parenthood status are narrowly tailored
to serve the state’s compelling interest in maintaining these fundamental
relationships, no further showing of harm to the child is constitutionally required.
In other words, I read the Constitution to say that there are “urgent reasons,”
sufficient to constitute a compelling state interest, in maintaining relationships
between de facto parents and children, without requiring a further showing of harm
to the child. See Rideout, 2000 ME 198, ¶¶ 23-27, 761 A.2d 291.
[¶57] My concern is that if the Legislature takes up this issue and creates a
statutory framework for establishing de facto parenthood status, it may view the
necessity of showing “harm to the child” or the threat of harm to be a constitutional
constraint on the factors that it deems relevant. The Dissent notes that
“[n]umerous other jurisdictions also require a showing of harm or the threat of
harm to the child before a court may award contact or parental rights over the
objection of a fit parent.” Dissenting Opinion ¶ 63 & n.22. Of the cases that the
Dissent cites, in several of the jurisdictions, the state legislatures have imposed the
requirement of harm to the child by statute. See Cal. Fam. Code § 3041(a)
39
(West 2007) (requiring the court, among other things, to “make a finding that
granting custody to a parent would be detrimental to the child” before awarding
custody to a nonparent); S.D. Codified Laws § 25-5-29(4) (2013) (requiring proof
that “other extraordinary circumstances exist which, if custody is awarded to the
parent, would result in serious detriment to the child” in order to rebut the
presumption in favor of a fit parent’s decision). However, other state legislatures
have enacted de facto parenthood statutes without requiring an element of harm to
the child. See, e.g., Del. Code. Ann. tit. 13, § 8-201(c) (2013); D.C. Code
§§ 16-831.01(1), 16-831.03 (2013). Whether, as a matter of public policy, de facto
parenthood claims in Maine should include harm or the threat of harm to the child,
is for the Legislature, not this Court, to decide.
[¶58] Until the U.S. Supreme Court determines that the Due Process Clause
requires an element of harm to the child before interfering with a fit parent’s rights,
the State of Maine, through its Legislature, ought to be free to set public policy to
determine whether harm should be part of the analysis.
LEVY, J., with whom ALEXANDER, J., joins, dissenting.
[¶59] The Court’s desire to announce new standards for evaluating claims
of de facto parenthood is understandable given the concept’s recent development
and the absence of legislatively declared public policy. Our prior decisions
40
provide sufficient guidance, however, for us to conclude that Pitts failed to prove
his status as a de facto parent. Accordingly, the District Court’s judgment should
be vacated on that basis, and this case should not be remanded for additional
proceedings. Further, the new standards announced by the Plurality do not
sufficiently account for the constitutionally protected interests at stake, do not
achieve the Plurality’s stated purpose of clarifying the law, and are not required to
fully and fairly decide this appeal. For these reasons, I respectfully dissent.
[¶60] I proceed by (A) addressing the constitutional requirement that a
person seeking rights as a de facto parent demonstrate that the child would suffer
harm if the person is not awarded parental rights, (B) critiquing the new standards
announced by the plurality opinion regarding de facto parenthood, and
(C) explaining why, under our existing precedent, Pitts failed to prove his status as
a de facto parent.
A. The Constitutional Requirement of Harm
[¶61] When a state court entertains a complaint seeking a declaration of
de facto parenthood, it engages in state action that implicates the constitutionally
protected liberty interest a parent has in parenting his or her child free from state
interference. See U.S. Const. amend. XIV, § 1; Me. Const. art. I, § 6-A; Davis v.
Anderson, 2008 ME 125, ¶¶ 11, 18, 953 A.2d 1166 (citing Troxel v. Granville,
41
530 U.S. 57, 65 (2000) (plurality opinion)).21 This facet of individual liberty
protected by the Fourteenth Amendment “is perhaps the oldest of the fundamental
liberty interests recognized.” Troxel, 530 U.S. at 65. “[I]t cannot now be doubted
that the Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody, and
control of their children.” Id. at 66. To protect this fundamental right, courts
recognize “‘a presumption that fit parents act in the best interests of their
children,’” including with respect to requests for third-party visitation or parental
rights. Guardianship of Jewel M., 2010 ME 80, ¶ 4, 2 A.3d 301 (quoting Troxel,
530 U.S. at 68); see also Davis, 2008 ME 125, ¶¶ 12-16, 953 A.2d 1166. Further,
any state interference with this right must be narrowly tailored to serve a
compelling state interest. Davis, 2008 ME 125, ¶¶ 11-13, 19, 953 A.2d 1166.
