E.N. v. T.R.
This text of 474 Md. 346 (E.N. v. T.R.) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
E.N. v. T.R., No. 44, September Term, 2020
DE FACTO PARENTHOOD – TWO LEGAL PARENTS – CONSENT TO PROSPECTIVE DE FACTO PARENT’S FORMATION AND ESTABLISHMENT OF PARENT-LIKE RELATIONSHIP WITH CHILD – Court of Appeals held that under first factor of test for establishment of de facto parenthood—whether biological or adoptive parent consented to, and fostered, petitioner’s formation and establishment of parent-like relationship with child—where there are two legal (biological or adoptive) parents, prospective de facto parent must demonstrate that both legal parents consented to and fostered such relationship, or that non-consenting legal parent is unfit or exceptional circumstances otherwise exist. To declare existence of de facto parentship based on consent of only one legal parent and ignore whether second legal parent has consented to and fostered establishment of parent-like relationship, or is fit parent or whether exceptional circumstances exist undermines parent’s constitutional right to care, custody, and control of parent’s children. Disregarding whether both legal parents have consented to and fostered prospective de facto parent’s parent-like relationship with child, or that parent is otherwise unfit or exceptional circumstances exist, runs afoul of parent’s constitutional rights and basic family law principles.
Court of Appeals held that legal parent’s actual knowledge of and participation in formation of third party’s parent-like relationship with child may occur either through parent’s express or implied consent to and fostering of relationship. Inquiry into whether legal parent impliedly consented to and fostered potential de facto parent’s formation of parent-like relationship with child is fact-specific inquiry to be determined on case-by-case basis. Permitting de facto parenthood to be established based on express or implied consent of both legal parents, where there are two existing legal parents, or showing of unfitness or exceptional circumstances strikes appropriate balance between parent’s fundamental right to raise child and best interest of child.
Court of Appeals held that in this case conduct of one legal parent met the requirement that parent consent to and foster prospective de facto parent’s formation and establishment of parent-like relationship with children. Court of Appeals held, however, that record demonstrated that second legal parent did not expressly or impliedly consent to and foster prospective de facto parent’s formation of parent-like relationship with children. As such, although second, third, and fourth factors of de facto parent test may have been satisfied, first factor was not, and trial court erred in concluding that person was de facto parent to children and in granting person joint legal custody and sole physical custody. Circuit Court for Prince George’s County Case No. CAD18-04949
Argued: April 13, 2021 IN THE COURT OF APPEALS
OF MARYLAND
No. 44
September Term, 2020 ______________________________________
E.N.
v.
T.R. ______________________________________
Barbera, C.J. McDonald Watts Hotten Getty Booth Biran,
JJ. ______________________________________
Opinion by Watts, J. Barbera, C.J., and Biran, J., dissent. ______________________________________
Filed: July 12, 2021
Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-07-12 15:44-04:00
Suzanne C. Johnson, Clerk In this case, we must determine the requirements necessary for establishment of de
facto parenthood in Maryland where a child has two legal parents, specifically, whether
both parents must consent to, and foster, a prospective de facto parent’s formation and
establishment of a parent-like relationship with the child. The term “de facto parent” means
“parent in fact” and is used to describe a party, other than a child’s legal parent, i.e.,
biological or adoptive parent, who claims custody or visitation rights based upon the
party’s relationship with a non-biological, non-adopted child. Conover v. Conover, 450
Md. 51, 62, 68 n.12, 146 A.3d 433, 439, 443 n.12 (2016).1 In Conover, id. at 85, 74, 146
A.3d at 453, 446-47, a case involving one biological parent, this Court recognized de facto
parenthood in Maryland and adopted a 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, 421, 435-36 (Wis. 1995), under
which a person seeking de facto parent status must prove the following when petitioning
for custody of or visitation with a 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
1 In Conover, 450 Md. at 67-68 & n.12, 146 A.3d at 442-43 & n.12, we observed that the “term ‘psychological parent’ is closely related to the ‘de facto parent’ label in that the[] designations are used to describe persons who have assumed a parental role” and that the terms are used interchangeably in other jurisdictions. to have established with the child a bonded, dependent relationship parental in nature.
Conover, 450 Md. at 74, 146 A.3d at 446-47 (quoting H.S.H.-K., 533 N.W.2d at 435-36).
The circumstances of Conover, id. at 54-55, 146 A.3d at 435, involved a same-sex
couple and a dispute over one spouse’s right of access to a child conceived by artificial
insemination. The child was born before the couple was married, one spouse was the
biological mother of the child (the child’s birth certificate did not identify a father) and the
other spouse was not the adoptive parent of the child. In other words, Conover concerned
a custody dispute where there was only one legal parent and a third party sought de facto
parent status. In Conover, this Court issued a majority opinion and two concurring
opinions. One concurring opinion, id. at 87-88, 146 A.3d at 454-55, expressed concerns
about the possible implications of the Majority’s holding in situations in which there are
two legal parents and a prospective de facto parent:
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.
Free access — add to your briefcase to read the full text and ask questions with AI
E.N. v. T.R., No. 44, September Term, 2020
DE FACTO PARENTHOOD – TWO LEGAL PARENTS – CONSENT TO PROSPECTIVE DE FACTO PARENT’S FORMATION AND ESTABLISHMENT OF PARENT-LIKE RELATIONSHIP WITH CHILD – Court of Appeals held that under first factor of test for establishment of de facto parenthood—whether biological or adoptive parent consented to, and fostered, petitioner’s formation and establishment of parent-like relationship with child—where there are two legal (biological or adoptive) parents, prospective de facto parent must demonstrate that both legal parents consented to and fostered such relationship, or that non-consenting legal parent is unfit or exceptional circumstances otherwise exist. To declare existence of de facto parentship based on consent of only one legal parent and ignore whether second legal parent has consented to and fostered establishment of parent-like relationship, or is fit parent or whether exceptional circumstances exist undermines parent’s constitutional right to care, custody, and control of parent’s children. Disregarding whether both legal parents have consented to and fostered prospective de facto parent’s parent-like relationship with child, or that parent is otherwise unfit or exceptional circumstances exist, runs afoul of parent’s constitutional rights and basic family law principles.
Court of Appeals held that legal parent’s actual knowledge of and participation in formation of third party’s parent-like relationship with child may occur either through parent’s express or implied consent to and fostering of relationship. Inquiry into whether legal parent impliedly consented to and fostered potential de facto parent’s formation of parent-like relationship with child is fact-specific inquiry to be determined on case-by-case basis. Permitting de facto parenthood to be established based on express or implied consent of both legal parents, where there are two existing legal parents, or showing of unfitness or exceptional circumstances strikes appropriate balance between parent’s fundamental right to raise child and best interest of child.
Court of Appeals held that in this case conduct of one legal parent met the requirement that parent consent to and foster prospective de facto parent’s formation and establishment of parent-like relationship with children. Court of Appeals held, however, that record demonstrated that second legal parent did not expressly or impliedly consent to and foster prospective de facto parent’s formation of parent-like relationship with children. As such, although second, third, and fourth factors of de facto parent test may have been satisfied, first factor was not, and trial court erred in concluding that person was de facto parent to children and in granting person joint legal custody and sole physical custody. Circuit Court for Prince George’s County Case No. CAD18-04949
Argued: April 13, 2021 IN THE COURT OF APPEALS
OF MARYLAND
No. 44
September Term, 2020 ______________________________________
E.N.
v.
T.R. ______________________________________
Barbera, C.J. McDonald Watts Hotten Getty Booth Biran,
JJ. ______________________________________
Opinion by Watts, J. Barbera, C.J., and Biran, J., dissent. ______________________________________
Filed: July 12, 2021
Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-07-12 15:44-04:00
Suzanne C. Johnson, Clerk In this case, we must determine the requirements necessary for establishment of de
facto parenthood in Maryland where a child has two legal parents, specifically, whether
both parents must consent to, and foster, a prospective de facto parent’s formation and
establishment of a parent-like relationship with the child. The term “de facto parent” means
“parent in fact” and is used to describe a party, other than a child’s legal parent, i.e.,
biological or adoptive parent, who claims custody or visitation rights based upon the
party’s relationship with a non-biological, non-adopted child. Conover v. Conover, 450
Md. 51, 62, 68 n.12, 146 A.3d 433, 439, 443 n.12 (2016).1 In Conover, id. at 85, 74, 146
A.3d at 453, 446-47, a case involving one biological parent, this Court recognized de facto
parenthood in Maryland and adopted a 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, 421, 435-36 (Wis. 1995), under
which a person seeking de facto parent status must prove the following when petitioning
for custody of or visitation with a 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
1 In Conover, 450 Md. at 67-68 & n.12, 146 A.3d at 442-43 & n.12, we observed that the “term ‘psychological parent’ is closely related to the ‘de facto parent’ label in that the[] designations are used to describe persons who have assumed a parental role” and that the terms are used interchangeably in other jurisdictions. to have established with the child a bonded, dependent relationship parental in nature.
Conover, 450 Md. at 74, 146 A.3d at 446-47 (quoting H.S.H.-K., 533 N.W.2d at 435-36).
The circumstances of Conover, id. at 54-55, 146 A.3d at 435, involved a same-sex
couple and a dispute over one spouse’s right of access to a child conceived by artificial
insemination. The child was born before the couple was married, one spouse was the
biological mother of the child (the child’s birth certificate did not identify a father) and the
other spouse was not the adoptive parent of the child. In other words, Conover concerned
a custody dispute where there was only one legal parent and a third party sought de facto
parent status. In Conover, this Court issued a majority opinion and two concurring
opinions. One concurring opinion, id. at 87-88, 146 A.3d at 454-55, expressed concerns
about the possible implications of the Majority’s holding in situations in which there are
two legal parents and a prospective de facto parent:
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
-2- 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.
(Watts, J., concurring). The concerns expressed in the concurring opinion in Conover are
squarely before the Court in this case and we must now address the question of where there
are two legal parents whether both legal parents must consent to and foster a third party’s
formation and establishment of a parent-like relationship with a child under the first factor
of the H.S.H.-K. test. After careful consideration, we answer the question in the
affirmative.
In this case, E.N., Petitioner, is the biological mother of two minor children, G.D.
and B.D. D.D. is the biological father of the children. The four lived together as a family
until late 2009, when D.D. was incarcerated for drug offenses. Thereafter, the children
lived with E.N. and E.N.’s mother, their maternal grandmother. In late 2013, D.D. was
released from prison and entered into a new relationship with T.R., Respondent, to whom
he was engaged at the time of the trial in this case. In 2015, D.D. and T.R. purchased a
home together and later that year the children moved in with the couple. The children lived
with D.D. and T.R. until late 2017, when D.D. was incarcerated again for drug offenses,
this time in a federal prison in Pennsylvania. After D.D.’s incarceration, the children
continued to live with T.R. In November 2017, while T.R. and the children were visiting
the children’s paternal grandparents, E.N. arrived and sought the return of her children.
-3- E.N. was rebuffed by T.R. and law enforcement officers were called to the house. The
children returned from the grandparents’ home to T.R.’s house the following day. In
February 2018, T.R. filed in the Circuit Court for Prince George’s County a complaint for
custody, seeking sole legal and physical custody of the children. E.N. filed a counter-
complaint, seeking sole legal and physical custody of the children. Following a five-day
trial on the merits, the circuit court granted T.R.’s complaint for custody and denied E.N.’s
complaint. Despite expressly determining that E.N. did not consent to or foster the
children’s relationship with T.R. or even know T.R., the circuit court concluded that the
four factors of the H.S.H.-K. test were satisfied and T.R. was a de facto parent of the
children. The circuit court granted joint legal custody of the children to T.R. and E.N.,
with tie-breaking authority awarded to T.R., and granted sole physical custody of the
children to T.R., with visitation for E.N., the children’s biological mother.
E.N. appealed and the Court of Special Appeals affirmed the circuit court’s
judgment. See E.N. v. T.R., 247 Md. App. 234, 252, 236 A.3d 670, 680 (2020). The Court
of Special Appeals held “that a de facto parent relationship may be established by the
conduct of only one legal parent” even where there are two extant legal parents and that a
de facto parent has an equal fundamental constitutional right with the legal parents
concerning the care, custody, and control of a child. Id. at 237, 247, 236 A.3d at 672, 678.
E.N. filed in this Court a petition for a writ of certiorari, which we granted. See E.N. v.
T.R., 471 Md. 519, 242 A.3d 1117 (2020).
Against this background, we must decide whether, where there are two existing
legal parents, a de facto parent relationship may be created through the fostering and
-4- consent of only one legal parent to the formation of such a relationship, without the consent
of the second legal parent. We hold that, under the first factor of the H.S.H.-K. test adopted
by this Court in Conover for establishment of de facto parenthood, to establish de facto
parenthood, where there are two legal (biological or adoptive) parents, a prospective de
facto parent must demonstrate that both legal parents consented to and fostered a parent-
like relationship with a child, or that a non-consenting legal parent is an unfit parent or
exceptional circumstances exist.
In this case, it is clear that, although D.D. may have consented to and fostered
T.R.’s formation and establishment of a parent-like relationship with his and E.N.’s
children, E.N. did not consent to and foster the relationship between her children and T.R.,
(or even know T.R.) and T.R. did not establish that E.N. was unfit or that exceptional
circumstances existed such that T.R. could be declared a de facto parent. Because T.R.
failed to satisfy the first factor of the H.S.H.-K. test, the circuit court erred in concluding
that she was a de facto parent to the children and in granting her joint legal custody and
sole physical custody. As such, we reverse the judgment of the Court of Special Appeals,
which affirmed the circuit court’s judgment.
BACKGROUND
E.N. and D.D. are the biological parents of two minor children, G.D. and B.D., a
daughter and son who were born in 2005 and 2007, respectively.2 From 2005 until
2 We summarize the pertinent factual background from the circuit court’s Memorandum Opinion and Order, issued on June 24, 2019, focusing primarily on the residential history of the children. On brief in this Court, E.N. advises that, although she
-5- approximately October 2009, E.N. and D.D. lived together with the children in an
apartment in Upper Marlboro, Maryland. In October 2009, D.D. was incarcerated
following entry of a guilty plea in the Circuit Court for Prince George’s County to
possession with intent to distribute and possession of a firearm with a nexus to drug
trafficking. D.D. was sentenced to fifteen years’ imprisonment, with all but five years
suspended, for possession with intent to distribute, and a concurrent five years’
imprisonment for the firearm charge. After D.D. was incarcerated, E.N. and the children
lived with E.N.’s mother, the children’s maternal grandmother.
Approximately four years later, in October 2013, D.D. was released from prison.
Around the same time, D.D. began a relationship with T.R. and the two moved in together.
The children began visiting with D.D. and T.R. almost every weekend. In 2015, D.D. and
T.R. bought a home together. E.N. was aware that D.D. had a romantic partner, but she
did not know the woman’s identity or where the woman resided. Although the children
lived with E.N. and her mother from late 2013 to 2015, according to the circuit court, during
this time period, E.N. “was not an involved parent and demonstrated little parental
responsibility for the children.”
In June 2015, the children moved into D.D. and T.R.’s house, mainly because the
children wanted to spend more time with D.D. To help facilitate the move, E.N. signed
paperwork to permit the children to transfer from the school that they had been attending
“does not agree with some of the” findings of fact made by the circuit court in the memorandum opinion, she acknowledges that she is bound by the factual findings of the circuit court and does not challenge them.
-6- to a school in D.D.’s school district. E.N. did not object to the move because she “needed
a break” “to get herself right.” After the move, D.D. identified T.R. as an emergency
contact for the children with their new school. The children continued to live with D.D.
and T.R. until late 2017, when law enforcement officers raided the home and found three
firearms, ammunition, and a significant amount of cocaine. D.D. was convicted in federal
court of possession with intent to distribute cocaine and possession of firearms related to
drug trafficking and sentenced to a total of ten years’ imprisonment. At the time of trial in
this case, D.D. was serving his sentence at a federal prison in Pennsylvania and his
approximate release date is August 2024. T.R. and the children were reportedly unaware
of D.D.’s criminal activity and that drugs and guns were located in the home. From June
2015 to late 2017, while the children were living with D.D. and T.R., E.N. saw the children
once, in the spring of 2017, when she took the children out to dinner with their
grandparents. In addition, the circuit court found that “there was evidence that [E.N.]
attempted to locate her children a few times in order to retrieve them and bring them home.”
After D.D. was incarcerated in 2017, the children continued to live with T.R. In
November 2017, while T.R. and the children were visiting with the children’s paternal
grandparents, E.N. went to the grandparents’ home and asked for her children to be
returned to her. T.R. refused. Law enforcement officers were called to the home to diffuse
the situation. The children stayed the night at the grandparents’ home but returned to T.R.’s
home the following day. E.N. did not see or have contact with the children again until
September 2018, when the trial in the case began.
-7- Circuit Court Proceedings
On February 16, 2018, T.R., proceeding pro se, filed in the circuit court a complaint
against E.N. and D.D., seeking sole legal and physical custody of the children. In the
complaint, T.R. alleged that the children had lived with her for the preceding three years
and that they had no contact with E.N. In support of the complaint, T.R. included a letter
from D.D., dated November 30, 2017. The entirety of the letter consisted of the following
sentence: “I[, D.D.,] grant full custody to T.R. for my two children[,] GD 12 years old and
BD 10 years old[,] for legal guardianship[3] while I’m incarcerated.” The letter was signed
by D.D. and notarized.4
On March 12, 2018, E.N., proceeding pro se, filed an answer to the complaint, a
counter-complaint for custody, and a motion for emergency relief. In the answer, which
was a circuit court form answer, E.N. denied all of the allegations in the complaint and
checked the box requesting that the circuit court dismiss or deny the complaint. In the
counter-complaint, E.N. alleged that she should be granted sole legal and physical custody
of her children, without visitation by D.D. because he was incarcerated. In the motion for
emergency relief, E.N. sought an immediate order directing T.R. to return the children,
stating that she had no contact with her children and alleging that D.D. and T.R. were
hiding the children from her and that she knew the children were in danger. The circuit
court denied the motion for emergency relief.
3 In the letter, D.D. did not expressly seek or consent to de facto parenthood for T.R. and limited the request for legal guardianship to the period of his incarceration. 4 D.D. did not file an answer to the complaint for custody.
-8- On June 8, 2018, T.R., still proceeding pro se, filed an answer to the counter-
complaint. T.R. acknowledged that E.N. was the mother of G.D. and B.D. but denied that
it was in the children’s best interest for E.N. to be granted custody. On September 10,
2018, an attorney entered an appearance on T.R.’s behalf.
On September 13, 2018, the circuit court began a trial on the merits of the complaint
and counter-complaint. D.D. did not participate in the trial that day. During opening
statements, for the first time, T.R.’s counsel advised the circuit court that T.R. sought de
facto parent standing under Conover. E.N., still proceeding pro se, advised the circuit court
that she had made attempts to see her children but D.D. and T.R. kept the children away
from her and that she was fighting for the return of her children. T.R. began her case-in-
chief by calling E.N. as her first witness. After direct examination ended, E.N. was not
offered an opportunity to give testimony by way of cross-examination. T.R. was unable to
finish her case-in-chief that day, so the circuit court scheduled trial to resume on November
19 and 20, 2018. In light of the delay in resuming the trial, the circuit court issued a
pendente lite order granting E.N. visitation with the children. In addition, the circuit court
directed T.R. to bring the children to court with her on November 19, 2018 for the court to
interview the children in camera alone.5
On November 19, 2018, T.R. and E.N. appeared with counsel for the continuation
5 On October 24, 2018, T.R. filed a motion seeking the appointment of a custody evaluator. On November 8, 2018, an attorney entered an appearance on E.N.’s behalf. E.N., through counsel, filed an opposition to the motion seeking the appointment of a custody evaluator, and the circuit court denied the motion.
