Kateryna A. Bagrii v. John P. Campbell

2025 ME 38

• Court: Supreme Judicial Court of Maine
• Decided: April 29, 2025
• Docket: Pen-23-294
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2025 ME 38 Docket: Pen-23-294 Argued: March 5, 2024 Decided: April 29, 2025

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ., and HUMPHREY, A.R.J. Majority: MEAD, HORTON, and LAWRENCE, JJ., and HUMPHREY, A.R.J. Dissent: DOUGLAS, J., and STANFILL, C.J., and CONNORS, J.

KATERYNA A. BAGRII

v.

JOHN P. CAMPBELL et al.

HORTON, J.

[¶1] Kateryna A. Bagrii appeals from a judgment of the District Court

(Newport, Ociepka, J.) dismissing, for lack of standing, her complaint under the

Maine Parentage Act seeking to establish herself as a de facto parent of two

children whose biological parents are John P. Campbell and Jie Chen. See 19-A

M.R.S. §§ 1831, 1891 (2025). Bagrii challenges the court’s factual findings and

asks us to alter our holding in Martin v. MacMahan, 2021 ME 62, ¶¶ 29-31, 264

A.3d 1224, to enable her to obtain standing without having to establish Chen’s

explicit or implicit consent to Bagrii’s parental role. Bagrii also requests that

we exercise our parens patriae authority to recognize her standing in the 2

circumstances of this case. We affirm the judgment dismissing Bagrii’s

complaint for lack of standing.

I. BACKGROUND

[¶2] The District Court found the following facts, and there is competent

evidence in the record to support them. See Martin, 2021 ME 62, ¶¶ 24, 33, 264

A.3d 1224. Campbell is a United States citizen, and Chen is a citizen of China.

Campbell and Chen met in 2011, when Campbell was living and working in

China. Chen was about twenty-two years old at the time.

[¶3] Chen became pregnant with their first child in 2012 at a time when

she did not feel ready to be a parent. Chen and Campbell began living together

late during the pregnancy, and the child was born in February 2013. Campbell

had to leave China because of an expiring teaching visa. He took a job in

Ukraine, returning periodically to stay with Chen and the child in China. Chen

became pregnant again about six months after the first child’s birth. She

believed that she and Campbell would raise their children together as a family.

[¶4] In November 2013, Bagrii, a Ukrainian citizen, became one of

Campbell’s English-language students in Ukraine. The two began a romantic

relationship that Campbell concealed from Chen. 3

[¶5] Chen and Campbell’s second child was born in April 2014, at a time

when China had a strict one-child policy that imposed harsh penalties on

families with more than one child. Campbell was adamant that his children

would not grow up in China, and he made plans to remove them from the

country. He and Chen did not reach an agreement about who would raise the

children.

[¶6] During the summer of 2014, Campbell and Bagrii continued their

relationship in Ukraine and discussed living together and bringing Campbell’s

two children to live with them in Ukraine. Campbell visited China and brought

his older child back to Ukraine with him in September 2014. Two months later,

he brought his younger child to Ukraine.

[¶7] Chen had not voluntarily consented to the children’s removal from

China. She had hidden with the children at her mother’s home to try to prevent

Campbell from taking them. Campbell called on police authorities and the

United States Consulate in China to find the children. Chen was under threat of

penalties due to the one-child policy, and Campbell forced her to let the children

leave with him. Chen felt scared and helpless and had no other options.

Throughout their relationship, Campbell had been controlling and verbally 4

abusive, and his behavior caused Chen to fear him. She often kept silent to avoid

upsetting him.

[¶8] After Campbell forcibly removed the children from China, he and

Bagrii formed a family, which included Campbell and Chen’s two children and

Bagrii’s two children from a previous marriage. Campbell told Bagrii that Chen

was too young to be a mother and that China was not a good environment for

Chen and Campbell’s children. Bagrii breastfed Chen and Campbell’s children

and acted as their mother.

[¶9] From late 2014 to mid-2015, Campbell and Bagrii moved back and

forth from Ukraine to the country of Georgia. Bagrii had been a doctor of

cardiology in Ukraine but did not work during that time. She took care of the

children with Campbell. Any time that Campbell had to be out of the country

he gave Bagrii power of attorney to make decisions for his two children.

Campbell maintained some contact with Chen after he took custody of the

children, but around the middle of 2015 Campbell told Chen not to contact him

anymore.

[¶10] Campbell and Bagrii were married on March 17, 2015, during a

trip to San Diego, California. In January 2016, they moved with the children to

Westport, New York. Bagrii continued to act as the children’s mother and began 5

nursing school. She had to start anew in her education because her

qualifications from Ukraine were not recognized in the United States. Campbell

and Bagrii had two children together. In 2018, Campbell, Bagrii, and the six

children moved to Levant, Maine. Bagrii continued with her education, earning

her associate’s degree and a bachelor’s degree. She is on track to earn her

master’s degree.