[¶62] As recognized in our cases involving termination of parental rights,
grandparent visitation, and guardianships, a compelling state interest requires a
21
In Troxel, a nonparent visitation case, the Supreme Court’s plurality opinion did not reach the
question of to what extent harm must be shown for a court to override a parent’s decision regarding
third-party visitation:
Because we rest our decision on the sweeping breadth of [the visitation rights statute] and
the application of that broad, unlimited power in this case, we do not consider the
primary constitutional question passed on by the Washington Supreme Court—whether
the Due Process Clause requires all nonparental visitation statutes to include a showing of
harm or potential harm to the child as a condition precedent to granting visitation. We do
not, and need not, define today the precise scope of the parental due process right in the
visitation context.
Troxel v. Granville, 530 U.S. 57, 73 (2000) (plurality opinion).
42
showing of some degree of harm or the threat of harm to the child before a court
may interfere with the parental rights of a presumptively fit parent. See
Guardianship of Jeremiah T., 2009 ME 74, ¶¶ 27-28, 976 A.2d 955 (recognizing
that, because of the fundamental liberty interest at stake, a guardianship may only
be maintained over a parent’s objection based on a showing of parental unfitness);
In re Jazmine L., 2004 ME 125, ¶¶ 12, 14-15, 861 A.2d 1277 (addressing when
serious harm or the threat of serious harm to a child may justify a finding of
parental unfitness for purposes of terminating parental rights); Rideout v.
Riendeau, 2000 ME 198, ¶ 24, 761 A.2d 291 (“‘The natural right of a parent to the
care and control of a child should be limited only for the most urgent reasons.’”
(quoting Merchant v. Bussell, 139 Me. 118, 122, 27 A.2d 816 (1942))); see also
18-A M.R.S. § 5-204(c) (2013) (permitting the court to appoint a guardian for a
minor, absent consent of the minor’s parents, if “a living situation has been created
that is at least temporarily intolerable for the child”); 22 M.R.S. § 4003(2) (2013)
(authorizing the State to remove children from the custody of their parents “only
where failure to do so would jeopardize their health or welfare”). Consistent with
this precedent, the foundation for the judicially created concept of de facto
parenthood is that courts may interfere with a parent’s lawful right to prevent his or
her child from having a relationship with a person seeking de facto parent status
only if “‘measurable harm would befall the child on the disruption of that
43
relationship.’” A.H. v. M.P., 857 N.E.2d 1061, 1069 (Mass. 2006) (quoting Care
& Protection of Sharlene, 840 N.E.2d 918, 926 (Mass. 2006)); see also Blixt v.
Blixt, 774 N.E.2d 1052, 1060-61 (Mass. 2002).
[¶63] Although we have not previously formulated a single standard to
measure the degree of harm needed to pass constitutional muster, both our
precedent and the relevant statutes demonstrate that the adverse consequences must
be sufficiently serious that the child’s long-term physical, emotional, or
developmental well-being will be threatened if de facto parenthood status is not
awarded. This view is in harmony with the “urgent reasons” standard applied in
Rideout and Merchant. See Rideout, 2000 ME 198, ¶¶ 22-27, 761 A.2d 291;
Merchant, 139 Me. at 122, 27 A.2d 816. What was “urgent” in both cases was the
“dramatic, and even traumatic, effect upon the child’s well-being” that would
follow from a parent’s decision to sever that child’s relationship with grandparents
who had functioned as “primary caregiver[s] and custodian[s] for [the] child over a
significant period of time.” Rideout, 2000 ME 198, ¶¶ 26-27, 761 A.2d 291
(quotation marks omitted); see Merchant, 139 Me. at 119-20, 122-24, 27 A.2d 816.
Thus, an “urgent reason” that may justify state interference with a decision usually
within the sole discretion of a fit parent is the need to prevent harm to the child.