-9- of the trial. D.D. appeared telephonically from federal prison. Before resuming trial, the
circuit court conducted separate in camera interviews of the children. Following the
interviews, when the case was called, E.N.’s counsel objected to the in camera interviews
occurring before the circuit court had received all of the evidence in the case. The circuit
court overruled the objection, reasoning that it had planned to interview the children before
E.N. retained counsel. The circuit court advised that a court reporter had been present
during the interviews and that transcripts could be obtained, and the court summarized on
the record statements it attributed to each child.6
Trial resumed the next day. D.D. testified, among other things, that, starting in the
summer of 2013, the children began staying with him every weekend, rather than every
other weekend. According to the circuit court, D.D. testified that, while living with E.N.
and her mother, the children would wear dirty clothes to school, ate “unhealthy and non-
homecooked meals every day for dinner[,]” and slept on a couch in the basement of the
home. D.D. testified that he developed concerns about the children living with E.N. and
talked with her about having the children move in with him. In the spring of 2015, E.N.
signed school transfer paperwork to facilitate the move. As for his relationship with T.R.,
D.D. testified that he and T.R. began living together in late 2013. D.D. testified that he
never introduced T.R. to E.N. D.D. testified that E.N. knew of T.R., though, and referred
6 According to the circuit court’s memorandum opinion, when interviewed individually in camera both children testified that “their relationship with [T.R.] was fantastic, that they felt loved by her like a mother, and wanted to remain living with her[.] Specifically, B.D. stated: who wouldn’t want to live in a nice, clean, loving environment; who wants to go back to roaches, dirty clothes, and sharing a blanket where you don’t feel loved?”
- 10 - to T.R. as his “girlfriend.” D.D. eventually had a conversation with E.N., advising her that
he and T.R. were in a relationship and that the children “[we]re around” T.R. D.D. testified
that E.N. did not express any concerns at that time. As to T.R.’s relationship with the
children, D.D. testified that the relationship was “out of this world” and that he is happy
that the children “are around her and experiencing the good things that she offers to them.”
Without referencing either de facto parent status or legal guardianship, T.R.’s
counsel asked D.D. about the letter he wrote purporting to give full custody of the children
to T.R. while he was incarcerated. D.D. responded that he and T.R. plan to get married
and that T.R. has been around the children and knows them. D.D. testified that T.R. is
financially able to take care of the children and that he can maintain his relationship with
the children while incarcerated. D.D. testified that he believed that T.R. was the best person
to handle things that might arise medically with the children and that she was the person
best able to provide for the children.
On cross-examination, D.D. confirmed that, in 2009, he had been convicted of
possession with intent to distribute a controlled dangerous substance and possession of a
firearm in a drug trafficking crime in the circuit court and sentenced to fifteen years’
imprisonment, with all but five years suspended. D.D. also confirmed that, in 2017, he had
been convicted in the United States District Court for the District of Maryland for
possession with twenty grams or more of cocaine base and heroin with intent to distribute
and possession of a firearm in furtherance of a drug trafficking crime and sentenced to sixty
months’ imprisonment for each consecutively. In addition, D.D. confirmed that a search
and seizure warrant had been executed at the house that he and T.R. shared with the
- 11 - children and the cocaine, heroin, and three firearms that he was convicted of possessing
were recovered from the house. D.D. testified that after the children came to live him and
T.R. in June 2015, E.N. could have come and picked up the children and spent time with
them “any time she asked[.]” D.D. acknowledged that he wrote the letter dated November
30, 2017 purporting to grant T.R. full custody of the children for legal guardianship while
he was incarcerated. D.D. agreed that he wrote the letter without consulting E.N. and did
not give E.N. a copy of the letter.
On redirect examination, D.D. denied that he had been keeping the children away
from E.N. after 2015 and indicated that he wrote the letter of November 30, 2017 because
he felt E.N. was incapable of raising the children. After D.D. was called as a witness by
T.R. and cross-examined by E.N.’s counsel, the circuit court asked D.D. if there were any
questions he would like to ask himself.7 D.D. responded by, among other things, describing
himself as a wonderful father in spite of his “criminal activities” and stating that he has
taught his children “morals and responsibilities.” Neither during the examination of D.D.
by the parties’ attorneys nor during D.D.’s questioning of himself did D.D. reference or
request that T.R. be made a de facto parent.
At the close of T.R.’s case, E.N.’s counsel moved for judgment on the ground that
T.R. had failed to present evidence that E.N. was unfit or that there were exceptional
circumstances. T.R.’s counsel opposed the motion, citing Conover and asserting that T.R.
was entitled to de facto parent standing. The circuit court denied the motion for judgment
7 T.R. identified D.D. as a defendant in the case.
- 12 - and stated:
And I want to -- a couple of things. In the light most favorable concerning de facto parent, in the light most favorable, the Plaintiff has established that, but that’s only in the light most favorable. We still have the -- as [E.N.’s counsel] mentioned, we still have the negative parts and things along those lines.
But we -- if you go over the hurdle for the de facto parent, then you go to the best interest standards. I’m not sure that everybody’s had enough time to put on their best interest for the child standards.
Because the trial had not concluded, the circuit court scheduled an additional trial
day—April 4, 2019. The trial resumed that day and E.N.’s mother testified on E.N.’s
behalf. According to the circuit court, E.N.’s mother testified that, during the time the
children lived with her, their clothes were clean and she contested the allegation that the
children slept on a couch in the basement. The circuit court scheduled additional trial dates
for May 29 and 30, 2019. T.R. and E.N. appeared on May 29, 2019, but D.D. was
unavailable. On May 30, T.R., E.N., and D.D. appeared for trial. E.N. testified on her own
behalf, D.D. called his father as a witness, and T.R. testified as a rebuttal witness. At the
close of all of the evidence, the circuit court heard closing argument from the parties.
On June 24, 2019, the circuit court issued a Memorandum Opinion and Order,
granting T.R.’s complaint for custody and denying E.N.’s counter-complaint for custody.
The circuit court concluded that T.R. was a de facto parent of the children and, as such,
had standing to bring the complaint for custody and that it was in the best interest of the
children to award her custody. Specifically, the circuit court awarded T.R. and E.N. joint
legal custody of the children and awarded T.R. tiebreaker authority. In addition, the circuit
court awarded T.R. sole physical custody of the children, with E.N. being given visitation
- 13 - at specified times.8
In so awarding, the circuit court stated that the first factor of the H.S.H.-K. test was
“undoubtedly the most important.” The circuit court determined that, although E.N. “was
absent in the minor children’s lives since June 2015[,]” that absence did not automatically
mean that E.N. consented to the formation of a de facto parent relationship between the
children and T.R., as “E.N. could not consent because she lacked knowledge of T.R.’s
existence and importance in the lives of the minor children.” The circuit court explained:
Demonstratively, a parent is unable to consent and foster a de facto parent relationship by being absent and doing nothing. Here, E.N. was absent from the children’s lives since June 2015 and testified that she did not consent to this parental relationship. Implied consent does not meet the burden to satisfy prong one of the Conover test. . . . [T]he consent needs to be express and explicit. Moreover, even though E.N. knew that [D.D.] had a romantic partner, she did not positively identify her, know her, or meet her until November 2017, more than two years into the living arrangement, when E.N. attempted to retrieve her children. In addition, there was evidence that E.N. attempted to locate her children a few times in order to retrieve them and bring them home. Furthermore, in this case, E.N. filed a counter complaint asking the Court to award her sole legal and physical custody directly opposing T.R.[’s] request.
8 The circuit court’s order set forth T.R.’s and E.N.’s entitlement to access to the children as follows: during the school year, E.N. would have visitation with the children on the first, third, and fourth weekends of every month, from 6:00 p.m. on Fridays until 6:00 p.m. on Sundays. During the summer (which would be the Sunday after the children’s last day of school until the Sunday before the children restarted school in the fall), E.N.’s access would be on an alternating weekly basis from Sunday to Sunday at 6:00 p.m., with T.R. having the first week after the children’s last day of school. As to holidays, E.N. was given access on Thanksgiving break during odd years beginning in 2019, winter break and Christmas during even years beginning in 2020, each spring break, each Mother’s Day, and alternating years for each child’s birthday. T.R. was given access for each Father’s Day.
- 14 - Despite concluding that E.N. did not consent to or foster the children’s relationship
with T.R., the circuit court nonetheless concluded that Conover “allows a de facto parent
relationship to be formed through the consent of only one parent, and once that relationship
is formed, it may not be severed unless it is in the best interest of the child.” The circuit
court determined that “the de facto test does not take into consideration which parent
consented—the only item that matters is that a parent consented.” (Cleaned up). Utilizing
this rationale, the circuit court concluded that “there was consent by a biological parent to
satisfy the first prong, i.e., consent by the biological father,” D.D.
The circuit court stated that there was “much testimony” showing that D.D.
consented to the parent-like relationship between T.R. and the children. Among other
things, the circuit court stated:
[D.D.] and T.R. would help the children with their homework and school work, buy them food and clothes, bring them to their medical appointments. There was even testimony that T.R. was listed as an emergency contact in the school for the minor children. Furthermore, there was testimony that T.R. would plan celebrations for the children on their birthdays and special accomplishments. Lastly, and most importantly, there was testimony that the children’s relationship really started to blossom and grown into a parent-like relationship in [or] about 2016, before [D.D.] was arrested on his current drug charges. This is thus indicative of [D.D.]’s participation and fostering of the parent-like relationship. Indeed, even while still incarcerated, [D.D.] continues to consent to the parent-caliber relationship between the children and [T.R.]—and even submitted a document to the Court stating his desire for [T.R.] to have custody of the minor children.
The circuit court concluded:
The Court finds that this constitutes the knowing participation by a biological parent required to establish a de facto parent relationship between [T.R.] and the minor children. There is no dispute that T.R. cared for and supported the children with no expectation of financial compensation. And given the
- 15 - testimony, the Court finds that T.R.’s substantial degree of influence, care, and support of the children was, without question, consented to and fostered by [D.D.] The record makes clear that [D.D.] consented to and fostered T.R. assuming and acting in a parental role toward the minor children’s lives. Therefore, T.R. satisfies the first prong of the Conover test. . . . All of the actions pertaining to expressed consent were performed by [D.D.] Likewise, E.N. did not know where her children were and did not see them for three years. And as explained above, because of E.N.’s absence, she lacked the required knowledge and voluntariness required to expressly consent and foster a de facto parent relationship.
(Emphasis omitted).
As to the other factors of the test for creation of a de facto parent relationship, the
circuit court concluded that, because the children had lived in the same household as T.R.
since June 2015, the second factor was satisfied. As to whether T.R. assumed obligations
of parenthood without expectation of financial compensation, the circuit court concluded
that the factor was satisfied, as “T.R.’s unrefuted testimony demonstrates that she took
significant responsibility for the minor children’s care, education, and development, and
contributed to their support, without any expectation of compensation.” The circuit court
concluded that T.R. also satisfied the fourth factor—being “in a parental role for a
sufficient amount of time to develop a parental caliber relationship”—because T.R. had
shown that “she had developed a parental bond with the minor children since at least the
summer of 2016.” (Cleaned up). The circuit court ultimately concluded that, because T.R.
satisfied all four factors of the H.S.H.-K. test, T.R. was a de facto parent and that “her
status in th[e] dispute over custody [wa]s equal to that of E.N.”
The circuit court next employed the best interest of the child standard to determine
the issue of custody. Among other things, the circuit court concluded that it was
- 16 - “uncontested that all parents are fit; there was no evidence to the contrary presented through
the five days of trial.” The circuit court specifically determined that there had been “no
voluntary abandonment or surrender of the children.” As to the financial status of the
parents, the circuit court determined that T.R. earns an annual salary of $86,000, that E.N.
makes $12.50 per hour, and that D.D. is incarcerated and not working. The circuit court
determined that the children would “benefit from having all three parties [E.N., D.D., and
T.R.] in their lives. T.R. is an integral part of the well-being of the two minor children.
She takes full responsibility for the children and the children have bonded and established
a parent-child relationship with her.”
E.N. noted an appeal.
Opinion of the Court of Special Appeals
On August 25, 2020, in a reported opinion, the Court of Special Appeals affirmed
the circuit court’s judgment. See E.N., 247 Md. App. at 252, 237, 236 A.3d at 680, 672.
The Court of Special Appeals held that, where there are two extant legal parents, “a de
facto parent relationship can be created by only one legal parent consenting to and fostering
a parent-like relationship with a putative de facto parent.” Id. at 247, 236 A.3d at 677. In
so holding, the Court of Special Appeals relied largely on Conover and one of the
concurring opinions in Conover. See id. at 241, 236 A.3d at 674. The Court of Special
Appeals stated: “In its most literal sense, Conover held that the conduct of one legal parent
could create a de facto parent relationship between a third party and a child. But because
there was only one legal parent in Conover, the Court was not required to, and indeed did
not, address the issue presented here.” Id. at 242, 236 A.3d at 674 (footnote omitted).
- 17 - The Court of Special Appeals relied in part on the circumstance that the Majority
in Conover “did not respond to” the “specific and substantive concerns” expressed by the
concurrence, which, in the Court of Special Appeals’s view, “provide[d] at least some
evidence that the Court of Appeals did not disagree with [the concurring opinion’s]
interpretation of the majority opinion.” Id. at 246, 236 A.3d at 677. The Court of Special
Appeals cited cases in which majority opinions of this Court responded to concurring and
dissenting opinions, stating that “it is not uncommon for the Court of Appeals’s majority
opinion to respond to issues raised in concurring and dissenting opinions.” Id. at 246-47,
236 A.3d at 677 (cleaned up). The Court of Special Appeals determined that, in this case,
the circuit court did not err in concluding that T.R. was a de facto parent of the children
based on one parent’s interaction with her, namely, D.D.’s “conduct in creating a parent-
like relationship between T.R. and the children.” Id. at 247, 236 A.3d at 677 (footnote
omitted).
The Court of Special Appeals reasoned that E.N.’s due process rights were not
constitutionally infringed upon where E.N. neither consented to nor fostered the de facto
parent relationship “because, once T.R. achieved de facto parenthood status, T.R. qualified
as a ‘legal parent’ entitled to co-equal fundamental constitutional protections.” Id. at 249,
236 A.3d at 679. The Court of Special Appeals concluded that “such a rule strikes the
proper balance between parents’ fundamental rights to care for their children and the
children’s fundamental rights to be placed with caregivers who will promote their best
interests.” Id. at 249, 236 A.3d at 679 (citations omitted). The Court of Special Appeals
addressed the circuit court’s best interest determination and held that the circuit court
- 18 - conducted a “thorough review of the relevant custody factors” and that it did not abuse its
discretion in awarding primary physical custody of the children to T.R. Id. at 252, 236
A.3d at 680.9
Petition for a Writ of Certiorari
On September 25, 2020, E.N. petitioned for a writ of certiorari, raising the
following issue:
When a de facto parentship is formed and fostered at the behest of one legal parent without the knowledge or consent of the other legal parent, does the non-consenting parent retain her superior claim to custody, protected by the substantive component of the Fourteenth Amendment Due Process Clause, against the de facto parent, thereby requiring the de facto parent to prove that the non-consenting parent is unfit or that exceptional circumstances exist?
On December 7, 2020, this Court granted the petition. See E.N., 471 Md. 519, 242 A.3d
1117.
DISCUSSION
The Parties’ Contentions
E.N. contends that a fit legal parent is entitled to custody of her children over a third
party asserting de facto parentship where the objecting fit legal parent neither consented to
nor fostered the de facto parentship formed on account of the other legal parent. E.N.
argues that a legal parent has a fundamental, constitutional right to the care and custody of
the parent’s child, such that the parent is entitled to raise the “child without being subjected
to litigation brought by the government or a third party unless the legal parent is unfit or
9 The Court of Special Appeals did not expressly address the award of joint legal custody to T.R. and E.N.
- 19 - exceptional circumstances make custody with the parent detrimental to the best interests of
the child.” E.N. asserts that both the circuit court and Court of Special Appeals incorrectly
applied the multi-factor test for de facto parentship set forth in Conover by concluding that
a de facto parent relationship may be established by the conduct of only one legal parent
where there are two legal parents. E.N. maintains that, where there are two legal parents,
the holding in Conover “does not eliminate the requirement that a third party prove
unfitness or exceptional circumstances against a legal parent” who did not consent to or
foster the de facto parent relationship.
With respect to the circumstances of this case, E.N. points out that, as to the first
factor of the de facto parent test, the circuit court expressly determined that she did not
consent to or foster the formation and establishment of the de facto parent relationship
between T.R. and the children. E.N. also points out that the circuit court concluded that
she is a fit parent who did not voluntarily abandon her children and T.R. has not proven
that exceptional circumstances exist. E.N. maintains that, properly applying Conover, the
circuit court should have denied T.R. standing to seek custody. E.N. maintains that “[a]
third party does not qualify for de facto parenthood standing against a legal parent who did
not participate in the formation or establishment of the de facto parent, . . . regardless of
whether the de facto parent has a better home, job, and appears to be acting with
benevolence.”
T.R. responds that the Court of Special Appeals correctly held that a de facto parent
relationship may be established where one biological parent consents to the fostering of the
relationship and the other biological parent is absent from a child’s life for a period of
- 20 - years. T.R. argues that the circumstances of this case demonstrate “intentional actions” by
E.N. “that at the very least reflect implied consent to the fostering of a de facto parentship
between” her (T.R.) and the children. T.R. maintains that D.D. gave express consent to de
facto parenthood for her by writing a letter purporting to grant full custody of the children
to her while he is incarcerated. According to T.R., E.N. gave implied consent when she,
with the knowledge of D.D.’s incarceration, “chose to be absent and unavailable to care
for the minor children—thereby creating the space to allow [T.R.] to give parental care to
the minor children.”
Although T.R. acknowledges that the circuit court did not find E.N. to be an unfit
parent, she maintains that the following exceptional circumstance exists: “the strong and
potent parental affection that is to lead to desire and efforts to care properly for and raise
the child did not come in the form of the biological mother, based upon the testimony of
the minor children.” (Cleaned up). According to T.R., “[t]his is an exceptional
circumstance in that it is not typical.”
Standard of Review
Maryland Rule 8-131(c) provides that, “[w]hen an action has been tried without a
jury, the appellate court will review the case on both the law and the evidence.” The
appellate court “will not set aside the judgment of the trial court on the evidence unless
clearly erroneous, and will give due regard to the opportunity of the trial court to judge the
credibility of the witnesses.” Md. R. 8-131(c). “When a trial court decides legal questions
or makes legal conclusions based on its factual findings, we review these determinations
without deference to the trial court.” Plank v. Cherneski, 469 Md. 548, 569, 231 A.3d 436,
- 21 - 448 (2020) (cleaned up). As such, “[w]here a case involves the application of Maryland
statutory or case law, our Court must determine whether the [trial] court’s conclusions are
legally correct under a de novo standard of review.” Id. at 569, 231 A.3d at 448 (cleaned
up).