Maine is not alone in requiring proof of harm. Numerous other jurisdictions also
44
require a showing of harm or the threat of harm to the child before a court may
award contact or parental rights over the objection of a fit parent.22
22
See, e.g., Fenn v. Sherriff, 1 Cal. Rptr. 3d 185, 201 (Cal. Ct. App. 2003) (holding that a court may
award custody to a third party, absent a showing of parental unfitness, “based on a clear showing that
such award is essential to avert harm to the child” (quotation marks omitted)); DiGiovanna v. St. George,
12 A.3d 900, 908 (Conn. 2011) (“[T]he court constitutionally may compel a parent to preserve a
relationship between a child and a third party, even in the face of strong parental opposition, when the
cessation of that relationship would cause substantial harm to the child.”); Beagle v. Beagle, 678 So. 2d
1271, 1276 (Fla. 1996) (holding that a statute imposing grandparental visitation rights over the objection
of at least one parent was unconstitutional because it did not require the state to demonstrate harm to the
child prior to the award of visitation rights); Clark v. Wade, 544 S.E.2d 99, 108 (Ga. 2001) (interpreting
the best interest standard of a parent-third party custody statute to require that the third party prove by
clear and convincing evidence that “the child will suffer physical or emotional harm if custody were
awarded to the biological parent”); Doe v. Doe, 172 P.3d 1067, 1079-80 (Haw. 2007) (“[P]roper
recognition of parental autonomy in child-rearing decisions requires that the party petitioning for
visitation demonstrate that the child will suffer significant harm in the absence of visitation . . . .”); In re
R.L.S., 844 N.E.2d 22, 30 (Ill. 2006) (“State interference with fundamental parental child-rearing rights is
justified in limited instances to protect the health, safety, and welfare of children.”); In re Marriage of
Howard, 661 N.W.2d 183, 191 (Iowa 2003) (holding that a state may only compel grandparent visitation
if there is “a showing of harm to the child beyond that derived from the loss of the helpful, beneficial
influence of grandparents”); Gill v. Bennett, 82 So. 3d 383, 390 (La. Ct. App. 2011) (holding that custody
may only be awarded to a nonparent if parental custody would result in substantial harm to the child);
A.H. v. M.P., 857 N.E.2d 1061, 1071 (Mass. 2006) (“[P]otential harm to the child is, of course, the
criterion that tips the balance in favor of continuing contact with a de facto parent against the wishes of
the fit legal parent, who has fundamental liberty interests in the child’s care, custody, and control.”
(quotation marks omitted)); Rohmiller v. Hart, 811 N.W.2d 585, 595 (Minn. 2012) (holding that, to be
constitutional, a third-party visitation statute must require the court to conduct more than a mere best
interest analysis in order to override a fit parent’s wishes); Locklin v. Duka, 929 P.2d 930, 934-35
(Nev. 1996) (“[E]xtraordinary circumstances sufficient to overcome the parental preference presumption
are those circumstances which result in serious detriment to the child.”); McAllister v. McAllister,
779 N.W.2d 652, 658 (N.D. 2010) (“When a psychological parent and a natural parent each seek a
court-ordered award of custody, the natural parent’s paramount right to custody prevails unless the court
finds it in the child’s best interests to award custody to the psychological parent to prevent serious harm
or detriment to the welfare of the child.” (quotation marks omitted)); Neal v. Lee, 14 P.3d 547, 550
(Okla. 2000) (holding that the trial court’s “vague generalization” about the positive effects grandparents
have on their grandchildren fell “short of the necessary showing of harm which would warrant the state’s
interference with this parental decision regarding who may see a child” (quotation marks omitted));
Clough v. Nez, 759 N.W.2d 297, 302 (S.D. 2008) (holding that the “extraordinary circumstances” that
would justify awarding nonparental visitation rights over a parent’s objection must result in serious
detriment to the child); In re Askew, 993 S.W.2d 1, 4 (Tenn. 1999) (“[A] natural parent may only be
deprived of custody of a child upon a showing of substantial harm to the child.”); In re J.C., 346 S.W.3d
189, 194-95 (Tex. App. 2011) (recognizing that a child’s welfare may be significantly impaired by
uprooting the child from a nonparental caretaker); Craven v. McCrillis, 868 A.2d 740, 742-43 (Vt. 2005)
(recognizing that “compelling circumstances” justifying interference with a parent’s visitation decision
include proof that “significant harm to the child will result in the absence of a visitation order”); Florio v.