Family Law Principles, Parental Unfitness, and Exceptional Circumstances
It is “well[ ] established that the right[] 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.” Conover, 450 Md. at 60, 146 A.3d at 438
(citations omitted). In In re Yve S., 373 Md. 551, 565, 819 A.2d 1030, 1038 (2003), this
Court explained: “Certain fundamental rights are protected under the U.S. Constitution,
and among those rights are a parent’s Fourteenth Amendment liberty interest in raising his
or her children as he or she sees fit, without undue influence by the State.” (Footnote
omitted). The Supreme Court of the United States “has deemed the right to rear a child
essential and encompassed within a parent’s basic civil rights.” Id. at 566, 819 A.2d at
1039 (cleaned up). In Troxel v. Granville, 530 U.S. 57, 65 (2000), the Supreme Court
stated in no uncertain terms that the liberty “interest of parents in the care, custody, and
control of their children[ ] is perhaps the oldest of the fundamental liberty interests
recognized by this Court.” Moreover, we have recognized that the “best interests of the
child standard embraces a strong presumption that the child’s best interests are served by
maintaining parental rights” and the Supreme Court has “placed its imprimatur on the
presumption that parents act in the best interests of their children[.]” In re Yve S., 373 Md.
at 571-72, 819 A.2d at 1042 (citations omitted).
- 22 - Importantly, “Maryland has consistently echoed the Supreme Court, declaring a
parent’s liberty interest in raising a child a fundamental one that cannot be taken away
unless clearly justified.” Id. at 566, 819 A.2d at 1039 (citations omitted). Although there
may be “some tension inherent amongst the[] deep-rooted principles” of the best interest
of the child and the fundamental right of a parent to raise a child as the parent sees fit,
Conover, id. at 60, 146 A.3d at 438, in McDermott v. Dougherty, 385 Md. 320, 353, 869
A.2d 751, 770 (2005), this Court recognized:
Where the dispute is between a fit parent and a private third party, [] 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. A private third party has no fundamental constitutional right to raise the children of others.
In other words, “the rights of parents to custody of their children are generally superior to
those of anyone else[.]” Conover, 450 Md. at 60, 146 A.3d at 438.
As such, we have “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.” Id. at 61, 146 A.3d at 438
(citations omitted); see also Burak v. Burak, 455 Md. 564, 624, 168 A.3d 883, 918 (2017)
(The Court held “that for a third-party to have standing to intervene in a custody action, he
or she must plead sufficient facts that, if true, would support a finding of either parental
unfitness or the existence of exceptional circumstances and demonstrates that the best
interests of the child would be served in the custody of the third-party.”). In McDermott,
385 Md. at 325, 869 A.2d at 754, we held:
[I]n disputed custody cases where private third parties are attempting to gain
- 23 - custody of children from their natural parents, the trial court must first find that both natural parents are unfit to have custody of their children or that extraordinary circumstances exist which are significantly detrimental to the child remaining in the custody of the parent or parents, before a trial court should consider the ‘best interests of the child’ standard as a means of deciding the dispute.
Similarly, in Koshko v. Haining, 398 Md. 404, 444-45, 921 A.2d 171, 195 (2007), a case
involving a grandparent visitation statute, we held “that there 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.” We held that the grandparent visitation statute
was unconstitutionally applied to the petitioners in that case “in the absence of a threshold
finding of parental unfitness or exceptional circumstances[.]” Id. at 445, 921 A.2d at 195.
We have explained that, in custody cases, “unfitness means an unfitness to have
custody of the child, not an unfitness to remain the child’s parents; exceptional
circumstances are those that would make parental custody detrimental to the best interest
of the child.” In re Adoption/Guardianship of H.W., 460 Md. 201, 217, 189 A.3d 284, 293
(2018) (cleaned up). This is in contrast to termination of parental rights cases. Indeed,
“[f]acts that might demonstrate unfitness or exceptional circumstances in a custody case
are not always sufficient to terminate parental rights.” Id. at 217, 189 A.3d at 293.10
Additionally, we have stated that, with respect to “ordinary custody cases[,]” as opposed
10 In H.W., 460 Md. at 217, 189 A.3d at 293, this Court explained that, to justify a decision to terminate parental rights, the focus is “on the continued parental relationship, not custody[,]” and “[t]he facts must show that the parent is unfit to continue the relationship, or exceptional circumstances make the continued relationship detrimental to the child’s best interests.” (Cleaned up).
- 24 - to termination of parental rights cases, the General Assembly “has carefully circumscribed
the near-boundless discretion that courts have . . . to determine what is in the child’s best
interests.” Id. at 218, 189 A.3d at 293 (cleaned up). More recently, in Burak, 455 Md. at
648, 168 A.3d at 932, this Court elaborated on factors that are relevant to a trial court’s
“inquiry into whether a parent is unfit sufficient to overcome the parental presumption in
a third-party custody dispute[,]” stating that, in determining whether a parent is unfit, a trial
court
may consider whether: (1) the parent has neglected the child by manifesting such indifference to the child’s welfare that it reflects a lack of intent or an inability to discharge his or her parental duties; (2) the parent has abandoned the child; (3) there is evidence that the parent inflicted or allowed another person to inflict physical or mental injury on the child, including, but not limited to physical, sexual, or emotional abuse; (4) the parent suffers from an emotional or mental illness that has a detrimental impact on the parent’s ability to care and provide for the child; (5) the parent otherwise demonstrates a renunciation of his or her duties to care and provide for the child; and (6) the parent has engaged in behavior or conduct that is detrimental to the child’s welfare. Addressing the second factor, we conclude that “neglect” for the purposes of a finding of unfitness means that the parent is either unable or unwilling to provide for the child’s ordinary comfort or for the child's intellectual and moral development.
We added that these factors “are not the exclusive criteria [on] which a court must rely to
determine whether a parent is unfit, but should[ ] serve as a guide for the court in making
its findings.” Id. at 649, 168 A.3d at 932.11 And, importantly, even if a parent is found to
be unfit and custody is granted to a third party based on a trial court’s finding that such
placement is in the child’s best interest, the parent “is not foreclosed from seeking to regain
11 In Burak, 455 Md. at 649, 168 A.3d at 932, we explained that in a third-party custody dispute, “our precedent establishes that [] evidence” of parental unfitness “may be shown by a [] preponderance of the evidence.” (Citations omitted).
- 25 - custody of his or her child in the future upon a showing of changed circumstances.” Id. at
649, 168 A.3d at 933 (citation omitted).
As to exceptional circumstances, in McDermott, 385 Md. at 419, 869 A.2d at 809,
we identified the factors pertinent to such a finding:
The factors which emerge from our prior decisions which may be of probative value in determining the existence of exceptional circumstances include the [1] length of time the child has been away from the biological parent, [2] the age of the child when care was assumed by the third party, [3] the possible emotional effect on the child of a change of custody, [4] the period of time which elapsed before the parent sought to reclaim the child, [5] the nature and strength of the ties between the child and the third party custodian, [6] the intensity and genuineness of the parent’s desire to have the child, [7] the stability and certainty as to the child’s future in the custody of the parent. . . . The need to find “exceptional circumstances” is derived from the belief that extreme care must be exercised in determining a custody placement other than with a fit parent.
(Brackets in original) (cleaned up); see also In re Adoption/Guardianship of H.W., 460 Md.
201, 216, 189 A.3d 284, 292 (2018) (We reiterated that the factors set forth above were to
be used in a case to determine “whether exceptional circumstances were present in a
custody dispute between a parent and a third party[.]”). With respect to the first factor, in
Burak, 455 Md. at 663, 168 A.3d at 941, we explained that the purpose of the factor “is to
determine whether the child [] has been outside the care and control of the biological parent
for a sufficient period of time for a court to conclude that the constructive physical custody
of the child has shifted from the biological parent to a third-party[,]” i.e., “whether a
biological parent has, in effect, abandoned his or her child.” In McDermott, 385 Md. at
325-26, 869 A.2d at 754, we held that, in the absence of a finding of parental unfitness,
“the requirements of a parent’s employment, such that he is required to be away at sea, or
- 26 - otherwise appropriately absent from the State for a period of time, and for which time he
or she made appropriate arrangements for the care of the child, do not constitute”
exceptional circumstances to support an award of custody to a third party.
De Facto Parenthood in Maryland
As explained above, a de facto parent is “a party who claims custody or visitation
rights based upon the party’s relationship, in fact, with a non-biological, non-adopted
child.” Conover, 450 Md. at 62, 146 A.3d at 439 (cleaned up). In other words, a de facto
parent is a person other than a child’s legal, i.e., biological or adoptive, parent who has a
parent-like relationship with the child. See id. at 62, 146 A.3d at 439. In Conover, 450
Md. at 62 n.6, 146 A.3d at 439 n.6, we noted that the American Law Institute (“ALI”)
defines a de facto parent as follows:
[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,
(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.
(Quoting American Law Institute, Principles of the Law of Family Dissolution: Analysis
and Recommendations § 2.03(1)(c) (2003) (adopted May 16, 2000)).
In Conover, id. at 85, 74, 146 A.3d at 453, 446-47, this Court recognized de facto
- 27 - parenthood and adopted the following four-part test from H.S.H.-K., 533 N.W.2d at 435-
36, for determining whether a person is a de facto parent:
(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.
Because Conover is the primary case in Maryland concerning de facto parenthood,
we will spend some time discussing the case. In Conover, 450 Md. at 55, 146 A.3d at 435,
a same-sex couple, Michelle12 and Brittany, entered into a relationship in July 2002. The
two discussed having a child and agreed that Brittany would be artificially inseminated
from an anonymous donor, and in April 2010, Brittany gave birth to a son. See id. at 55,
146 A.3d at 435. The child’s birth certificate identified Brittany as the mother, but no one
was identified as the father. See id. at 55, 146 A.3d at 435. Six months later, in September
2010, Michelle and Brittany married. See id. at 55, 146 A.3d at 435. A year later, in
12 In Conover, 450 Md. at 55 n.1, 146 A.3d at 435 n.1, on brief in this Court, Michelle advised that “she is now a ‘transgender man’ and state[d] that the record d[id] not reflect her gender identity because she transitioned to living as a man after the contested divorce hearing occurred.” Michelle advised that for consistency she would refer to herself using female pronouns. See id. at 55 n.1, 146 A.3d at 435 n.1. As such, this Court also referred “to Michelle using female pronouns and her former name.” Id. at 55 n.1, 146 A.3d at 435 n.1.
- 28 - September 2011, Michelle and Brittany separated. See id. at 55, 146 A.3d at 435. From
September 2011 to July 2012, Michelle visited the child and had overnight and weekend
access. See id. at 55, 146 A.3d at 435. In July 2012, Brittany stopped allowing Michelle
to visit with the child. See id. at 55, 146 A.3d at 435.
In February 2013, Brittany filed a complaint for absolute divorce, and Michelle filed
an answer requesting visitation rights with the child. See id. at 55, 146 A.3d at 435. The
following month, Michelle filed a counter-complaint for absolute divorce, again requesting
visitation. See id. at 55, 146 A.3d at 435. Following an evidentiary hearing on Michelle’s
request for visitation, the trial court issued a written opinion concluding that Michelle did
not have standing to seek custody or visitation. See id. at 55-56, 146 A.3d at 435-36.
Although the trial court determined that Michelle was the child’s de facto parent, it stated
that, in Janice M. v. Margaret K., 404 Md. 661, 948 A.2d 73 (2008), the Court had
concluded that de facto parenthood is not recognized in Maryland. See Conover, 450 Md.
at 58, 146 A.3d at 437. As such, the trial court ruled that Michelle did not have third party
standing to contest custody or visitation absent a showing of parental unfitness or
exceptional circumstances, which Michelle had not demonstrated. See id. at 58, 146 A.3d
at 437. After the divorce was granted, Michelle appealed the trial court’s order as to
visitation and the Court of Special Appeals affirmed. See id. at 58, 146 A.3d at 437.
On certiorari, this Court overturned Janice M. as clearly wrong and contrary to
established principles and as being superseded by significant changes in the law or facts
and we recognized de facto parent status in Maryland, holding “that de facto parenthood is
a viable means to establish standing to contest custody or visitation[.]” Conover, 450 Md.
- 29 - at 66, 59, 146 A.3d at 442, 437. We observed that, before Janice M., in S.F. v. M.D., 132
Md. App. 99, 751 A.2d 9 (2000), the Court of Special Appeals had treated de facto parent
status as sufficient to confer standing to seek visitation and had adopted the four-factor test
set forth in H.S.H.-K. for determining whether a person is a de facto parent. See Conover,
450 Md. at 61, 146 A.3d at 439. Stated otherwise, in Conover, id. at 66, 146 A.3d at 442,
the Court determined that grounds for an exception to the principle of stare decisis13 existed
and overruled Janice M. We pointed out that the cases relied on in Janice M.—primarily
McDermott and Koshko—involved the rights of third parties, not those of people claiming
de facto parent status. See Conover, id. at 67, 146 A.3d at 442. We concluded that “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.” Conover, id. at 69, 146 A.3d at 443. Moreover, we stated that
Janice M. erred in its interpretation of the Supreme Court’s “narrow” decision in Troxel to
reason that “Troxel undermined S.F. and the recognition of de facto parenthood.”14
13 “Under the doctrine of stare decisis, generally, a court must follow earlier judicial decisions when the same points arise again in litigation.” Sabisch v. Moyer, 466 Md. 327, 372 n. 11, 220 A.3d 272, 298 n.11 (2019) (cleaned up). We have explained, however, that stare decisis “is not absolute. Under [] two exceptions to stare decisis, an appellate court may overrule a case that either was clearly wrong and contrary to established principles, or has been superseded by significant changes in the law or facts.” Id. at 372 n.11, 220 A.3d at 298 n.11 (cleaned up). 14 In Troxel, 530 U.S. at 61, grandparents of two minor children petitioned to obtain visitation rights pursuant to a state visitation statute, which 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
- 30 - Conover, id. at 69-70, 73, 146 A.3d at 443-44, 446.
We determined that, prior to Janice M., the recognition of de facto parenthood in
S.F. was, in actuality, “consistent with McDermott, Koshko, and Troxel because the
[H.S.H.-K.] test [S.F.] used to determine de facto parenthood was narrowly tailored to
avoid infringing upon the parental autonomy of a legal parent.” Conover, 450 Md. at 73-
74, 146 A.3d at 446. This Court expressly adopted the four-factor test first set forth in
H.S.H.-K., stating that “[u]nder 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.” Conover, 450 Md. at 75, 146 A.3d at 447. The Court explained that
de facto parenthood “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.” Id. at 75, 146 A.3d at
447.
In addition to identifying the weak grounds on which the decision in Janice M.
serve the best interest of the child whether or not there has been any change of circumstances.” (Cleaned up). A four-justice plurality held that the state visitation statute was unconstitutional as applied and that the state trial court’s visitation order in favor of the grandparents unconstitutionally infringed on the parent’s “fundamental right to make decisions concerning the care, custody, and control” of her children pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Troxel, 530 U.S. at 72-73. As we explained in Conover, 450 Md. at 70, 146 A.3d at 444, the Supreme Court’s holding in Troxel was “extremely narrow” and the plurality in Troxel “expressly declined to address whether substantive due process requires a showing of harm before non-parental visitation is ordered and asserted that ‘we do not, and need not, define today the precise scope of the parental due process right in the visitation context.’” (Quoting Troxel, 530 U.S. at 73).
- 31 - rested, we concluded that Janice M. had been undermined by subsequent events, primarily
Maryland’s recognition of same-sex marriage in 2012, which demonstrated greater
acceptance of different types of family units in society. See Conover, id. at 77, 146 A.3d
at 448 (citations omitted). Moreover, at the time of the Court’s holding in Conover, “a
majority of states, either by judicial decision or statute, [] recognize[d] de facto parent
status or a similar concept.” Id. at 78, 146 A.3d at 449 (citations omitted). We observed
that “family law scholarship and the academic literature [] also endorsed the notion that a
functional relationship—as well as biology or legal status—can be used to define
parenthood.” Id. at 81, 146 A.3d at 451. We noted that the ALI had “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.” Id. at 81, 146 A.3d at 451
(citation omitted). We determined that Janice M. “sharply” deviated from the law in other
jurisdictions, which reinforced “our decision to overturn Janice M. and recognize de facto
parenthood” in Maryland. Conover, 450 Md. at 82, 146 A.3d at 451.
We explained that, “[i] n light of our differentiation in McDermott, 385 Md. at 356,
869 A.2d 751, between ‘pure third parties’ and those persons who are in a parental role,
we now make explicit that de facto parents are distinct from other third parties.” Conover,
450 Md. at 85, 146 A.3d at 453. We held that a de facto parent has “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.” Id. at 85, 146 A.3d at
453. As such, we reversed the judgment of the Court of Special Appeals and directed that
- 32 - Court to remand the case to the trial court for a “determination of whether, applying the
H.S.H.-K. standards, Michelle should be considered a de facto parent[.]” Id. at 85, 146
A.3d at 453.
As explained above, in Conover there were two concurring opinions. One
concurring opinion agreed with the recognition of de facto parenthood in Maryland, but
expressed concern that, in adopting the four-factor H.S.H.-K. test, the Majority adopted “a
standard that [was] too broad and that could have a negative impact on children in
Maryland[,]” in large part because de facto parenthood could be established with the
consent of only one legal parent. Conover, id. at 87, 146 A.3d at 454 (Watts, J.,
concurring). The concurring opinion pointed out that in holding that when seeking de facto
parent status, a 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
a child, the Majority apparently held “that only one parent [was] needed to consent to and
foster a parent-like relationship with the would-be de facto parent.” Id. at 87-88, 146 A.3d
at 454-55 (Watts, J., concurring). The concurring opinion explained that the first factor of
the H.S.H.-K. test, as framed by the Majority, would “work” where there is only one
existing legal parent, but observed that where there are two existing parents, “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.”
Id. at 88, 146 A.3d at 455 (Watts, J., concurring). Such circumstances not only ignored the
reality of family life, but also could “result in a child having three parents vying for custody
and visitation, and being overburdened by the demands of multiple parents.” Id. at 88, 146
- 33 - A.3d at 455 (Watts, J., concurring).
The concurring opinion expressed concern that, where there are two existing
parents, children would “not be served well by the creation of a test that does not account
for the second parent’s knowledge and consent.” Id. at 88, 146 A.3d at 455 (Watts, J.,
concurring).15 The concurring opinion offered the following guidance for the circumstance
where a child has two existing parents:
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: [] 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 parents, that both parents consented to the establishment of a de facto parentship[.]
Id. at 93, 146 A.3d at 458 (cleaned up) (Watts, J., concurring). The concurring opinion
stated that, although the holding of the majority opinion was appropriate for the parties in
the case, adoption of the four-factor H.S.H.-K. test, “with no additional safeguards or
limitations” resulted in a “fail[ure] to provide important safeguards as to how de facto
parentships are to be created and fail[ed] to serve all litigants, including those similarly
15 The concurring opinion observed that even creating a standby guardianship in Maryland has traditionally required the consent of both parents. See Conover, 450 Md. at 89, 146 A.3d at 455 (Watts, J., concurring).
- 34 - situated to the parties in th[e] case as well as others who do not live in a classic nuclear
family.” Id. at 94, 146 A.3d at 458 (Watts, J., concurring). In Conover, 450 Md. at 75
n.18, 146 A.3d at 447 n.18, in a footnote, the majority commented on the potential
recognition of successive de facto parents and stated that “[i]n 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.” Despite addressing the
concern of multiple de facto parents, however, the majority did not comment on the issue
raised in the concurrence regarding the need for the consent of both parents where there
are two legal parents.
In a second concurring opinion, the Honorable Clayton Greene, Jr. also agreed with
the recognition of de facto parent status in Maryland and the adoption and application of
the H.S.H.-K. four-factor test, but disagreed “that a person who qualifies as a de facto
parent is not required, per se, to establish exceptional circumstances.” Conover, 450 Md.
at 86, 146 A.3d at 453-54 (Greene, J., concurring). Judge Greene would have required
Michelle “to demonstrate exceptional circumstances to justify the need for a best interest
analysis” and would have concluded that de facto parenthood “is a relevant factor but []
not the only factor for the court to consider in reaching [an] ultimate decision to grant child
access.” Id. at 86, 146 A.3d at 454 (Greene, J., concurring).