45
[¶64] The jurisprudential basis for awarding a nonparent parental rights is to
advance the State’s interest in protecting a child from being arbitrarily cut off from
an important parental figure with whom the child has developed a significant
emotional attachment. As one commentator has observed, “The bond created
between a child and a caregiver is called attachment. . . . To ensure continuity of
relationships and recognize a child’s sense of time, courts must do more to
acknowledge legal rights for long-term caregivers who are psychological parents
but not legal parents.” Anna Sortun, Comment, Rebutting the Parental
Presumption in Oregon: Substantiating Emotional Bonds after Troxel v. Granville,
82 Or. L. Rev. 1191, 1197-98 (2003) (emphasis added).23
[¶65] Accordingly, our recent decisions regarding de facto parenthood have
all concerned children who had been cared for by a nonparent over a significant
period of time of at least five continuous years.24 See Leonard v. Boardman,
Clark, 674 S.E.2d 845, 847 (Va. 2009) (noting that the law’s presumption in favor of awarding custody to
a parent may be rebutted by a showing of an “extraordinary reason” for taking a child from the child’s
parent, among other factors (quotation marks omitted)); In re Custody of Shields, 136 P.3d 117, 143
(Wash. 2006) (en banc) (“[P]arental rights may also be outweighed in custody determinations when
actual detriment to the child’s growth and development would result from placement with an otherwise fit
parent.”).
23
“Attachment Theory states that the propensity to form a strong emotional bond to particular
caregivers is as fundamental in humans as the attachment behaviors that precede it.” Mary Elizabeth
Putnick, The State as Parent: Using Attachment Theory to Develop Child Welfare Policy in the Best
Interest of the Child, 24 N.Y.U. Rev. L. & Soc. Change 419, 423 (1998).
24
This approach also respects the Legislature’s decision to generally limit a nonparent’s ability to
obtain parental rights and responsibilities absent parental consent, waiver, or circumstances involving
jeopardy to the child. See, e.g., 18-A M.R.S. § 9-302 (2013) (articulating the requirements for adoption);
46
2004 ME 108, ¶ 16, 854 A.2d 869 (eight years); Philbrook v. Theriault, 2008 ME
152, ¶ 12, 957 A.2d 74 (nine years); Young v. Young, 2004 ME 44, ¶ 2, 845 A.2d
1144 (five years); C.E.W. v. D.E.W., 2004 ME 43, ¶¶ 1-4, 845 A.2d 1146
(nine years); Stitham v. Henderson, 2001 ME 52, ¶ 2, 768 A.2d 598 (five years).
The temporal aspect of the harm requirement ensures that de facto parent claims
are limited to those cases in which it is probable that the child has become
psychologically attached to the person claiming de facto parent status. This
temporal aspect of harm is recognized by the American Law Institute, Principles of
the Law of Family Dissolution: Analysis and Recommendations (2002)
(“ALI Principles”), which defines a de facto parent, in part, as an individual who
has lived with the child “for a significant period of time not less than two years.”
ALI Principles § 2.03(1)(c).
B. The Plurality Opinion’s Newly Announced Standards
[¶66] By recognizing the constitutional requirement of proof of harm, and
also requiring clear and convincing evidence that a de facto parent has “undertaken
a permanent, unequivocal, committed, and responsible parental role in the child’s
life,” Philbrook, 2008 ME 152, ¶ 22, 957 A.2d 74 (quotation marks omitted), the
plurality opinion reaffirms the standards that we have previously applied in cases
19-A M.R.S. § 1653(2) (2013) (setting forth the court’s authority to award parental rights and
responsibilities, including to a nonparent); 22 M.R.S. §§ 4002(6), 4035, 4036, 4055 (2013) (governing the
procedure for child protection and parental termination orders based on jeopardy and parental unfitness).
47
involving de facto parents. See Plurality Opinion ¶¶ 17, 27. However, the
Plurality Opinion goes further by reformulating or adding to these standards in five
ways that create uncertainty or unnecessarily lower the bar for demonstrating a
compelling state interest that would justify a court in overruling a fit parent’s
decision regarding what is best for her or his child. As I will discuss in the final
part of this opinion, none of these legal pronouncements are necessary to decide
this case.
[¶67] First, the Plurality Opinion describes the degree of harm that must be
shown as merely “that the child’s life would be substantially and negatively
affected if the person who has undertaken a permanent, unequivocal, committed,
and responsible parental role in that child’s life is no longer permitted to do so.”
Plurality Opinion ¶ 29. Whether a child’s interests would be “negatively affected”
by the denial of a nonparent’s request for a declaration of de facto parent status is
simply a different way of asking whether an award of de facto parent status to a
nonparent would be in the best interest of the child. The Plurality Opinion’s
“negative effect” standard is vague and possibly unconstitutional given the United
States Supreme Court’s conclusion in Troxel that the best interest of the child
standard is constitutionally insufficient to support judicial interference with a
parent’s rights. 530 U.S. at 67-73.
48
[¶68] Second, the Plurality Opinion does not recognize any minimum
temporal requirement for de facto parenthood, whether the two-year requirement
established by ALI Principles § 2.03(1)(c) or a longer period as reflected in our
prior decisions. The Plurality Opinion thus deemphasizes the requirement that, for
a court to review a fit parent’s decision to exclude a nonparent from the child’s
life, it must be shown that the nonparent acted as a “primary caregiver and
custodian for [the] child over a significant period of time.” Rideout, 2000 ME 198,
¶ 27, 761 A.2d 291 (emphasis added) (quotation marks omitted).
[¶69] Third, the Plurality Opinion distinguishes “parenting functions” from
“caretaking functions,” and suggests that proof of the latter is required to establish
a de facto parent/child relationship. Plurality Opinion ¶ 28. In so doing, the
Plurality Opinion embraces a distinction made in ALI Principles § 2.03(1)(c)
regarding de facto parents.25 This approach, however, effectively excludes from
25
ALI Principles § 2.03(1)(c) provides:
A de facto parent is an 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,
(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.
49
de facto parenthood those individuals who might not qualify as de facto parents
pursuant to ALI Principles § 2.03(1)(c) but would otherwise qualify as “parents by
estoppel” pursuant to § 2.03(1)(b).26 As the Massachusetts Supreme Judicial Court
has recognized, under the ALI Principles, only a parent by estoppel, and not a
de facto parent, “‘is afforded all of the privileges of a legal parent.’” A.H. v. M.P.,
857 N.E.2d 1061, 1073 (Mass. 2006) (quoting ALI Principles § 2.03 cmt. b). In
contrast, under the approach adopted by the Plurality Opinion, only a de facto
parent is afforded all the privileges of a legal parent. The Plurality Opinion’s
approach leaves the state of our law confused in relation to both the law of
26
ALI Principles § 2.03(1)(b) provides:
A parent by estoppel is an individual who, though not a legal parent,
(i) is obligated to pay child support under Chapter 3; or
(ii) lived with the child for at least two years and
(A) over that period had a reasonable, good-faith belief that he was the child’s
biological father, based on marriage to the mother or on the actions or representations of
the mother, and fully accepted parental responsibilities consistent with that belief, and
(B) if some time thereafter that belief no longer existed, continued to make reasonable,
good-faith efforts to accept responsibilities as the child’s father; or
(iii) lived with the child since the child’s birth, holding out and accepting full and
permanent responsibilities as parent, as part of a prior co-parenting agreement with the
child’s legal parent (or, if there are two legal parents, both parents) to raise a child
together each with full parental rights and responsibilities, when the court finds that
recognition of the individual as a parent is in the child’s best interests; or
(iv) lived with the child for at least two years, holding out and accepting full and
permanent responsibilities as a parent, pursuant to an agreement with the child’s parent
(or, if there are two legal parents, both parents), when the court finds that recognition of
the individual as a parent is in the child’s best interests.
50
Massachusetts, on which the plurality opinion is ostensibly based, and the ALI
Principles.
[¶70] Fourth, in defining what it means for a parent to have “a permanent,
unequivocal, committed, and responsible parental role in the child’s life,” Plurality
Opinion ¶ 27 (quotation marks omitted), the Plurality Opinion quotes and adopts
the definition of de facto parenthood expressed by the Massachusetts Supreme
Judicial Court in E.N.O. v. L.M.M.:
A de facto parent is one who has no biological relation to the child,
but has participated in the child’s life as a member of the child’s
family. The de facto parent resides with the child and, with the
consent and encouragement of the legal parent, performs a share of
caretaking functions . . . .
711 N.E.2d 886, 891 (Mass. 1999). This excerpt quoted in the Plurality Opinion
noticeably excises the last portion of the second sentence, which reads in its
entirety: “The de facto parent resides with the child and, with the consent and
encouragement of the legal parent, performs a share of caretaking functions at least
as great as the legal parent.” Id. (emphasis added).27 The Massachusetts Supreme
Judicial Court reiterated its adherence to this requirement in A.H. v. M.P.,
857 N.E.2d at 1070, and thus applies a standard that is more rigorous than the
partial excerpt of the standard cited by the Plurality Opinion. The Plurality
27
This statement of the required proof encapsulates the requirement set out in ALI Principles
§ 2.03(1)(c). See supra n.25.