Two years after Conover, in Kpetigo v. Kpetigo, 238 Md. App. 561, 565, 192 A.3d
929, 932 (2018), the Court of Special Appeals rejected a father’s argument that Conover
- 35 - recognized de facto parenthood only for same-sex married couples and affirmed a trial
court’s finding that the father’s ex-wife was a de facto parent to F, the father’s son from a
prior relationship. The father and the ex-wife had parented two boys—L, their biological
child, who was born during the couples’ marriage, and F, the father’s son from a previous
relationship with a woman who was a resident of the Ivory Coast. See id. at 565-66, 192
A.3d at 932. From the time he was four months old, F, who was born in France, visited
the father in the United States, with both the father and ex-wife caring for him. See id. at
566, 192 A.3d at 932. When F was three years old, the father and ex-wife married; at that
time, F lived mostly full time with the couple. See id. at 566, 192 A.3d at 932. After the
father and ex-wife married, she expressed interest in adopting F, but the father was
reluctant to disrupt the relationship between F and his biological mother. See id. at 566,
192 A.3d at 932. The ex-wife nevertheless cared for F as if he were her child and was
involved in all aspects of his life. See id. at 566, 192 A.3d at 932. In 2014, F was abducted
by his mother while visiting her in Africa, and the father and ex-wife worked to regain
custody. See id. at 566, 192 A.3d at 932. After F was returned, the father gained full
physical and legal custody of F. See id. at 566, 192 A.3d at 932. Aside from F’s mother
visiting once in 2015, her communication with F thereafter was through calls and video
chats as a warrant had been issued for her arrest in the United States. See id. at 567, 192
A.3d at 933.
In December 2015, the father and ex-wife separated. See id. at 567, 192 A.3d at
933. Until that time, F had resided full time with the couple and after the separation both
F and L initially lived with the ex-wife until F eventually moved to live with the father.
- 36 - See id. at 567, 192 A.3d at 933. The ex-wife continued to visit F until the father restricted
visitation. See id. at 567, 192 A.3d at 933. Eventually, the ex-wife filed for a limited
divorce and, among other things, sought visitation with F. See id. at 567-68, 192 A.3d at
933. Following a trial, the trial court issued an order finding, in pertinent part, that the ex-
wife qualified as a de facto parent of F under the four-factor test adopted in Conover, that
it was in F’s best interest to maintain his relationship with the ex-wife, and that the ex-wife
was entitled to visitation with F. See Kpetigo, 238 Md. App. at 568, 192 A.3d at 933.
Apparently, F’s mother was named as a party, but never appeared and did not participate.
See id. at 565, 192 A.3d at 932. The father appealed. See id. at 568, 192 A.3d at 933.
On appeal, the Court of Special Appeals concluded that “nothing in Conover
suggest[ed] that de facto parenthood is available only to same-sex couples.” Id. at 574,
192 A.3d at 937. The Court of Special Appeals explained that “Conover’s de facto
parenthood test measures the relationship between the putative de facto parent and the
child—a relationship formed with the biological parent’s knowledge and consent—without
reference to the parent’s characteristics or the relationship’s origins.” Id. at 574, 192 A.3d
at 937. The Court of Special Appeals determined that the trial court properly applied
Conover and observed that, at trial, the father had stipulated that the ex-wife satisfied the
first two factors of the four-factor test—that the father had consented to the ex-wife’s
parent-like relationship with F and that the ex-wife and F had lived together in the same
household. See id. at 575-76, 192 A.3d at 938. The Court of Special Appeals concluded
that the trial court properly ruled that the ex-wife met the burden of satisfying the third and
fourth factors for establishing de facto parenthood—she had assumed the obligations of
- 37 - parenthood and had a parent-child bond with F. See id. at 576, 192 A.3d at 938. Although
there were two known biological parents, the case did not concern the issue of whether in
order to satisfy the first factor both parents were required to have consented to the fostering
of a de facto parent relationship.
Forms of Consent in Maryland
The relevant concepts of consent generally fall into two categories—express
consent and implied consent. “Express consent,” otherwise known as “affirmative
consent,” is “[c]onsent that is clearly and unmistakably stated[,]” whereas “implied
consent” is “[c]onsent inferred from one’s conduct rather than from one’s direct
expression.” Express Consent, Black’s Law Dictionary (11th ed. 2019); Implied Consent,
Black’s Law Dictionary (11th ed. 2019). Black’s Law Dictionary provides as a second
definition of “implied consent” that it is “[c]onsent imputed as a result of circumstances
that arise, as when a surgeon removing a gall bladder discovers and removes colon cancer.”
Implied Consent, Black’s Law Dictionary (11th ed. 2019). More basically, “consent”
means “to give assent or approval[,]” “compliance in or approval of what is done or
proposed by another[,]” or “agreement as to action or opinion.” Consent, Merriam-
Webster.com Dictionary, Merriam-Webster, available at https://www.merriam-
webster.com/dictionary/consent [https://perma.cc/EA9H-D788]. And “imply” means “to
express indirectly[,]” “to involve or indicate by inference, association, or necessary
consequence[,]” or “to recognize as existing by inference or necessary consequence
especially on legal or equitable grounds[.]” Imply, Merriam-Webster.com Dictionary,
Merriam-Webster, available at https://www.merriam-webster.com/dictionary/implied
- 38 - [https://perma.cc/9RWQ-A9A7].
By way of background, as to implied consent, the concept is used in several areas,
such as in torts, as a defense to a claim of trespass, and in Fourth Amendment search and
seizure cases. In the context of a claim of trespass—“a tort involving an intentional or
negligent intrusion upon or to the possessory interest in property of another”—the Court
of Special Appeals explained that one element of such a claim is that the plaintiff must
establish nonconsensual interference with a possessory interest in the plaintiff’s property.
Mitchell v. Balt. Sun Co., 164 Md. App. 497, 508, 883 A.2d 1008, 1014 (2005), cert.
denied, 390 Md. 501, 889 A.2d 418 (2006) (cleaned up). Such interference must be without
the plaintiff’s consent and “consent, either expressed or implied, constitutes a complete
defense, so long as the scope of that consent is not exceeded.” Id. at 508, 883 A.2d at 1014-
15 (citation omitted). In Mitchell, id. at 510-11, 883 A.2d at 1016, the Court discussed the
concept of implied consent through custom and stated that “[c]onsent is willingness in fact
for conduct to occur” which “may be manifested by action or inaction and need not be
communicated to the actor.” (Cleaned up). The Court of Special Appeals explained that
“[i]f words or conduct are reasonably understood by another to be intended as consent, they
constitute apparent consent and are as effective as consent in fact.” Id. at 511, 883 A.2d at
1016 (cleaned up). The Court also observed:
In determining whether conduct would be understood by a reasonable person as indicating consent, the customs of the community are to be taken into account. This is true particularly of silence or inaction. Thus if it is the custom in wooded or rural areas to permit the public to go hunting on private land or to fish in private lakes or streams, anyone who goes hunting or fishing may reasonably assume, in the absence of a posted notice or other manifestation to the contrary, that there is the customary consent to his entry
- 39 - upon private land to hunt or fish.
Id. at 511, 883 A.2d at 1016 (cleaned up). In the same case, the Court discussed implied
consent through acquiescence—specifically, the argument that, because an occupant of a
room at a private nursing home answered questions from reporters who were alleged to be
intruding, he impliedly consented to their presence. See id. at 513, 883 A.2d at 1017. The
Court reiterated that to constitute implied or apparent consent, the words or conduct at issue
“must be reasonably understood by another to be intended as consent[,]” and determined
that a reasonable trier of fact could have concluded that the reporters could not have
reasonably believed that the occupant voluntarily responded to their questions or consented
to their presence in his room. Id. at 516, 883 A.2d at 1019. As such, the Court determined
that there was a dispute of material fact as to whether the occupant consented to the
interview. See id. at 517, 883 A.2d at 1019.
In addition, the Court concluded that, viewing the facts in the light most favorable
to the occupant, it was not persuaded that a nurse had either expressly or impliedly
consented to the reporter’s presence in the room. The Court stated that it was not persuaded
that the nurse’s “silence and thankful farewell could reasonably be construed to constitute
implied consent in the face of the [occupant]’s explicit directions for the reporters to leave
his room.” Id. at 517, 883 A.2d at 1020.
In the criminal law context, the Fourth Amendment prohibits warrantless searches
and seizures, but it is well established that consent to a search or seizure is a recognized
exception to warrant requirement. See Jones v. State, 407 Md. 33, 51, 962 A.2d 393, 402-
03 (2008). This Court has stated that “[a] search conducted pursuant to valid consent, i.e.,
- 40 - voluntary and with actual or apparent authority to do so, is a recognized exception to the
warrant requirement.” Id. at 51, 962 A.2d at 403 (cleaned up). Where the State alleges
that consent to a search or seizure was given, the State must prove that such “consent was
freely and voluntarily given[,]” which “is a question of fact, to be decided based upon a
consideration of the totality of the circumstances.” Id. at 51-52, 962 A.2d at 403 (cleaned
up). Consent to search “may be express, by words, but also may be implied, by conduct or
gesture.” Turner v. State, 133 Md. App. 192, 207, 754 A.2d 1074, 1082 (2000) (citation
omitted). In Turner, id. at 207-08, 754 A.2d at 1082-83, the Court of Special Appeals
elaborated that, in cases where consent was determined to have been given,
the police made it known, either expressly or impliedly, that they wished to enter the defendant’s house, or to conduct a search, and within that context, the conduct from which consent was inferred gained meaning as an unambiguous gesture of invitation or cooperation or as an affirmative act to make the premises accessible for entry. By contrast, in those Fourth Circuit cases in which the court concluded that the facts could not support a finding of implied consent, the law enforcement officers either did not ask for permission to enter or search, and thus did not make known their objective, or, if they did, their request was met with no response or one that was nonspecific and ambiguous.
Finally, we observe that, in the context of federal bankruptcy law, in Wellness Int’l
Network, Ltd. v. Sharif, 575 U.S. 665, 669, 683 (2015), the Supreme Court held that Article
III of the Constitution of the United States “is not violated when the parties knowingly and
voluntarily consent to adjudication by a bankruptcy judge” of Stern claims.16 Typically,
16 In Wellness, 575 U.S. at 673, the Supreme Court explained that, in Stern v. Marshall, 564 U.S. 462 (2011), it “held that Article III prevents bankruptcy courts from entering final judgment on claims that seek only to augment the bankruptcy estate and would otherwise exist without regard to any bankruptcy proceeding.” (Cleaned up).
- 41 - Stern claims would be adjudicated by a judge of an Article III court, but the Supreme Court
concluded that bankruptcy litigants may waive the right to Article III adjudication of Stern
claims. See Wellness, 575 U.S. at 679. The Supreme Court concluded that “[n]othing in
the Constitution requires that consent to adjudication by a bankruptcy court be express”
and that nothing in the relevant statute requires express consent either. The Supreme Court
stated that the relevant statute requires only that a bankruptcy court obtain the consent “of
all parties to a proceeding before hearing and determining a non-core claim.” Id. at 684
(cleaned up). The Supreme Court also discussed a prior case, Roell v. Withrow, 538 U.S.
580 (2003), concerning interpretation of a different statute, “which authorizes magistrate
judges to conduct any or all proceedings in a jury or nonjury civil matter and order the
entry of judgment in the case, with the consent of the parties[,]” and in which the Court
held that the consent need not be express as “the Article III right is substantially honored
by permitting waiver based on actions rather than words.” Wellness, 575 U.S. at 684
(cleaned up). The Supreme Court determined that the implied consent standard set forth
in in Roell provided “the appropriate rule for adjudications by bankruptcy courts[.]” Id.
The Supreme Court emphasized, though, “that a litigant’s consent—whether express or
implied—must still be knowing and voluntary.” Id. at 685. To that end, according to the
Supreme Court “the key inquiry is whether the litigant or counsel was made aware of the
need for consent and the right to refuse it, and still voluntarily appeared to try the case
before the non-Article III adjudicator.” Id. (cleaned up).
Relevant De Facto Parenthood Case Law from Other Jurisdictions
Intermediate appellate courts in New Jersey and Washington, states that have or had
- 42 - adopted the four-factor test from H.S.H.-K. for establishment of de facto parenthood,17
have considered whether the first factor requires the consent of both legal parents where
there are two existing parents and have reached different results. Prior to the legislature in
Washington enacting a statute,18 in In re Parentage of J.B.R., 336 P.3d 648, 649-50 (Wash.
Ct. App. 2014), the Court of Appeals of Washington considered whether de facto
parenthood could extend to a stepparent of a child who had two legal parents and held that
de facto parenthood “may be so extended if the stepparent petitioner establishes the
17 See V.C. v. M.J.B., 748 A.2d 539, 551-53 (N.J.), cert. denied, 531 U.S. 926 (2000); In re Parentage of L.B., 122 P.3d 161, 176-77 (Wash. 2005) (en banc), cert. denied sub. nom. Britain v. Carvin, 547 U.S. 1143 (2006). 18 See Wash. Rev. Code Ann. § 26.26A.440(4) (2019). Among other factors, the statute provides that an individual who claims to be a de facto parent of a child must demonstrate by a preponderance of the evidence that “[a]nother parent of the child fostered or supported the bonded and dependent relationship required under (e) of this subsection[.]” Id. at § 26.26A.440(4)(f). In a recent case in which the Court of Appeals of Washington addressed several issues under the new statute including whether a stepparent had alleged sufficient facts in a de facto parentage petition, the Court commented that the only requirement under Wash. Rev. Code Ann. § 26.26A.440(4)(f) is “that one parent – ‘another parent’ – support the petitioner’s relationship with the child.” Matter of L.J.M., 476 P.3d 636, 644 (Wash. Ct. App. 2020) (cleaned up). In a footnote, the Court observed that “[t]he court in J.B.R. analyzed under the common law whether both biological parents fostered and supported the petitioner’s relationship with the child. But [Wash. Rev. Code Ann. §] 26.26A.440(4)(f) clearly refers to ‘another parent,’ not both parents.” Id. at 644 n.4 (cleaned up). In L.J.M., id. at 645, the Court remanded the stepparent’s de facto parentage petition for a full adjudication. The Court concluded “that whether one parent’s support of the petitioner’s relationship with the child comes at the expense of the other genetic parent is not relevant to the ‘parental support’ requirement under [Wash. Rev. Code Ann. §] 26.26A.440(4)(f). The trial court erred in suggesting otherwise.” L.J.M., 476 P.3d at 645; see also Matter of Custody of SA-M, ___ P.3d ___, 2021 WL 2431598, *5 (Wash. Ct. App. June 15, 2021). Despite subsequent changes in Washington law establishing a different test, in J.B.R., the Court of Appeals of Washington necessarily interpreted the four factors of the H.S.H.-K. test for establishment of de facto parenthood, the same factors that were adopted by this Court in Conover and that are before us in this case.
- 43 - relevant four factors, which include establishing that both legal parents consented to the
stepparent being a parent to the child.” (Emphasis in original). In that case, J.B.R. was
born to Lacey Shows-Re and James Candler, who ended their relationship when J.B.R. was
an infant. See id. at 650. When J.B.R. was about two years old, Candler stopped visiting
her and then had no contact with his daughter for over the next ten years. See id. Also,
when J.B.R. was about two years old, Shows-Re entered into a relationship with Nathanial
York, who treated J.B.R. as his own child. See id. J.B.R. referred to York as her father
and Shows-Re encouraged the relationship between the two. See id. Shows-Re and York
had a child, N.A.Y., while together. See id. Four years after beginning their relationship,
Shows-Re and York ended it. See id. York sporadically visited N.A.Y. and J.B.R. for
about two years, but then visitation became more regular. See id. Four years later, a regular
visitation schedule was set with N.A.Y. and Shows-Re allowed J.B.R. to accompany
N.A.Y. on most of the visits. See id.
After a disagreement about visitation, York filed a petition to establish himself as a
de facto parent of J.B.R., who was eleven years old at the time. See id. The trial court
entered a temporary parenting plan for J.B.R. and the following month Candler responded
to the de facto parent petition and filed a counterclaim for visitation. See id. The trial court
appointed a guardian ad litem (GAL) to investigate whether J.B.R. would benefit from
continuing the parent-child relationship with York, who recommended that York be
declared J.B.R.’s de facto parent given the close relationship between the two. See id.
Among other things, the GAL found that York had a ten-year relationship with J.B.R. and
that Candler had no contact with J.B.R. until the de facto parent petition was filed. See id.
- 44 - Shows-Re moved to dismiss the de facto parent petition and the trial court denied the
motion. See id. at 650-51. The trial court specifically “found that J.B.R. did not have two
existing, fit parents in her life at the time that [] York was introduced into [her] life.” Id.
at 651. The trial court concluded that York had “made a prima facie showing of de facto
parentage to defeat [] Shows-Re’s motion” and Shows-Re appealed. Id.
On appeal, Shows-Re contended that de facto parenthood “is available only when a
child does not have two legal parents whose roles are already established under
[Washington’s] statutory scheme” and that, because J.B.R. has two biological parents,
York and the trial court could not “carve out a space for a third parent without eroding the
rights of the other two.” Id. at 653. The Court of Appeals rejected that argument,
determining based on Washington case law that “[t]he fact that J.B.R. has two living
biological parents does not prohibit [] York from petitioning for de facto parentage.” Id.
The Court observed that, in a prior case, the Supreme Court of Washington had concluded
that “[t]he long-absent biological father’s emergence into [the child]’s life at the time of
the petition did not prohibit application of the” de facto parent doctrine. Id.
The Court turned to the four factors for establishment of de facto parenthood and
concluded that York had clearly set forth a prima facie case for the second, third, and fourth
factors. See id. As to the first factor—whether “the natural or legal parent consented to
and fostered the parent-like relationship”— the Court stated that it was undisputed that
Shows-Re consented to and fostered the formation of a parent-child relationship between
York and J.B.R. Id. The Court determined that York entered J.B.R.’s life while she was
young and filled a role left vacant by her absent biological father, Candler. Id. The Court
- 45 - stated that Candler’s choice to not support J.B.R. or even to seek to have a relationship
with her for over a decade demonstrated “his consent for [] York to establish a parent-child
relationship with J.B.R.” Id. The Court observed that Candler’s complete non-
involvement in J.B.R.’s life for over a decade “fostered th[e] relationship, as J.B.R. did not
have an alternative person acting as a father figure.” Id. The Court stated: “If [] York
undertook an unequivocal and permanent parental role with the consent of all existing
parents but does not have a statutorily protected relationship, justice prompts us to apply
the de facto parent test. This adequately balances the rights of biological parents, children,
and other parties.” Id. (cleaned up).
By contrast, in K.A.F. v. D.L.M., 96 A.3d 975, 983 (N.J. Super. Ct. App. Div. 2014),
the Appellate Division of the Superior Court of New Jersey concluded that the first factor
of the H.S.H.-K. test requires the consent of only one legal custodial parent. In that case,
K.A.F. and F.D. entered into a relationship and a few years later, a child, Arthur, was
conceived by K.A.F. through artificial insemination. See id. at 977. F.D. adopted Arthur.
See id. Later, K.A.F. and F.D. ended their relationship and K.A.F. entered into a
relationship with D.M.,19 a mutual friend of K.A.F. and F.D. See id. at 977-78. K.A.F.
apparently consented to and fostered the formation of a parent-like relationship between
D.M. and Arthur, although F.D. opposed the relationship at all times. See id. at 978.
K.A.F. and D.M. eventually ended their relationship and D.M. sought custody of and
visitation with Arthur. See id. Both K.A.F. and F.D., the legal parents, opposed custody
19 In K.A.F., 96 A.3d at 977, the Appellate Division of the Superior Court of New Jersey referred to D.L.M. as “D.M.”
- 46 - and visitation by D.M. See id. The trial court dismissed D.M.’s claim based on F.D.’s
opposition to the parent-like relationship between D.M. and Arthur, ruling that “where
there are two fit and involved parents, both must have consented to the creation of a
psychological parent relationship before a third party can maintain an action for visitation
and custody based on the existence of that relationship.” Id.
The intermediate appellate court disagreed, determining that it “fail[ed] to perceive
any basis for th[e] argument either in the law or the policies underlying the concept of a
psychological parent.” Id. at 979. The Court explained that, where a third party seeks
custody, a trial court must conduct a two-step analysis—first, to determine whether the
presumption in favor of the legal parent is overcome by either a showing of unfitness or
exceptional circumstances and then two, if the presumption has been rebutted, to determine
whether awarding custody or other relief to the third party would promote the best interests
of the child. See id. at 981. The Court indicated that psychological parent cases (i.e., de
facto parent cases) are “a subset of ‘exceptional circumstances’ cases.” Id. at 980 (cleaned
up). The Court stated that “it would be difficult to ignore the ‘psychological harm’ a child
might suffer because he is deprived of the care of a psychological parent simply because
only one of his ‘legal parents’ consented to the relationship.” Id. at 981.
The Court explained that the clear policy underlying cases from the Supreme Court
of New Jersey “is that ‘exceptional circumstances’ may require recognition of custodial or
visitation rights of a third party with respect to a child where the third party has performed
parental duties at home for the child, with the consent of a legal parent, however expressed,
for such a length of time that a parent-child bond has developed, and terminating that bond
- 47 - may cause serious psychological harm to the child.” Id. at 981-82 (cleaned up). The Court
stated that it was “fatuous to suggest that this fundamental policy may be subverted, and
that a court may not even examine the issue at a plenary hearing, where one of the child’s
legal parents colorably claims lack of consent, in circumstances where the other legal
parent has consented.” Id. at 982.
The Court also found significant the wording of the first factor of the test as well as
the Supreme Court of New Jersey’s discussion of the test, stating:
The Court’s continual reference to “a” legal parent or “the” legal parent in the singular strengthens our conclusion that the consent of both legal parents is not required to create a psychological parent relationship between their child and a third party.
Nothing in the historical development of the psychological parent policy, in the policy itself, or in the language of the Court, therefore, suggests that both legal parents must consent before a court may consider a claim of psychological parenthood by a third party. Rather, it is sufficient if only one of the legal custodial parents has consented to the parental role of the third party. In that circumstance, a legal custodial parent has voluntarily created the relationship and thus has permitted the third party to enter the zone of privacy between her and her child.
K.A.F., 96 A.3d at 982-83.
The Court nonetheless stated that, in so holding, it was “not discount[ing] the
importance of F.D.’s ‘consent’, or lack thereof[.]” Id. at 983. Referring to F.D.’s consent,
the Court stated that “[i]t may be used by a trial court, in an appropriate context, as one
factor among many in determining whether a third party has established that he or she is a
psychological parent of a child, and, if so, whether the best interests of the child warrant
some form of custody or visitation.” Id. (cleaned up). The Court noted “that in most cases,
the longer and more established the parental role of a third party has become, the lack of
- 48 - consent by one legal parent would diminish in analytical significance.” Id.20
Analysis
After careful review of the matter, we hold that, under the first factor of the H.S.H.-
K. test adopted by this Court in Conover for establishment of de facto parenthood, where
there are two legal (biological or adoptive) parents, a prospective de facto parent must
demonstrate that both legal parents consented to and fostered such a relationship or that a
non-consenting legal parent is unfit or exceptional circumstances exist. In this case, it is
clear that, although D.D. may have consented to and fostered T.R.’s formation and
establishment of a parent-like relationship with G.D. and B.D., E.N. has not expressly or
impliedly consented to and fostered the relationship between her children and T.R. In
addition, T.R. did not establish that E.N. was an unfit parent or that exceptional
circumstances existed such that T.R. would have standing to seek custody of the children.
Although T.R. may have satisfied the second, third, and fourth factors of the H.S.H.-K.
test, she failed to satisfy the first factor and the circuit court erred in concluding that T.R.
was a de facto parent to the children and in granting her joint legal custody and sole
physical custody. As such, we reverse the judgment of the Court of Special Appeals, which
affirmed the circuit court’s judgment.
The issue in this case was not presented in Conover, as in that case, the child had
only one legal parent—Brittany, the biological mother. See Conover, 450 Md. at 55, 146
Because the trial court had dismissed D.M.’s complaint on a motion for summary 20
judgment, the Court remanded the case for a plenary hearing on whether D.M. was the psychological parent of Arthur and, if so, whether the best interests of Arthur required custody, visitation, or other relief. See K.A.F., 96 A.3d at 985.
- 49 - A.3d at 435. Nor was the issue presented in Kpetigo, where, although the child had two
biological parents and apparently the child’s mother never appeared before the trial court
or otherwise participated in court proceedings, no issue was raised as to whether the
consent and fostering of the ex-wife’s (the de facto parent’s) formation of a parent-like
relationship with the child required the consent of both the mother and the father and no
review by this Court was sought. See Kpetigo, 238 Md. App. at 566, 192 A.3d at 932. As
such, this case presents the first occasion on which this Court must address application of
the first factor of the four-factor test adopted in Conover to circumstances where a child
has two existing legal parents.
It is well recognized that a parent has a fundamental right, protected by the
Fourteenth Amendment of the United States Constitution, to direct and govern the care,
custody, and control of the parent’s children. See Conover, 450 Md. at 60, 146 A.3d at
438; In re Yve S., 373 Md. at 565, 819 A.2d at 1038. Significantly, there exists a well-
established presumption that a child’s best interests are served by maintaining parental
rights, such that even the Supreme Court has accepted the presumption that parents act in
the best interests of their children. See In re Yve S., 373 Md. at 571-72, 819 A.2d at 1042.
Put plainly, there is a fundamental constitutional right to parent one’s children and a
presumption in favor of a parent having the right to raise his or her own children.
In cases not involving de facto parents, i.e., cases involving third parties seeking
custody or visitation, this Court has repeatedly concluded that to award custody or
visitation to the third party, the third party must show that the parents are unfit or that
exceptional circumstances exist, before a trial court can apply the best interests of the child
- 50 - standard. See Conover, 450 Md. at 61, 146 A.3d at 438; Burak, 455 Md. at 624, 168 A.3d
at 918. And, in cases where there are two legal parents in a custody dispute, one of the key
considerations in awarding or not awarding joint legal custody is whether the parents can
communicate and make meaningful decisions together about the child. See, e.g., Santo v.
Santo, 448 Md. 620, 628, 630, 141 A.3d 74, 78, 79 (2016) (Although not the dispositive
factor, “effective parental communication is weighty in a joint legal custody situation
because, under such circumstances, parents are charged with making important decisions
together that affect a child’s future.”). With these principles in mind, we conclude that to
declare the existence of a de facto parentship based on the consent of only one parent and
ignore whether a second legal parent has consented to and fostered the establishment of a
parent-like relationship, or is a fit parent or whether exceptional circumstances exist
undermines and, essentially, negates that parent’s constitutional right to the care, custody,
and control of the parent’s children. Moreover, completely disregarding whether both legal
parents have consented to and fostered a prospective de facto parent’s parent-like
relationship with a child, or that a parent is otherwise unfit or exceptional circumstances
exist, not only runs afoul of a parent’s constitutional rights, but also basic family law
principles.21
21 Moreover, in determining whether to award joint custody to two parents, one of the factors a trial court is to consider, in addition to the capacity of the parents to communicate and reach shared decisions affecting the child’s welfare, is the fitness of the parents. See Taylor v. Taylor, 306 Md. 290, 304, 308, 508 A.2d 964, 971, 973 (1986). Indeed, we have stated that “[t]he psychological and physical capabilities of both parents must be considered, although the determination may vary depending upon whether a parent is being evaluated for fitness for legal custody or for physical custody. A parent may be
- 51 - It is without doubt that the best interest of the child standard governs all
determinations with respect to children. See, e.g., Conover, 450 Md. at 60, 146 A.3d at
438 (“The primary goal of access determinations in Maryland is to serve the best interests
of the child[.]” (Cleaned up)). “[I]n any child custody case, the paramount concern is the
best interest of the child.” Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964, 970 (1986).
Indeed, “[t]he best interest of the child is [] not considered as one of many factors, but as
the objective to which virtually all other factors speak.” Id. at 303, 508 A.2d at 970. With
our holding, a determination in keeping with the best interest of the child is ensured by
permitting de facto parenthood to be established either through the consent of both legal
parents or a showing of unfitness or exceptional circumstances. Because exceptional
circumstances may be demonstrated even in the presence of two fit legal parents, where
the consent of one parent is absent, a trial court will necessarily be in a position to review
the facts and circumstances that are unique to each case and make a determination as to a
prospective de facto parent’s standing.
Although Conover rightly recognized de facto parenthood in Maryland, the holding
in the case is not without its limitations. To the extent that, in Conover, 450 Md. at 85, 146
A.3d at 453, this Court held that parental unfitness or exceptional circumstances were not
required to establish de facto parenthood before a trial court could apply a best interest of
fit for one type of custody but not the other, or neither, or both.” Id. at 308, 508 A.2d at 973. Thus, even where there are two legal parents, let alone a de facto parent, before a trial court determines joint or sole custody, the court considers whether one of the parents is unfit. As such, logic dictates that courts should not allow de facto parenthood to be created without the consent of both legal parents, a determination of unfitness, or exceptional circumstances.
- 52 - the child analysis, the holding obviously was rendered against the backdrop of a child with
only one legal parent (a biological mother) who would have been required to consent to
and foster a relationship with the de facto parent. When using the H.S.H.-K. test, where a
child has only one legal parent, it is not necessary to find that the existing legal parent is
unfit or that exceptional circumstances exist because, if the existing parent’s conduct shows
that the parent fostered and consented to the formation of the putative de facto parent’s
relationship with the child, nothing more need be shown with respect to the parent. The
circumstances are clearly different where a child has two existing legal parents with equal
constitutional parental rights.
In light of the fundamental rights at stake and important principles expressed in our
case law, we are compelled to hold that, for the well-being of children and family
relationships in Maryland, before establishing de facto parenthood where there are two
existing legal parents, both parents must be shown to have consented to a third party’s
formation of a parent-like relationship with a child or, in the alternative, that one or both
parents are unfit or exceptional circumstances exist. A parent has a fundamental
constitutional right to raise and care for the parent’s child and where there are two legal
parents, one parent’s knowing participation in the formation of a third party’s de facto
parent relationship with a child cannot suffice to serve as the consent of the second parent.
Endorsing a holding that would permit de facto parenthood to be established with the
consent of only one parent where there are two legal parents would intrude upon the second
parent’s constitutional rights, be inconsistent with our case law concerning parental
custody (case law holding that third party intervention for custody requires a showing of
- 53 - unfitness or exceptional circumstances), and would potentially create circumstances that
are untenable for all involved.
Before going further, we pause to address one aspect of the Court of Special
Appeals’s opinion in this case concerning its view of the majority and concurring opinions
in Conover. See E.N., 247 Md. App. at 246 & n.10, 236 A.3d at 677 & n.10. In affirming
the judgment of the circuit court, the Court of Special Appeals stated:
We recognize that an interpretation of a majority opinion by a concurring (or dissenting) member of a court is not binding because a majority of the court has not placed its imprimatur on that interpretation. We also recognize that [the] concurring opinion was likely circulated to the entire Court prior to publication. That the Majority did not respond to [the concurring opinion]’s specific and substantive concerns provides us at least some evidence that the Court of Appeals did not disagree with [the concurring opinion’s] interpretation of the majority opinion. Indeed, it is not uncommon for the Court of Appeals’s majority opinion to respond to issues raised in concurring and dissenting opinions.
Id. at 246, 236 A.3d at 677. It appears that the Court of Special Appeals concluded that,
because the majority opinion in Conover did not comment on the concern expressed in the
concurring opinion—that where there are two legal parents, the consent of both legal
parents should be required—the majority in Conover did not disagree with the concurring
opinion’s interpretation of its opinion and the majority’s silence foreshadowed that a
majority of the Court would conclude in this case that only one parent’s consent is needed
where there are two existing parents.
From our perspective, that a majority opinion of an appellate court may not
comment on or respond to a concurring or dissenting opinion may not necessarily be an
indication of how a majority of a Court would hold when an issue that is discussed or raised
- 54 - in a concurring or dissenting opinion is before the Court. There may be any number of
instances in which a majority opinion of an appellate court does not comment on a
concurring or dissenting opinion. As but one example, on the matter of inconsistent
verdicts, in Price v. State, 405 Md. 10, 29, 949 A.2d 619, 630 (2008), this Court overruled
prior case law—in which we held that a guilty verdict and a not-guilty verdict could be
legally inconsistent where a jury tries the defendant—and held that “inconsistent verdicts
shall no longer be allowed.” In a concurring opinion, the Honorable Glenn T. Harrell wrote
separately “to note explicitly that the Majority’s holding applies only to ‘legally
inconsistent’ verdicts, not ‘factually inconsistent’ verdicts” in criminal cases. Id. at 35,
949 A.2d at 634 (Harrell, J., concurring). In addition, the concurring opinion set forth a
procedure to be followed in challenging legally inconsistent verdicts at trial. See id. at 40,
949 A.2d at 637 (Harrell, J., concurring). The majority opinion in Price did not comment
on the procedure suggested by the concurring opinion or otherwise clarify or expressly
recognize that its holding applied only to legally inconsistent verdicts, not factually
inconsistent verdicts, as the concurring opinion stated it did.
Yet, a few years later, in McNeal v. State, 426 Md. 455, 459, 44 A.3d 982, 984
(2012), this Court adopted the view expressed by the concurring opinion in Price, stating:
“[W]e adopt as our holding here the thrust of the concurring opinion in Price, that jury
verdicts which are illogical or factually inconsistent are permitted in criminal trials for
reasons we shall explain.” The circumstance that the majority opinion in Price did not
comment on the view expressed in the concurring opinion was of no moment. The same
rationale applies in this case with respect to the majority and concurring opinions in
- 55 - Conover. A majority opinion’s silence as to the views or concerns expressed in a
concurring opinion, or a dissenting opinion for that matter, should not be interpreted as
indicative of how the Court would hold when an issue discussed by the concurring or
dissenting opinion is later before the Court.
Returning to the matter at hand, although Conover involved only one parent, the
rationale underlying our holding in the case supports the conclusion that where there are
two legal parents the consent of both parents is necessary to establish de facto parenthood.
In Conover, 450 Md. at 74, 146 A.3d at 447, this Court recognized that de facto parenthood
“cannot be achieved without knowing participation by the biological parent.” (Citations
omitted). We observed that, in V.C. v. M.J.B., 748 A.2d 539, 552 (N.J. 2000), the Supreme
Court of New Jersey stated that the first factor of the H.S.H.-K. test “is critical because it
makes the biological or adoptive parent a participant in the creation of the [de facto]
parent’s relationship with the child.” Conover, 450 Md. at 74, 146 A.3d at 447 (cleaned
up). Additionally, we recognized that, in Marquez v. Caudill, 656 S.E.2d 737, 744 (S.C.
2008), the Supreme Court of South Carolina concluded that the first factor is not only
critical because it makes a legal parent a participant in the creation of the de facto parent’s
relationship with the child, but also because it “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.” Conover, 450 Md. at 75, 146 A.3d at 447 (cleaned
Read to its logical conclusion, to satisfy the first factor, where there are two legal
- 56 - parents, both parents must knowingly participate in consenting to and fostering the third
party’s formation of a parent-like relationship with a child. Otherwise, we create the
incomprehensible situation in which a de facto parentship may be created by the knowing
participation of only one legal parent while an equally fit legal parent is denied the same
knowing participation in the process and denied the meaningful input that we deemed so
critical for a parent to have in creating de facto parent status for a third party.
That said, we recognize and hold that a legal parent’s actual knowledge of and
participation in the formation of a third party’s parent-like relationship with a child may
occur either through the parent’s express or implied consent to and fostering of the
relationship. There is no case law or authority that requires that the consent necessary to
satisfy the first factor of the de facto parent test be express. Rather, we conclude that so
long as the consent is knowing and voluntary and would be understood by a reasonable
person as indicating consent to the formation of a parent-like relationship between a third
party and a child, the first factor of the de facto parent test may be satisfied by a legal
parent’s express or implied consent. As we stated in Conover, 450 Md. at 74, 748 A.2d at
447, de facto parenthood requires the knowing participation of the legal parent. Requiring
that the necessary consent be knowing and voluntary imposes no greater burden on either
legal parent than already exists under the first factor of the de facto parent test. Rather, our
holding clarifies that the consent of both legal parents is required and that such consent
may be express or implied.
A review of the concept of implied consent and its application in Maryland
demonstrates that the existence of implied consent is to be determined based on the
- 57 - circumstances of a particular case and, while such consent may be inferred by a party’s
conduct, implied consent must nonetheless be knowing and voluntary and must be shown
by conduct that would be understood by a reasonable person as indicating consent. See,
e.g., Wellness, 575 U.S. at 685; Jones, 407 Md. at 51-52, 962 A.2d at 403; Turner, 133 Md.
App. at 207, 754 A.2d at 1082; Mitchell, 164 Md. App. at 510-11, 516, 883 A.2d at 1016,
1019. With respect to de facto parenthood, implied consent may be inferred from a legal
parent’s conduct. Implied consent may be shown through action or inaction, so long as the
action or inaction is knowing and voluntary and is reasonably understood to be intended as
that parent’s consent to and fostering of the third party’s formation of a parent-like
relationship with the child. Cf. Mitchell, 164 Md. App. at 511, 883 A.2d at 1016. The
inaction required to establish implied consent would necessarily involve inaction in the
face of information sufficient to inform a legal parent that the other parent had consented
to and fostered the formation of a parent-like relationship between a known third party and
the legal parent’s child, with the legal parent failing to act in any way to object to the
formation of such a relationship. In other words, implied consent by inaction would consist
of the legal parent having sufficient information concerning the fostering of a parent-like
relationship between a third party and the parent’s child and the parent knowingly and
voluntarily not objecting. As such, an inquiry into whether a legal parent impliedly
consented to and fostered a potential de facto parent’s formation of a parent-like
relationship with a child is a fact-specific inquiry to be determined on a case-by-case
- 58 - basis.22
Applying these principles to the circumstances of this case, we conclude that in the
absence of E.N.’s consent either express or implied to the formation of a parent-like
relationship between T.R. and her children, the first factor of the H.S.H.-K. test has not
been satisfied. We consider the first factor of the test as it applies to each parent. At the
risk of restating what is already known, G.D. and B.D., the minor children, have two
22 Additionally, it stands to reason that, for purposes of de facto parenthood, where a second legal parent has not consented either expressly or impliedly to a third party’s formation of a parent-like relationship with a child, as with establishing third party standing to seek custody in general, a parent’s knowing and voluntary abandonment of the child may be an exceptional circumstance. As the Court of Special Appeals recently recognized in a custody case, “[a]bandonment is a most serious allegation.” Gizzo v. Gerstman, 245 Md. App. 168, 204, 226 A.3d 372, 394 (2020) (citations omitted). Indeed, in Burak, 455 Md. at 648, 168 A.3d at 932, this Court explained that one factor a trial court may consider in determining whether a parent is unfit is whether the parent has abandoned the child. To that end, as the Court of Special Appeals stated in Gizzo, 245 Md. App. at 204, 226 A.3d at 394, in Wakefield v. Little Light, 276 Md. 333, 351, 347 A.2d 228, 238 (1975), in a related context, this Court defined child abandonment as “[a]ny wilful and intentional conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child, and to renounce and forsake the child entirely.” (Quoting Logan v. Coup, 238 Md. 253, 258, 208 A.2d 694, 697 (1965)). Put plainly, where a parent’s actions may “be construed to evince a settled purpose to relinquish all parental claims to” a child, Wakefield, 276 Md. at 351-52, 347 A.2d at 238, i.e., abandoning that child, such abandonment may demonstrate an exceptional circumstance sufficient to permit a trial court to determine de facto parentship. In Logan, 238 Md. at 258, 208 A.2d at 697, we stated that the terms “voluntary relinquishment” and “abandonment,” as used in the statute at issue in that case, were essentially synonymous, with only “a fine, but rather slight, distinction between the proper use of the words” being that “‘abandon’ implies a final and complete relinquishment of something, as because of weariness, discouragement, etc., and ‘relinquish’ signifies a giving up of something desirable, and connotes force of necessity or compulsion.” However, the statute’s use of the adjective “voluntary” modifying the word “relinquishment” demonstrated “that the connotation of compulsion [was] removed, and the difference, if any, between ‘voluntary relinquishment’ and ‘abandonment’ was minuscule.” Id. at 258, 208 A.2d at 697.