51
Opinion effectively relaxes the Massachusetts standard, explaining in a footnote
that “[a]t this juncture, we do not set the bar so high for this portion of the de facto
parenthood standard,” Plurality Opinion n.14, but offers no explanation as to why a
less demanding approach is sound policy for Maine.
[¶71] Finally, without explanation, the Plurality Opinion adopts the less
stringent preponderance of the evidence burden of proof, rather than the more
demanding clear-and-convincing-evidence burden of proof, for purposes of
determining the child’s best interest. Plurality Opinion ¶¶ 37-38. Proof of the
child’s best interest to the standard of clear and convincing evidence is required,
however, in order to narrowly tailor the extent to which the judicial process
interferes with a parent’s fundamental liberty interest in parenting his or her child.
See Davis, 2008 ME 125, ¶¶ 11-13, 19, 953 A.2d 1166; In re Amanda H.,
2007 ME 43, ¶ 3, 917 A.2d 1120 (“A court may not enter an order terminating
parental rights in the absence of an explicitly stated finding, by clear and
convincing evidence, that termination is in the best interest of the child.”
(quotation marks omitted)). In addition, the Plurality Opinion divorces the best
interest determination from the threshold question of whether a nonparent should
be declared a de facto parent in the first instance. See Plurality Opinion ¶¶ 37-38.
Thus, a nonparent who may have had a permanent, unequivocal, committed, and
responsible parental role in the child’s life in the past, but whose continued
52
presence in the child’s life will be detrimental to the child, may nonetheless be
entitled to a declaration of de facto parenthood.
[¶72] Defining de facto parenthood is a delicate task that should be
preceded by a searching evaluation of the competing child welfare, family
preservation, and related public policy issues that are involved. This is reflected
both in the ALI Principles and in the Maine Legislature’s ongoing consideration of
these very questions. See Resolve 2013, ch. 12, § 2 (noting that “Maine law may
require clarification and updating with regard to issues relating to parental rights
and responsibilities” when factual parentage is uncertain, and extending the date by
which the Family Law Advisory Commission must report to the Legislature
regarding its study of the Uniform Parentage Act and other similar laws and
proposals). Thus, there exist sound reasons for the Court to exercise restraint and
not announce new standards governing de facto parenthood, particularly where
those standards are not required to fairly and fully adjudicate this appeal.
C. Proof of De Facto Parenthood in this Case
[¶73] By drawing from the existing standards employed in our prior
decisions, we can and should conclude that Pitts failed to establish that he is a
de facto parent for the following reasons.
[¶74] Pitts resided with Moore and the child from the child’s birth in
November 2009 until November 2010. Accounting for a one-month period of
53
separation between Moore and Pitts, Pitts resided with the child for approximately
eleven months. This is far less than the two years required by the ALI Principles
and the five or more years at issue in our recent decisions. Further, based on the
court’s findings, Pitts failed to prove that he acted as the child’s primary caregiver
during those eleven months, much less for a significant period of time.
[¶75] In addition, Pitts otherwise failed to prove that the child would suffer
harm or the threat of harm if Moore stands by her decision to restrict her son’s
relationship with him. The trial court recognized this deficiency when it concluded
that it could not quantify or characterize the adverse effect of denying visitation to
Pitts. Moreover, the court expressly declined to award Pitts parental rights and
responsibilities beyond limited rights of contact, stating that Pitts “failed to
demonstrate by clear and convincing evidence that any award of parental rights
and responsibilities (decision making or any type of residential care) is in the best
interest of the child.” One is hard-pressed to understand why a person found to be
unsuited for parental responsibilities should qualify as a child’s de facto parent.
[¶76] There is nothing in the evidentiary record of this case that calls for the
adoption of new de facto parent standards that are so malleable as to support an
award of parental rights and responsibilities to Pitts. This child custody litigation
should be brought to an end. I would vacate the trial court’s judgment and remand
for entry of a judgment in favor of Moore.
54
On the briefs:
Ronald D. Bourque, Esq., and Bradley C. Morin, Esq., Bourque & Clegg,
LLC, Sanford, for appellant Amanda Moore
Amy L. Fairfield, Esq., and Mark J. Peltier, Esq., Fairfield & Associates,
P.A., Lyman, for appellee Matthew Pitts
At oral argument:
Bradley C. Morin, Esq. for appellant Amanda Moore
Amy L. Fairfield, Esq., for appellee Matthew Pitts
Springvale District Court docket number FM-2011-00245
FOR CLERK REFERENCE ONLY