- 59 - existing biological parents—E.N. and D.D. As to D.D., the record establishes that D.D.
did not expressly seek de facto parenthood status for T.R. The record reveals that D.D.
sought for T.R. to have custody of the children via legal guardianship—an arrangement
that requires the consent of both parents—while he was incarcerated in federal prison for
drug offenses. In a letter that T.R. presented to the circuit court when seeking custody,
D.D. wrote one sentence, stating that he “grant[ed] full custody” to T.R. of the children
“for legal guardianship while I’m incarcerated.”23 Although D.D. participated in the trial
as a witness via telephone and testified about T.R.’s relationship with the children, he did
not expressly request that T.R. be made a de facto parent.24
At bottom, the circumstances of this case are not ones in which one legal parent
explicitly sought de facto parenthood for a third party. Nonetheless, in this case,
irrespective of whether D.D. actually sought de facto parenthood or legal guardianship for
T.R. or whether he knew that T.R. would seek de facto parent status, we agree that, insofar
as D.D. is concerned, T.R. satisfied the first factor H.S.H.-K. test by demonstrating that
D.D.’s conduct met the requirement that he consent to and foster her formation and
establishment of a parent-like relationship with the children. The first factor of the H.S.H.-
K. test does not require that the legal parent(s) seek de facto parenthood on behalf of a
23 At oral argument, when asked whether D.D.’s letter requested custody for legal guardianship and not for de facto parenthood, T.R.’s counsel was reluctant to answer the question. Ultimately, T.R.’s counsel agreed that, if it were a question of legal guardianship, the consent of both parents was required. The record plainly reflects that in his letter D.D. sought only for T.R. to have legal guardianship. 24 Likewise, in the initial complaint, T.R. sought custody of the children, but did not request that she be declared a de facto parent.
- 60 - prospective de facto parent. Rather, the first factor requires that the legal parent consented
to and fostered, the prospective de facto parent’s formation and establishment of a parent-
like relationship with the child. In other words, under the first factor of the H.S.H.-K. test
the legal parent who fostered the third party’s parent-like relationship with a child may
oppose the granting of de facto parenthood for the third party but a court may nonetheless
grant the third party’s request if all of the factors of the test are satisfied, including, where
there are two legal parents, the consent of both parents. As such, were D.D. the only legal
parent of the children, the analysis of the first factor of the H.S.H.-K. test would be
complete.
In this case, however, it is undisputed that the circuit court found that E.N. did not
expressly or impliedly consent to or foster T.R.’s parent-like relationship with the
children.25 The circuit court found that, although E.N. knew that D.D. had a “romantic
partner,” E.N. did not “positively identify” her, know her, or even meet her until November
2017. Referring to the time period between June 2015 and November 2017, the circuit
court found that “there was evidence that [E.N.] attempted to locate her children a few
times and bring them home[.]” During the time period that the children lived with D.D.
and T.R., E.N. visited the children on at least one occasion when she took the children out
to dinner with their grandparents. Moreover, the circuit court determined that this case did
not involve a voluntary abandonment or surrender of the children on either parent’s part.
25 In this case, however, the circuit court determined that implied consent does not satisfy the burden under the first factor and rather that consent needs to be express and explicit. We disagree, as explained above.
- 61 - The circuit court explicitly found that it was undisputed that both parents were fit as “there
was no evidence to the contrary presented through the five days of trial.” The circuit court
based these factual findings on the evidence adduced at trial and we see no basis on which
to determine that the circuit court’s findings of fact are clearly erroneous.26
We conclude that the record demonstrates, as the circuit court found, that E.N. did
not impliedly consent to and foster T.R.’s formation of a parent-like relationship with the
children. E.N. did not leave her children for a long period of time in the care of a third
party, but instead gave permission for the children to live with D.D., the other legal parent,
their biological father, which is not an uncommon occurrence among parents who live
separately. E.N. did not object to the children moving in with D.D., but that lack of
objection did not extend to a lack of objection to the children forming a parental
relationship with T.R., a person whom E.N. lacked knowledge of and her role in the
children’s lives. In addition, the record demonstrates that, after D.D. was convicted in
federal court for drug offenses and incarcerated in federal prison in late 2017, in November
2017, E.N. sought to have her children returned to her.27 Stated otherwise, once D.D. was
26 Given that T.R. did not allege in the complaint the existence of exceptional circumstances and at trial T.R.’s counsel argued that exceptional circumstances need not be found, the circuit court did not address whether exceptional circumstances existed. We are aware that during argument on E.N.’s motion for judgment at the conclusion of the plaintiff’s case, T.R.’s counsel stated that although no showing of exceptional circumstances was required, information from the children showed exceptional circumstances, namely, B.D. indicated that he did not want to “go back to a house with roaches where [he had] to sleep with one cover[.]” Nonetheless, the circuit court did not make a finding as to exceptional circumstances. 27 At trial, D.D. testified that he was indicted in federal court in May 2017, and that he has been incarcerated since he surrendered on the indictment to law enforcement
- 62 - incarcerated again, E.N. did not abdicate all parental responsibility for her children to and
instead sought to have her children returned to her after they were no longer able to live
with their father due to his incarceration.
The circuit court specifically found that although E.N. knew that D.D. had a
romantic partner, E.N. did not know T.R. or meet her until November 2017, and E.N.
lacked knowledge of T.R.’s importance in the children’s lives. The first factor of the test
for establishing de facto parenthood requires that the legal parent consented to and fostered
the petitioner’s formation of a parent-like relationship, i.e., that the legal parent consented
to and fostered the formation of a parent-like relationship between his or her child and the
person seeking de facto parent status, not just that one legal parent had knowledge that the
other legal parent may have embarked on a relationship with someone who spends time
with or lives with a child. See Conover, 450 Md. at 74, 146 A.3d at 447. In this case, the
circuit court’s finding that E.N. did not consent—either expressly or impliedly—to T.R.’s
formation of a parent-like relationship with the children is more than supported by the
evidence developed at trial. Nothing in the record supports a determination that E.N.,
through knowing and voluntary action or inaction, impliedly consented to and fostered
T.R.’s formation of a parent-like relationship with the children.
As discussed above, in J.B.R., 336 P.3d at 649-50, the Court of Appeals of
Washington interpreted the H.S.H.-K. test prior to the enactment of a de facto parent statute
authorities that month. The circuit court found that D.D. was “charged and incarcerated for his second drug related activity in late 2017.” It is undisputed, however, that E.N. attempted to get her children back in November 2017.
- 63 - in the State and concluded that de facto parenthood could extend to a stepparent who
petitions for such status provided that the stepparent established the four factors of the de
facto parent test, including “that both legal parents consented to the stepparent being a
parent to the child[.]” (Emphasis omitted). The circumstances of this case, however, are
different from those in J.B.R., 336 P.3d at 653, in which the Court determined that the
biological father’s choice to not support his daughter or to have a relationship with her for
over a decade demonstrated his consent for a third party to establish a parent-like
relationship with the child and that the father’s complete non-involvement in his child’s
life for over a decade fostered the child’s relationship with the third party. To extent that
the Court in J.B.R. determined that the first factor of the de facto parent test was satisfied
through the implied consent of the biological father, we part ways with the finding insofar
as this case is concerned, as the record amply demonstrates that E.N. did not impliedly
consent to T.R.’s formation of a parent-like relationship with the children and did not
abandon her children.
In K.A.F., 96 A.3d at 982-83, the Appellate Division of the Superior Court of New
Jersey concluded that the first factor of the de facto parent test requires the consent of only
one legal parent and placed weight on the circumstance that the Supreme Court of New
Jersey had used references to a singular “legal parent” or “the legal parent” when discussing
the factor of consent. Nonetheless, in K.A.F., the Appellate Division of the Superior Court
of New Jersey made clear that, in its view, de facto parenthood cases are a subsection of
cases in which exceptional circumstances may exist for allowing a third party standing to
seek custody and that while the de facto parent test required the consent of only one legal
- 64 - parent, the second legal parent’s consent is a factor to be considered. See K.A.F., 96 A.3d
at 980, 983. As such, the holding by the intermediate court in K.A.F. does not stand for
the proposition that in determining de facto parenthood the consent of a second legal parent
is to be entirely ignored. Moreover, the view that there are no policy reasons that require
two legal parents to consent to and foster a person’s parent-like relationship with a child
prior to a court according a person de facto parent status fails to account for the
circumstance that the best interest of a child may often be fostered where two parents are
in agreement on basic issues concerning the care, custody, and upbringing of the child. In
any event, under our holding in this case, such a view is of no consequence because where
one parent may be reluctant to consent or recalcitrant, consent of the second legal parent is
not the only means by which de facto parenthood may be established, i.e., a trial court may
consider the non-consenting parent’s fitness and whether exceptional circumstances
exist.28
Although the first factor of the H.S.H.-K. test as this Court adopted it in Conover
uses the singular (referring to “the biological or adoptive parent”), unlike in K.A.F., we
place no weight on the use of the singular reference. The use of the singular reference “a
28 In addition, we are mindful of the reasoning that requiring only one parent to consent to the formation of a third party’s parent-like relationship with a child should be permissible because the child may have already formed a parent-like relationship with the third party through the consent of one parent. See K.A.F., 96 A.3d at 981-82. This reasoning, however, assumes that the other three factors of the de facto parent test would be or have been met and that it has already been determined that a parent-like relationship exists sufficient to satisfy the requisite factors. In other words, this reasoning is based on the notion that because a de facto parent relationship has been established (which has yet to be determined), it should not be necessary to have the consent of both parents.
- 65 - parent” in adopting the H.S.H.-K. test in Conover, was due to the circumstance that in
Conover only one biological parent existed. Indeed, H.S.H.-K., 533 N.W.2d at 421-22,
involved only one legal parent. In Conover, at bottom, the Court was not confronted with
circumstances involving two existing biological or adoptive parents such that rephrasing
the first factor of the H.S.H.-K. test to account for two parents was necessary.29
In a like vein, we are unpersuaded that the ALI’s definition of a de facto parent, set
forth above, and its use of the singular “a legal parent” mandates a different outcome or
that the definition requires the consent of only one legal parent where two legal parents are
known. As we noted in Conover, 450 Md. at 62 n.6, 146 A.3d at 439 n.6, the ALI defines
a de facto parent in relevant part as someone other than a legal parent or a parent by estoppel
who, for a significant time of not less than two years, lived with the child and “with the
agreement of a legal parent to form a parent-child relationship,” performed caretaking
functions for the child. (Citation omitted).
As the ALI’s definition of de facto parent makes clear, a de facto parent is
distinguishable from a legal parent or parent by estoppel. To be sure, the definition of a
parent by estoppel includes in § 2.03(1)(b)(iii) and (1)(b)(iv) the language “agreement with
the child’s [] parent (or, if there are two legal parents, both parents)[.]” In other words,
29 Also, in Maryland, it is well established that use of the singular includes the plural and vice versa for purposes of construction of statutory provisions and the Maryland Rules. See Md. Code Ann., Gen. Prov. (2014, 2019 Repl. Vol.) § 1-202 (“The singular includes the plural and the plural includes the singular.”); Md. R. 1-201(d) (“Words in the singular include the plural[.]”). That principle may apply with equal force to factors of a test adopted or created by this Court unless the Court’s holding, or reason, were to dictate otherwise.
- 66 - according to the ALI’s definition of a parent by estoppel, under certain circumstances, a
parent by estoppel can be established only by agreement of both legal parents. And, the
ALI’s definition of de facto parent refers simply to “the agreement of a legal parent[.]” Id.
at § 2.03(1)(c)(ii).
Nevertheless, the comments to the ALI’s definitions of parent by estoppel and de
facto parent are instructive. With respect to a parent by estoppel, Comment b to the ALI’s
definitions states that the ALI “treats a parent by estoppel the same as a legal parent” and
that, under § 2.03(1)(b)(iii), “[w]hen there are two legal parents, each parent must agree”
and that such an “[a]greement may be implied from the circumstances.” Id. at § 2.03 cmt.
b. Comment b also states that, under § 2.03(1)(b)(iv), “the agreement of each of the child’s
legal parents” is required and, as with § 2.03(1)(b)(iii), “sometimes the child has only one
legal parent. If the child has two legal parents, both parents must agree.” In other words,
Comment b reaffirms the definitional language of parent by estoppel, as set forth in §
2.03(1)(b)(iii) and § 2.03(1)(b)(iv)—that, where two legal parents exist, both legal parents
must agree to the formation of the relationship.
With respect to a de facto parent, Comment c to the ALI’s definitions states in
relevant part:
The requirements for becoming a de facto parent are strict, to avoid unnecessary and inappropriate intrusion into the relationships between legal parents and their children. The individual must have lived with the child for a significant period of time (not less than two years), and acted in the role of a parent for reasons primarily other than financial compensation. The legal parent or parents must have agreed to the arrangement, or it must have arisen because of a complete failure or inability of any legal parent to perform caretaking functions.
- 67 - Id. at § 2.03 cmt. c. Comment c also provides:
The only circumstance in which a de facto parent may be recognized without the agreement of a legal parent is when there has been a total failure or inability by the legal parent to care for the child. This circumstance exists only when a parent is absent, or virtually absent, from the child’s life, such as when a parent has abandoned the child or has been imprisoned or institutionalized. While some of these circumstances may be considered beyond the control of the legal parent, they function in the same way to permit to develop the kind of long-term, substitute parent-child relationship that this Chapter seeks to recognize.
Id. In other words, although the ALI’s definition of a de facto parent uses the singular “a
legal parent[,]” Comment c concerning the definition of de facto parent readily supports
the conclusion that the ALI requires the agreement of both legal parents, where two legal
parents exist, to a third party’s formation of a de facto parent relationship with a child, with
the limited exception of where there has been a total failure or inability by a legal parent to
care for the child.30 Simply put, the ALI’s definitions of parent by estoppel and de facto
parent and accompanying Comments support our holding that, where two legal parents
exist, under the first factor for establishment of de facto parenthood, both legal parents
must consent to and foster the prospective de facto parent’s formation of a parent-like
relationship with the child. The record in this case is clear that at least one legal parent—
E.N., the children’s biological mother—did not consent to and foster T.R.’s formation of a
30 ALI, Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.04(1) includes a de facto parent as one of the parties with standing to bring an action for a custody determination. Specifically, § 2.04(1)(c) provides that a de facto parent, as defined in § 2.03(1)(c), “who has resided with the child within the six-month period prior to the filing of the action or who has consistently maintained or attempted to maintain the parental relationship since residing with the child” “should be given a right to bring an action . . . and to be notified of and participate as a party in an action filed by another[.]”
- 68 - parent-like relationship with the children. As such, T.R. has not satisfied all four factors
of the test to establish herself as a de facto parent to the children and the circuit court erred
in determining otherwise and in proceeding to analyze the best interests of the children and
awarding custody to T.R.
Finally, we observe that in addition to infringing on a parent’s individual
constitutional right to custody and control of his or her child and being inconsistent with
applicable case law concerning standing for third party custody, there are practical
concerns attendant to judicially creating a de facto parentship without the consent of both
legal parents. Creating a de facto parentship with the consent of only one parent where
there are two fit legal parents and in the absence of exceptional circumstances would result
in circumstances that may be unworkable for the legal parents, the de facto parent, and the
children involved. For instance, “[w]here there are two existing parents, [] 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[,]”
Conover, 450 Md. at 88, 146 A.3d at 455 (Watts, J., concurring), or, as in this case, a fit
legal parent being ordered to co-parent with a person who is a stranger to the parent, with
further conflict foreordained for the legal parent, the putative de facto parent, and children.
Moreover, although the circumstances of this case involve one legal parent who is
incarcerated and therefore presently unavailable, there will inevitably be circumstances
where de facto parenthood is sought by a third party in the absence of exceptional
circumstances and with both fit legal parents available and involved in a child’s life. Under
such circumstances, to permit the consent of just one parent to create a third parent with
- 69 - custodial rights to a child without the consent of the second parent may result in families
in Maryland with children being subject to custody and visitation orders between all three
or perhaps more fit parents, who have little or no ability to co-parent, and who possibly do
not even know each other, a situation that could rarely be seen to be in the best interest of
a child.31 Permitting de facto parenthood to be established based on the express or implied
consent of both legal parents, where there are two existing legal parents, or a showing of
unfitness or exceptional circumstances strikes the appropriate balance between the parent’s
fundamental right to raise a child and the best interest of the child.
Conclusion
For the reasons set forth herein, we hold that under the first factor of the test for
establishment of de facto parenthood—whether the biological or adoptive parent consented
to, and fostered, a petitioner’s formation and establishment of a parent-like relationship
with a child—where there are two legal (biological or adoptive) parents, the prospective
de facto parent must demonstrate that both legal parents consented to and fostered such
relationship, or that the non-consenting legal parent is unfit or exceptional circumstances
exist. Accordingly, we reverse the judgment of the Court of Special Appeals in this case.
The case is remanded to the Court of Special Appeals with instruction to remand to the
31 We note that this opinion should not be interpreted as a determination that the formation of three-parent or tri-parent families by people who consent is prohibited in Maryland. As our holding in this case makes clear, with the satisfaction of the four factor test for de facto parenthood adopted in Conover, including the consent of both parents where there are two legal parents, or in the event that a third party demonstrates the unfitness of a non-consenting legal parent or the existence of expectational circumstances, a third party may become a de facto parent.
- 70 - circuit court for that court to vacate the judgment awarding joint legal custody and sole
physical custody to T.R.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTION TO REMAND TO THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY TO VACATE JUDGMENT AWARDING CUSTODY TO RESPONDENT. RESPONDENT TO PAY COSTS.
- 71 - Circuit Court for Prince George’s County Case No. CAD18-04949 Argued: April 13, 2021 IN THE COURT OF APPEALS
Dissenting Opinion by Biran, J., which Barbera, C.J., joins ______________________________________
Filed: July 12, 2021 Respectfully, I dissent. There is no sound basis in law or policy to require that both
legal parents must consent to and foster a third party’s parental-type relationship with their
child before a family court may recognize the third party as a de facto parent with standing
to seek custody and visitation. It should suffice that one of the legal parents has consented
to the relationship. In my view, the Majority’s holding is a step backwards along the path
to a modern understanding of the best interests of children, and will inevitably result in
judicial determinations that harm children.
In this case, D.D. – one of G.D.’s and B.D.’s legal parents – consented to and
fostered T.R.’s parental-type relationship with the children, and T.R. meets all the other
requirements for de facto parent status under Conover v. Conover, 450 Md. 51 (2016).
Thus, I would affirm the Court of Special Appeals’ holding that T.R. is a de facto parent
to G.D. and B.D.
I
Conover involved a same-sex couple who had a child together through artificial
insemination of one of the women. Conover, 450 Md. at 55. The married couple separated
when the child was 17 months old and eventually contested whether the spouse who was
not the biological mother of the child had standing to seek visitation of the child. Id. Thus,
Conover involved one extant legal parent, not two as in this case. In Conover, this Court
adopted Wisconsin’s multi-part test for recognition of de facto parent status with respect
to a minor child, which requires that a third party who seeks such status show:
(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.
Id. at 74 (quoting In re Custody of H.S.H.-K., 533 N.W.2d 419, 435-36 (Wis. 1995)). We
observed that “these factors set forth a high bar for establishing de facto parent status,
which cannot be achieved without knowing participation by the biological parent.” Id.
Notably, we incorporated the H.S.H.-K. test into Maryland’s common law without altering
the first factor to require that all biological or adoptive parents of a child must have
consented to, and fostered, the would-be de facto parent’s formation and development of a
parent-like relationship with the child. Rather, we referred to “the biological or adoptive
parent” in the singular. Id. at 74.
The significance of the singular “parent,” rather than the plural “parents,” to future
cases was not lost on the members of the Conover Court. In a Concurring Opinion, Judge
Shirley M. Watts (joined by Judge Lynne A. Battaglia) explained that, by incorporating the
first factor of the H.S.H.-K. test without alteration, “the Majority [held] that only one parent
is needed to consent to and foster a parent-like relationship with the would-be de facto
parent.” Id. at 455 (Watts, J., concurring). Judges Watts and Battaglia concurred in the
Majority’s recognition of de facto parent status in Maryland, but declined to join the
Majority Opinion. In their view, in adopting the H.S.H.-K. test – in particular, the first
-2- factor of that test – the Majority created “a standard that is too broad.” Id. at 87. The
concurring judges further stated that the Majority Opinion “does citizens, and particularly
the children, of Maryland a disservice by not including additional protections to ensure that
children and 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.” Id. at 94.
The Conover Majority did not disclaim Judge Watts’s interpretation of the Majority
Opinion. That is, the Majority did not say that it was only holding that the H.S.H.-K. test,
as set forth in the Majority Opinion, was applicable to cases where there was one extant
legal parent. Nor did the Majority say that it was expressing no opinion as to the
hypothetical two-parent situation with which the Concurrence was concerned. To the
contrary, in a footnote, the Conover Majority seemingly acknowledged the Concurrence’s
concern about overburdening children and families with custody and visitation demands of
multiple parties: “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 … be overburdened or fractured by multiple persons seeking
access.” Id. at 75 n.18. Thus, rather than modifying the first prong of the H.S.H.-K. test, as
suggested by the Concurrence, to eliminate standing for the third party unless both legal
parents consented to the creation of the de facto parental relationship, the Conover Majority
indicated that trial judges should address potential “overburdening” in the course of
-3- assessing the claims of all parties with standing, including de facto parents.
In this case, the Court of Special Appeals agreed with Judge Watts’s assessment in
her Concurring Opinion that the Conover Majority adopted a requirement that, regardless
of whether there is one legal parent or more than one legal parent, only one legal parent
need consent to and foster a third party’s parental-type relationship in order to satisfy the
first prong of the H.S.H.-K. test. See E.N. v. T.R., 247 Md. App. 234, 245-47 (2020).
However, the Majority now adopts the position that the Conover Majority declined to
accept, and creates a new requirement for recognition of de facto parent status where a
child has two legal parents. In such a situation, the Majority holds, both legal parents must
consent to and foster the creation of a parental caregiving relationship between a third party
and a child in order for the third party potentially to qualify as a de facto parent. The
Majority stakes out this new position on the grounds that a contrary holding: (1)
“undermines and, essentially, negates [the nonconsenting] parent’s constitutional right to
the care, custody, and control of the parent’s children,” Maj. Op. at 51; (2) “runs afoul of
… basic family law principles,” id.; and (3) “would potentially create circumstances that
are untenable for all involved.” Id. at 54. Respectfully, I disagree with all of these
contentions.
Of course, it is “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.” Conover, 450 Md. at 60.
However, it is equally well-established that a legal parent’s constitutional right to parent a
child is not absolute. See, e.g., In re Mark M., 365 Md. 687, 705 (2001) (a parent’s interest
-4- in raising a child, while a fundamental right, “is not absolute and does not exclude other
important considerations”). As we stated in Taylor v. Taylor, one of this Court’s most
consequential custody cases, “in any child custody case, the paramount concern is the best
interest of the child.” 306 Md. 290, 303 (1986). “[W]e have variously characterized this
standard as being ‘of transcendent importance’ and the ‘sole question’” in such cases. Id.
(quoting Ross v. Hoffman, 280 Md. 172, 175 n.1 (1977)). “The best interest of the child is
therefore not considered as one of many factors, but as the objective to which virtually all
other factors speak.” Id. Thus, “while a parent has a fundamental right to raise his or her
own child, … the best interests of the child may take precedence over the parent’s liberty
interest in the course of a custody, visitation, or adoption dispute.” Boswell v. Boswell, 352
Md. 204, 219 (1998); see also In re Adoption/Guardianship of C.A. and D.A., 234 Md.
App. 30, 54 (2017) (“[A] child’s best interests do trump the parent’s liberty interest in
maintaining his relationship with a child.”). The fundamental flaw in the Majority’s
holding is that, by eliminating the ability to consider a parental-type relationship that has
developed in the life of a child (barring a finding of parental unfitness or “exceptional
circumstances”), it prevents a family court from fully assessing and furthering the child’s
best interests in its custody determination.
Moreover, in my view, it is inaccurate to say that the trial court’s and intermediate
appellate court’s holding in this case negates a nonconsenting parent’s right to parent their
child. The Majority seemingly views this a zero-sum situation: if the would-be de facto
parent is given standing, the nonconsenting legal parent somehow becomes less of a parent.
I do not see it that way. First of all, we are considering a question of standing, which gives
-5- a party the opportunity to address the best interests of the child in court. The family court
in any particular case may decide not to award custody or visitation to a de facto parent.1
But even in those cases where the family court awards both the legal parent(s) and a de
facto parent custody and/or access to the child, the nonconsenting legal parent remains a
parent to the child. The nonconsenting parent may have to share custody and/or access with
a third person to some extent, but they retain their ability to live with the child, take care
of the child, and make decisions about the child’s welfare and upbringing. This
undoubtedly satisfies the Fourteenth Amendment.
In my view, the Majority errs by failing to give any weight to the rights of children
to maintain relationships with parental-type caregivers after those relationships have been
formed and fostered for a significant period of time by at least one legal parent. To be sure,
a legal parent has a fundamental right to parent their child, but that right must be balanced
in each case against the harm that will befall a child if a relationship with another parental
figure is severed. The only way a court can undertake that balancing analysis is if all parties
who have maintained a parent-child relationship for a significant period of time have
standing to make their case for custody and access to the child.
The Majority further reasons that allowing a nonconsenting legal parent to
unilaterally sever a psychological bond between a third party and a child that was fostered
1 As discussed below, a legal parent should be entitled to various preferences in a custody dispute with a de facto parent, provided that the legal parent exercised a reasonable amount of parenting functions prior to the dispute. This further diminishes any concern about “undermining” or “negating” a nonconsenting legal parent’s constitutional right to parent a child by affording standing to a person who has formed and developed a parent- child relationship with the consent of another legal parent.
-6- by another legal parent is consistent with this Court’s prior family law cases, specifically
“case law holding that third party intervention for custody requires a showing of unfitness
or exceptional circumstances.” Maj. Op. at 53-54. The problem with the Majority’s
position is that we are not dealing here with “any third party.” See Conover, 450 Md. at 71-
72 (quoting Smith v. Guest, 16 A.3d 920, 931 (Del. 2011) (“This is not a case … 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 [the child].”)). To the contrary, we are considering a
parental-type relationship in which a psychological bond has developed between the
putative de facto parent and a child. As we explained in Conover, “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. at 77; see also
id. at 76-77 (quoting Monroe v. Monroe, 329 Md. 758, 775 (1993), an exceptional
circumstances case: “Whether the child has established a relationship with a third party
sufficient to constitute exceptional circumstances … 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 …
encouraged by the biological parent.”). The psychological bond between a putative de facto
parent and child is no less real where the parent-child relationship has been fostered by
only one of two legal parents. It stands to reason that a putative de facto parent’s status as
-7- a “pure third party” – and, therefore, whether they must show unfitness of the legal parent
or exceptional circumstances to have standing – does not depend on whether only one or
both legal parents fostered the relationship and psychological bond with the child. If the
relationship has developed over a significant period of time in which the adult performed
caregiving functions for the child as a member of the same household, the putative de facto
parent is not a “pure third party,” regardless of whether only one legal parent or both legal
parents fostered the relationship and bond. It follows that, where either legal parent has
consented to and fostered the relationship, a putative de facto parent need not show the
unfitness of the nonconsenting parent or the existence of exceptional circumstances in
order to have standing to seek custody or visitation.
The Majority’s contrary rule leads to the result that D.D. would not be permitted to
sever the bond that T.R. formed with G.D. and B.D. because D.D. consented to and fostered
that relationship, but E.N. is allowed to sever that bond because she did not consent to and
foster it. This begs the question: From the perspective of G.D. and B.D., what difference
does it make which legal parent is the instrument of their not being able to have a
relationship with T.R. any longer? They will feel the loss of this relationship – the only
relationship they had with a maternal figure for several years – regardless of which of their
legal parents is the cause. See American Law Institute, Principles of the Law of Family
Dissolution: Analysis and Recommendations (2003) (adopted May 16, 2000) (the “ALI
Principles”) § 2.08 cmt. d (“From the child’s point of view, what matters is how he or she
was cared for and by whom, not why.”); see also Joseph Goldstein, Anna Freud & Albert
J. Solnit, Beyond the Best Interests of the Child 19 (1979) (“Whether any adult becomes
-8- the psychological parent of a child is based thus on day-to-day interaction, companionship,
and shared experiences. The role can be fulfilled either by a biological parent or by an
adoptive parent or by another other caring adult – but never by an absent, inactive adult,
whatever his biological or legal relationship to the child may be.”).
The Majority justifies this perverse result by postulating that the lower courts’ ruling
creates “the incomprehensible situation in which a de facto parentship may be created by
the knowing participation of only one legal parent while an equally fit legal parent is denied
the same knowing participation in the process and denied the meaningful input that we
deemed so critical for a parent to have in creating de facto parent status for a third party.”
Maj. Op. at 57. But the Majority’s position ignores a reality that all parents understand
when they have a child: the union that produced the child may not last forever. Thus, it is
reasonably foreseeable to any legal parent at the time a child is born that there may come
a day when the other legal parent will “invite[] a third party into a child’s life,” and thereby
“alter a child’s life by essentially providing him with another parent.” Marquez v. Caudill,
656 S.E.2d 737, 744 (S.C. 2008). When they have the child, the two legal parents typically
do not know whether the union will end and, if so, which one of them may consent to and
foster a parental-type relationship between the child and a new partner. All they usually
know at the time they bring the child into the world is that it is possible they will not be the
only two people who ever form a parental-type psychological bond with their child.
I do not in any way minimize the pain and frustration that a legal parent of a child
may feel about a third person – without the legal parent’s consent – having developed a
psychological bond with their child and then seeking de facto parent status and an
-9- allocation of custody. But the nonconsenting parent’s understandable anguish is not a
sufficient reason to empower that parent unilaterally to sever the parental-type
psychological bond that the would-be de facto parent has formed with the child through no
fault of the adult or child. When a person becomes one-half of a union that produces a
child, they assume the risk that they one day may be confronted with this very situation. In
short, although it undoubtedly can be very difficult for a nonconsenting parent to accept
that a bond has formed between a new partner and their child sufficient to confer de facto
parent status, it is not “incomprehensible.”
The Majority’s policy arguments also are unpersuasive. The Majority is concerned
that the lower courts’ ruling could lead to, “as in this case, a fit legal parent being ordered
to co-parent with a person who is a stranger to the parent, with further conflict foreordained
for the legal parent, the putative de facto parent, and children.” Maj. Op. at 69. It is not
clear how the Majority is able to divine that conflict is “foreordained” in all such cases.
Certainly, the family court in some cases may be concerned about the potential for conflict
and can tailor its custody and access orders accordingly. In other cases, however, two adults
who did not previously know each other well (or even at all), but who both have the best
interests of a child at heart, may well find a way to co-parent effectively. Indeed, it may
even be the case that, because they do not have a prior romantic history complicating their
relationship, a legal parent and de facto parent may end up co-parenting more effectively
than two legal parents sometimes do.
This is exactly the type of point that should be considered by a family court that has
all the parties before it and is able to delve into the unique dynamics of the case. Those
- 10 - unique dynamics may militate in some cases toward awarding only a small amount of
physical custody to the de facto parent and awarding legal custody solely to the legal
parent(s). In other cases, such as this one, the best interests of the child may result in an
order of joint legal custody. The Majority does Maryland children a disservice by adopting
a blanket rule that prevents family courts from considering the unique facts and
circumstances of these situations and, in appropriate cases, allowing the parties the
opportunity to try to work together in the best interests of a child.
The Majority’s concern about a child having three or more fit parents, “who have
little or no ability to co-parent, and who possibly do not even know each other,” Maj. Op.
at 70, also does not provide support for the rule the Majority adopts today. Even if I felt
confident enough to opine, as the Majority does, that such “a situation could rarely be seen
to be in the interest of a child,” id., the Majority’s formulation proves my point. If legal
recognition of a tri-parent family, without the consent of all three parents, even “rarely”
will be in the best of interest of the affected child, this Court should allow a family court
to determine if the matter before it is one such case. To be sure, as this Court said in
Conover, in response to Judge Watts’s point along these lines in her Concurring Opinion,
“[a] court should be very cautious and avoid having a child or family … be overburdened
or fractured by multiple persons seeking access.” Conover, 450 Md. at 75 n.18. But this
advisement by the Conover Majority presupposes that the decision is the family court’s to
make after hearing evidence and being able to inquire of all parties and their counsel. In
my view, the Majority here errs to the detriment of Maryland children and families by
- 11 - taking such determinations away from the family court.2
By constraining the family court’s ability to assess these cases based on their
individual circumstances, the Majority’s holding will lead to undesirable results. First and
foremost, it will lead to psychological harm for children as they suffer the sudden loss of a
parental-type relationship. Further, it will disincentivize people like T.R. from filling a void
left by a parent who, for whatever reason, is not present for their children for a substantial
period of time. This will not be a good outcome for children who find themselves in
situations similar to the one G.D. and B.D. faced.
The Majority’s references to the ability of a third party to obtain standing by
showing parental unfitness or exceptional circumstances, see, e.g., Maj. Op. at 65, 69-70,
are not reassuring, because those mechanisms do not solve the problem the Majority creates
by requiring two-parent consent for all the other cases that do not fall into either of these
two categories. The psychological bond between a would-be de facto parent and a child –
and the harm that may befall the child if that bond is severed – is no less real where a
nonconsenting parent is fit or where a court otherwise would not find the presence of
exceptional circumstances.3
2 As discussed below, the ALI Principles make a similar point in the course of noting a preference for legal parents and parents by estoppel over de facto parents in cases where, “in light of the number of other adults to be allocated responsibility, the allocation is impractical.” ALI Principles § 2.18 cmt. b. 3 If the Majority were of the view that the existence of a psychological bond between a child and a parental-type figure, developed with the consent of one legal parent over a significant period of time, qualified in every instance as “exceptional circumstances,” that would, of course, alleviate my concerns. However, I do not understand that to be the Majority’s position.
- 12 - I find further support for the lower courts’ ruling from other jurisdictions and from
the ALI Principles. As the Majority explains, in K.A.F. v. D.L.M., 96 A.3d 975 (N.J. Super.
Ct. App. Div. 2014), the court held that the first factor of the H.S.H.-K. test requires the
consent of only one legal custodial parent. There, one of the child’s two legal parents
(K.A.F.) initially consented to and fostered a parental-type relationship between her new
partner, D.M., and the child. Id. at 978. The child’s other legal parent (F.D.) opposed
D.M.’s relationship with the child at all times. Id. By the time the case came to court, both
K.A.F. and F.D. opposed D.M.’s claim of de facto parent status and her request for custody
and visitation. Id. The trial court dismissed D.M.’s claim on the ground that F.D. had
always opposed the parent-like relationship, holding that “where there are two fit and
involved parents, both must have consented to the creation of a psychological parent
relationship before a third party can maintain an action for visitation and custody based on
the existence of that relationship.” Id.
The appellate court reversed, explaining that it “fail[ed] to perceive any basis for
th[e] argument either in the law or the policies underlying the concept of a psychological
parent.” Id. at 979. The court opined that “it would be difficult to ignore the ‘psychological
harm’ a child might suffer because he is deprived of the care of a psychological parent
simply because only one of his ‘legal parents’ consented to the relationship.” Id. at 981.
The court further explained that the “clear policy underlying” prior New Jersey Supreme
Court rulings regarding “exceptional circumstances” cases
is that “exceptional circumstances” may require recognition of custodial or visitation rights of a third party with respect to a child where the third party has performed parental duties at home for the child, with the consent of a
- 13 - legal parent, however expressed, for such a length of time that a parent-child bond has developed, and terminating that bond may cause serious psychological harm to the child. It is fatuous to suggest that this fundamental policy may be subverted, and that a court may not even examine the issue at a plenary hearing, where one of the child’s legal parents colorably claims lack of consent, in circumstances where the other legal parent has consented. If we were to accept the arguments of K.A.F. and F.D., a court would be powerless to avert harm to a child through the severance of the child’s parental bond with a third party.
Id. at 981-82 (citations omitted). The court further explained:
Nothing in the historical development of the psychological parent policy, in the policy itself, or in the language of the Court, therefore, suggests that both legal parents must consent before a court may consider a claim of psychological parenthood by a third party. Rather, it is sufficient if only one of the legal custodial parents has consented to the parental role of the third party. In that circumstance, a legal custodial parent has voluntarily created the relationship and thus has permitted the third party to enter the zone of privacy between her and her child.
Id. at 983.
Like the New Jersey appellate court, I believe it is crucial that one of the legal
parents must “voluntarily create[] the relationship and thus … permit[] the third party to
enter the zone of privacy between her and her child,” id., but that only one legal parent
need do so for the third party potentially to qualify as a de facto parent.4
4 As the Majority notes, the K.A.F. Court added that a legal parent’s consent, or lack thereof, to a third party’s relationship with the parent’s child “may be used by a trial court, in an appropriate context, as one factor among many in determining whether a third party has established that he or she is a psychological parent of a child, and, if so, whether the ‘best interests’ of the child warrant some form of custody or visitation.” Id. at 983. Given this language, the Majority opines that the K.A.F. Court’s holding “does not stand for the proposition that in determining de facto parenthood the consent of a second legal parent is to be entirely ignored.” Maj. Op. at 65. Nevertheless, it is clear that the Majority’s holding today is at odds with K.A.F., in that the Majority requires a showing of consent by the second legal parent to the formation of the parental-type relationship between the putative
- 14 - The Majority disagrees with K.A.F.’s holding and, instead, prefers that of the
Washington Court of Appeals in In re Parentage of J.B.R., 336 P.3d 648 (Wash. App. Ct.
2014). In summarizing its holding in the first paragraph of the opinion in J.B.R., the
intermediate appellate court of Washington stated that the doctrine of de facto parentage
“may be extended to a stepparent of a child with two legal parents … if the stepparent
petitioner establishes that both legal parents consented to the stepparent being a parent to
the child.” Id. at 649-50. However, in the body of the opinion, the court provided no
analysis explaining why the consent of both legal parents is necessary. Instead, the court
focused on the long-absent biological father’s implied consent for the biological mother’s
partner to fill the vacant paternal role. See id. at 653.
Notably, in 2018, the Washington State Legislature superseded J.B.R.’s holding
when it enacted a statute entitled “Adjudicating claim of de facto parentage of child.”
Wash. Rev. Code Ann. § 26.26A.440 (2019). Pertinent to the issue before us, the new
statute provides:
In a proceeding to adjudicate parentage of an individual who claims to be a de facto parent of the child, the court shall adjudicate the individual who claims to be a de facto parent to be a parent of the child if the individual demonstrates by a preponderance of the evidence that:
(a) The individual resided with the child as a regular member of the child’s household for a significant period;
(b) The individual engaged in consistent caretaking of the child;
(c) The individual undertook full and permanent responsibilities of a
de facto parent and the child. In my view, the consent of the second legal parent (or the lack thereof) is properly considered as part of the best interests analysis, not in deciding whether the first prong of the H.S.H.-K. test has been met.
- 15 - parent of the child without expectation of financial compensation;
(d) The individual held out the child as the individual’s child;
(e) The individual established a bonded and dependent relationship with the child which is parental in nature;
(f) Another parent of the child fostered or supported the bonded and dependent relationship required under (e) of this subsection; and
(g) Continuing the relationship between the individual and the child is in the best interest of the child.
Id. § 26.26A.440(4) (emphasis added).
The Washington Court of Appeals has explained that the “parental support”
requirement set forth in § 26.26A.440(4)(f) only requires a showing that one legal parent
“fostered or supported” the requisite “bonded and dependent relationship.” Matter of
L.J.M., 476 P.3d 636, 644 (Wash. Ct. App. 2020) (noting that “RCW 26.26A.440(4)(f)
does not reference the child’s other genetic parent. The only requirement is that one parent
– ‘[a]nother parent’ – support the petitioner’s relationship with the child.”) (emphasis
removed). The court acknowledged that “[t]he court in J.B.R. analyzed under the common
law whether both biological parents fostered and supported the petitioner’s relationship
with the child,” but recognized that the new statute takes a different approach by “clearly
refer[ring] to ‘[a]nother parent,’ not both parents.” Id. at 644-45 n.4.
Thus, to the extent the Majority relies on J.B.R. as support for its holding that both
legal parents’ consent is required to create a de facto parentship, it not only relies on a case
- 16 - that provided no reasoned analysis,5 but also has no effect under current Washington law.
To the contrary, the Washington State Legislature has codified the approach taken by the
Court of Special Appeals in this case.
As the Majority notes, in Conover, this Court cited the ALI Principles favorably.
See Conover, 450 Md. at 81 (citing §§ 2.03 and 2.04 of the ALI Principles and noting that
the 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”). Section
2.03 of the ALI Principles includes three types of parents in its definition of a “parent”: (1)
a “legal parent”; (2) a “parent by estoppel”; and (3) a “de facto parent.”
For our purposes, a “legal parent” is a biological or adoptive parent. See Conover,
450 Md. at 74. Under the ALI Principles, a “parent by estoppel” is “an individual who,
though not a legal parent,”
(i) is obligated to pay child support …; 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-
5 The Majority asserts that, “[d]espite subsequent changes in Washington law establishing a different test, in J.B.R., the Court of Appeals of Washington necessarily interpreted the four factors of the H.S.H.-K. test for establishment of de facto parenthood[.]” Maj. Op. at 43 n.18. However, one searches J.B.R. in vain for any substantive analysis bearing on the question of one-parent versus two-parent consent.
- 17 - 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.
ALI Principles § 2.03(1)(b).
The ALI Principles’ definition of a de facto parent is substantially similar to the one
we adopted in Conover. Under the ALI’s definition, 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.
Id. § 2.03(1)(c).
Notably, the ALI’s definition of a parent by estoppel based on the existence of a
prior agreement (§§ 2.03(1)(b)(iii) and (iv)) explicitly refers to the agreement having been
made with both legal parents, if there are two legal parents. In contrast, the text of the
definition of a de facto parent does not refer to “both parents.” Rather, § 2.03(c)(ii) refers
to the formation of a parent-child relationship with “the agreement of a legal parent” or “as
- 18 - a result of a complete failure or inability of any legal parent to perform caretaking
functions.” Thus, as I read the definitions in the ALI Principles, the ALI distinguishes
between a parent by estoppel and a de facto parent with respect to the consent necessary to
create these different types of third-party parent. In this regard, it is telling not only that the
definition of a de facto parent uses the singular when referring to the agreement of “a legal
parent,” but also that it uses the singular when addressing the “complete failure or inability
of any legal parent to perform caretaking functions.” (Emphasis added). That is, if neither
of two legal parents consents to the formation of a parental-type relationship, but the
relationship nevertheless arises due to the “complete failure or inability” of the legal parent
with whom the third party lives to perform caretaking functions, the ALI Principles will
recognize the third party as a de facto parent (assuming the other necessary conditions are
met). Suppose, for example, that D.D. had not fostered a parental-type relationship between
T.R. and the children before 2017, but instead of being incarcerated at that time, he was
incapacitated by a stroke, after which T.R. became the children’s primary caregiver,
thereby forming a psychological bond with them. In that instance, according to the ALI’s
definition of de facto parent, T.R. might qualify for de facto parent status, regardless of
whether E.N. had knowledge of or consented to the relationship.
Contrary to the Majority’s interpretation of the comments to the relevant definitions,
I find that the comments provide further support for the conclusion that the ALI views the
consent of one legal parent to be sufficient to potentially confer de facto status. The
comment to § 2.03(1)(b)(iii) explicitly states that, for a parent-by-estoppel relationship to
be created by virtue of a co-parenting agreement, if there are more than two extant legal
- 19 - parents, “each parent must agree” to the co-parenting agreement. With respect to co-
parenting arrangements that come into effect after the child’s birth, § 2.03(1)(b)(iv) also
requires that, if there are two or more extant legal parents, all such legal parents agree to
the co-parenting arrangement by which a third party agrees to accept “full and permanent
responsibilities as a parent.” Id. cmt. b(iv).
As the Majority notes, in the introductory portion of the comment to the de facto
parent definition, the comment states that the “legal parent or parents must have agreed to
the arrangement” by which the would-be de facto parent formed the parent-child
relationship. Id. cmt. c. Significantly, however, the ALI here does not repeat the phrase
“each parent must agree” that it uses a few pages earlier when discussing the parent-by-
estoppel definition. Moreover, in the portion of the comment specifically addressing
consent, the de facto parent comment does not repeat the phrase “or parents.” Rather, the
comment provides:
(iii) Agreement of a parent to the de facto parent relationship. Like a parent- by-estoppel status, a de facto parent relationship cannot arise by accident, in secrecy, or as a result of improper behavior. The agreement requirement of Paragraph (1)(c)(ii) limits de facto parent status, in most circumstances, to those individuals whose relationship to the child has arisen with knowledge and agreement of the legal parent. Although agreement may be implied by the circumstances, it requires an affirmative act or acts by the legal parent demonstrating a willingness and an expectation of shared parental responsibilities….
The only circumstance in which a de facto parent may be recognized without the agreement of a legal parent is when there has been a total failure or inability by the legal parent to care for the child. This circumstance exists only when a parent is absent, or virtually absent, from the child’s life, such as when a parent has abandoned the child or has been imprisoned or institutionalized. While some of these circumstances may be considered beyond the control of the legal parent, they function in the same way to
- 20 - permit to develop the kind of long-term, substitute parent-child relationship that this Chapter seeks to recognize.
Id. cmt. c(iii) (emphasis added).
Finally, the comment explains that, in order to be a de facto parent, the individual
either must have performed the majority share of caretaking functions for the child, or must
have performed a share of caretaking functions that was equal to or greater than that
performed by the parent with whom the child primarily lived. Id. cmt. c(v). With respect
to the second of these possibilities, the comment notes: “An individual who is sharing
caretaking responsibility equally with a child’s only other parent will meet this criterion.
So will an individual who is sharing caretaking responsibility for a child whose parents live
in different households, if the child lives primarily in the household in which that individual
also lives and the individual performs at least as much caretaking responsibility as the
parent in that household.” Id. This part of the comment says nothing about the nonresident
parent necessarily having any knowledge of, or consenting to, the third party’s equal or
greater caretaking role in the household. Nor is such knowledge something that a
nonresident parent would be expected to have. However, the third party’s share of
caretaking functions in the household is something the resident parent would know about
and consent to. In my view, this is key to the creation of de facto parent status, at least
according to the ALI.
Based on the texts of the ALI’s definitions and a careful reading of the relevant
comments, I conclude that the ALI requires a greater showing with respect to consent for
recognition as a parent by estoppel than it does for recognition as a de facto parent. This
- 21 - makes sense because, under the ALI Principles, a parent by estoppel has taken on greater
responsibilities than a de facto parent and, as a result, also has greater rights than a de facto
parent with respect to custody.
Whereas a de facto parent has “regularly performed a majority of the caretaking
functions for the child, or … regularly performed a share of caretaking functions at least as
great as that of the parent with whom the child primarily lived,” id. § 2.03(1)(c)(ii),6 a
parent by estoppel, pursuant to a prior agreement with the legal parent(s), has “accept[ed]
full and permanent responsibilities as parent,” id. §§ 2.03(1)(b)(iii) & (iv), including
financial obligations. Full and permanent responsibilities as a parent include performing
“parenting functions,” which the ALI Principles define to include the same “caretaking
functions” a de facto parent has performed, as well as providing economic support,
participating in decisions concerning the child’s welfare, maintaining or improving the
family residence, doing and arranging financial planning and organization, car repair and
maintenance (and other tasks supporting the consumption and savings needs of the
household), and “performing any other functions that are customarily performed by a
6 The ALI Principles define “caretaking functions” as “tasks that involve interaction with the child or that direct, arrange, and supervise the interaction and care provided by others,” including (among other things) satisfying the child’s nutritional needs, managing the child’s bedtime and wake-up routines, caring for the child when sick or injured, protecting the child’s physical safety, providing transportation, directing the child’s various developmental needs (such as toilet training and the acquisition of motor and language skills), attending to the child’s needs for behavioral control and self-restraint (such as by providing discipline), arranging for the child’s education, communicating with teachers and counselors, supervising homework, helping the child to develop and maintain appropriate interpersonal relationships with peers, siblings, and other family members, and arranging for healthcare providers, medical follow-up, and home health care. Id. § 2.03(5).
- 22 - parent or guardian and that are important to a child’s welfare and development.” Id. §
2.03(6)(e).
Given the relatively greater responsibilities of a parent by estoppel, the ALI
Principles also provide, in general, relatively greater rights of custody and access to parents
by estoppel than to de facto parents – indeed, the ALI Principles provide parents by
estoppel with rights that are equal to those of legal parents. First, the Principles provide
that legal parents and parents by estoppel who have performed a reasonable share of
parenting functions should receive an allocation of custodial responsibility that is “not less
than a presumptive amount of custodial time set by a uniform rule of statewide
application.” Id. § 2.08(1)(a). There is no similar requirement requiring an allocation of
custodial responsibility to a de facto parent. Second, “[t]he court should presume that an
allocation of decisionmaking responsibility jointly to each legal parent or parent by
estoppel who has been exercising a reasonable share of parenting functions is in the child’s
best interests.” Id. § 2.09(2).7 Third, “[t]he court should not allocate the majority of
custodial responsibility to a de facto parent over the objection of a legal parent or parent
by estoppel who is fit and willing to assume the majority of custodial responsibility unless
(i) the legal parent or parent by estoppel has not been performing a reasonable share of
parenting functions, as defined in § 2.03(6), or (ii) the available alternatives would cause
7 The ALI defines “decisionmaking responsibility” as “authority for making significant life decisions on behalf of the child, including decisions about the child’s education, spiritual guidance, and health care.” Id. § 2.03(4). Thus, “[d]ecisionmaking responsibility is the [ALI Principles’] term for what most states call ‘legal custody.’” Id. § 2.03 cmt. f.
- 23 - harm to the child.” Id. § 2.18(1)(a). Fourth, “an allocation that would otherwise be made
to a de facto parent may be limited or denied if, in light of the number of other adults to be
allocated responsibility, the allocation is impractical.” Id. § 2.18 cmt. b.
In sum, the ALI Principles provide that, before a person is recognized as a parent
by estoppel, who is entitled to custodial rights equal to that of a legal parent, both legal
parents must have consented to the co-parenting arrangement that predated the custody
dispute. However, given that a de facto parent is not entitled to the same rights as a legal
parent or a parent by estoppel, a de facto parent need not show that both legal parents
consented to the formation of the psychological bond between the third person and the
child.
For all the above reasons, I would retain the Conover test for de facto parent status
without alteration. There is no sound reason to require that both legal parents consent to a
third party’s formation of a parental bond with a child sharing the same household in order
for de facto parent status to be recognized. As the Majority explains, “de facto parent”
means “parent in fact.” Maj. Op. at 1. Nothing in the Majority Opinion can change the fact
that a meaningful and psychologically important parental-type bond can be formed with
the consent of only one legal parent.
The Majority’s holding requiring that both legal parents consent to the relationship
in order to prevent one of the parents from severing that bond inevitably will result in
judicial determinations that harm children. In my view, the better course of action is to
allow the circuit court, regardless of whether one or both of a child’s legal parents
consented to the parental-type relationship, to consider all the facts and circumstances of
- 24 - each case and allocate custody among legal parents and de facto parents in furtherance of
the best interests of the child. This is in accord with the principles stated in Taylor v. Taylor
and other Maryland cases that have recognized that the best interests of the child take
precedence over all other interests, including a legal parent’s liberty interest in raising a
child. See, e.g., Taylor, 306 Md. at 303; Boswell, 352 Md. at 219; see also ALI Principles
§ 2.02 cmt. b (noting that the primary objective of the Principles’ Chapter on custodial and
decisionmaking responsibility is “serving the child’s best interests. The priority of the
child’s interests over those of the competing adults is premised on the assumption that
when a family breaks up, children are usually the most vulnerable parties and thus most in
need of the law’s protection.”). Regrettably, the Majority loses sight of that goal through
its overemphasis of the rights of a nonconsenting parent.
II
Applying the Conover test without alteration, I would affirm the Court of Special
Appeals’ holding that T.R. is a de facto parent to G.D. and B.D. It is undisputed that D.D.,
a legal parent to the two children, consented to and fostered the parental relationship
between T.R. and the children. That is sufficient to establish the first part of the H.S.H.-K.
test as adopted in Conover. It is undisputed that T.R. meets all the other parts of the H.S.H.-
K. test. That is, T.R. lived with G.D. and B.D. in the same household; she assumed
obligations of parenthood by taking significant responsibility for the children’s care,
education, and development, including contributing towards their support, without
expectation of financial compensation; and she fulfilled this parental role for a length of
time sufficient to have established with the children a bonded, dependent relationship,
- 25 - parental in nature. See Conover, 450 Md. at 74.
Although generally it is appropriate to afford a preference to legal parents in the
allocation of legal and physical custody when the dispute is between a legal parent and a
de facto parent, see ALI Principles §§ 2.08(1)(a), 2.09(2) & 2.18(1)(a), that preference does
not apply when the legal parent has not been “exercising a reasonable share of parenting
functions.” See id. § 2.18 cmt. b. Because it is clear from the record that E.N. voluntarily
absented herself from the children’s lives for more than two years after they moved in with
D.D., and indeed largely was an absent parent for the two years preceding their move, the
circuit court’s allocation of legal and physical custody between E.N. and T.R. was
reasonable.8 The Court of Special Appeals summarized some of the trial court’s “salient
8 Although the Majority’s discussion of implied consent is not germane to the issue that causes me to dissent, I do have concerns about the Majority’s treatment of implied consent. It seems that the Majority would require that, unless a legal parent has abandoned a child, to establish implied consent the putative de facto parent must show that the legal parent had actual knowledge of the identity of the de facto parent and the nature of the de facto parent’s relationship with the child. That sets too a high a bar for a finding of implied consent in this context. In my view, a legal parent gives implied consent to the formation of a de facto parental relationship where, as in this case, the legal parent for a significant period of time “voluntarily absented himself from [the children’s lives],” J.B.R., 336 P.3d at 654, leading to the foreseeable result that the other legal parent’s partner filled the void left by the legal parent. As the Majority notes, the circumstances of this case differ from those of J.B.R., see Maj. Op. at 64, but only by degrees. To be sure, the biological father in J.B.R. chose not to have a relationship with his daughter for over a decade, whereas, here, the record reflects that E.N. was effectively an “absent mother” for approximately two to four years. As E.N. reasonably should have foreseen, however, that was more than enough time for D.D.’s romantic partner to fill the maternal void that E.N. had left in her children’s lives, if the partner chose to do so and if the children accepted her in a maternal role. Thus, I agree with the Court of Special Appeals that E.N.’s course of conduct at least “arguably manifests … implied consent.” E.N., 247 Md. App. at 247 n.11. The Majority’s contrary determination will encourage legal parents in similar situations in the future to deliberately fail to learn details concerning their child’s relationship with the other legal parent’s
- 26 - findings” in the best-interests analysis, “none of which [E.N.] challenges on appeal”:
• T.R. is a “wonderful mother,” while [E.N.] “needs advice and guidance on daily parenting responsibilities.”
• Although T.R.’s request for custody is sincere, “the [c]ourt is less than convinced of [E.N.’s] sincerity.”
• The children expressed clear preference to live with T.R., and they told the court that “they felt abandoned by their mother” and saw T.R. as “their ‘real’ mother.”
• The children have developed friendships “in the neighborhood and school” while living with T.R., and they are thriving in school with T.R.’s assistance. [E.N.], on the other hand, “has trouble knowing and obtaining information about the children’s activities,” and “does not assist the ... children with their homework.”
• T.R. is an “integral part” of the children’s lives and the “children have bonded and established a parent-child relationship with her.”
E.N., 247 Md. App. at 251-52. The Court of Special Appeals “discern[ed] no abuse of
discretion in the court’s decision to award primary physical custody of the children to T.R.”
Id. at 252. I would reach the same conclusion.
The best interests of G.D. and B.D. are not furthered by the Court’s holding allowing
E.N. – who voluntarily absented herself from the children’s lives for more than two years
and who was not an active parent to the children when they lived with her before then – to
sever T.R.’s parental-type bond with the children. T.R. formed that bond with the consent
of their father and gave the children love and stability. T.R.’s bond with G.D. and B.D. is
partner, and later claim insufficient knowledge of the situation to provide implied consent to the formation of a parental-type relationship.
- 27 - a relationship that this Court should respect. It exists. It cannot be ignored. By failing to
give any weight to that bond, the Majority takes a position that necessarily will harm these
two children and others in future cases. I cannot join an opinion that will lead to the
severing of parental-type relationships without first giving a family court the opportunity
to consider whether it is in the best interests of a child to allow a psychological parent to
have some measure of access to the child and, thereby, keep intact the bond that has formed.
Instead, I would hold that the consent of one legal parent is sufficient to establish the
necessary “consent” under the first part of the H.S.H.-K. test.
Chief Judge Barbera has authorized me to state that she joins this opinion.
- 28 -
Related
Cite This Page — Counsel Stack
474 Md. 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/en-v-tr-md-2021.