[¶11] Chen and Campbell’s children called Bagrii “Mom” and had regular

contact with Bagrii’s parents in Ukraine through Skype. Bagrii considered them

her children. She cooked for them, helped them with their homework, and

comforted them when they were ill, whether or not Campbell was present.

[¶12] By 2019, the relationship between Campbell and Bagrii had begun

to deteriorate. Campbell said he wished Bagrii would die in a car accident or

return to Ukraine. Bagrii left Campbell on April 30, 2020, and for the first time

contacted Chen about Chen’s children. Chen had not known where the children

were from the middle of 2015 until Bagrii’s contact in April 2020. Campbell

had occasionally sent Chen brief updates by email, but Chen knew only that the

children were overseas.

[¶13] In Bagrii’s conversation with Chen, Bagrii said that she did not

think Campbell could care for the children safely. She was concerned about his 6

mental and physical health, financial stability, and ability to care for the

children’s needs. The children were about seven and six years old at that time.

[¶14] Campbell prohibited any contact between Bagrii and the children

from that point forward. Campbell and Bagrii filed complaints for protection

from abuse against each other, but the complaints were ultimately dismissed.

[¶15] In early 2020, concerns were raised that Bagrii used physical

discipline with the children, that one of her older children posed a safety issue

to the younger children, and that Campbell might not be able to parent and care

for the children. Neither of Campbell and Chen’s two children has indicated a

strong desire to see Bagrii—they have made statements that she was “mean.”

Bagrii has primary residence of her and Campbell’s children, and Campbell has

rights of contact.

[¶16] Chen has taken active steps to reconnect with her two children.

She has had two in-person visits with them in the United States and has had

video communications with them from China. She has a ten-year visitor visa

that allows her to stay in the United States for up to 180 days at a time. She is

moving to Switzerland, with a goal to facilitate easier contact with the children

given that Campbell will not agree to allow the children to visit Chen in China. 7

[¶17] On October 27, 2021, Bagrii filed a complaint seeking a

determination that she is a de facto parent of Chen and Campbell’s two children.

She attached an affidavit in support of her complaint averring that she had

functioned as the children’s parent since 2014; that they have called her

“Momma” throughout their lives; that Campbell fostered and supported her

parental relationship with the children; that she has accepted full, permanent

parental responsibility for them without the expectation of compensation; and

that her continued relationship with the children is in their best interests.

Campbell and Chen each answered and opposed the recognition of Bagrii as a

de facto parent. On June 7, 2022, the court (Chandler, M.) appointed a guardian

ad litem, with no objection from any party.1

[¶18] Bagrii moved for the court to hold an interim hearing on whether

Bagrii could have contact with Chen and Campbell’s two children while the

matter was pending. Chen and Campbell objected. The family law magistrate

(Laskey, M.) ordered that the complaint be submitted to a judge for a

preliminary determination of standing.

1 Although no party raises the issue, de facto parentage cases, see 19-A M.R.S. § 1891 (2025), are not among the case types in which a statute authorizes the appointment of a guardian ad litem. See 19-A M.R.S. § 1507(1) (2025) (authorizing a court to appoint a guardian ad litem “[i]n contested proceedings under sections 904 [orders pending divorce], 1653 [parental rights and responsibilities] and 1803 [petition for grandparent and great-grandparent visitation] in which a minor child is involved.”). It is clear from the guardian ad litem’s report that he was also appointed in a separately pending parental rights matter between Chen and Campbell. 8

[¶19] After the court (Faircloth, J.) held a status conference in

March 2023, the court (Ociepka, J.) held an evidentiary hearing both on the

issue of standing and on the de facto parentage complaint on July 7, 2023. The

court heard testimony from Bagrii, Chen, and Campbell, and admitted the

guardian ad litem’s report, which recommended against granting Bagrii contact

with the children because the children did not want it and had disclosed

physical abuse by Bagrii and inappropriate conduct by one of her children.

[¶20] The court entered a judgment on August 8, 2023, dismissing

Bagrii’s complaint for lack of standing based on a finding that, although Bagrii

proved by a preponderance of the evidence all other elements for de facto

parentage, including that Campbell consented to Bagrii’s parenting of the

children, Bagrii did not meet her burden of demonstrating by a preponderance

of the evidence that Chen fostered and supported her relationship with the

children or understood, acknowledged, or accepted Bagrii’s assumption of a

parental role. See Davis v. McGuire, 2018 ME 72, ¶ 26, 186 A.3d 837. Because

of the dismissal, the court denied Bagrii’s motion for an interim order. Bagrii

timely appealed. See 19-A M.R.S. § 104 (2025); 14 M.R.S. § 1901 (2025);

M.R. App. P. 2B(c)(1). 9

II. DISCUSSION

[¶21] Bagrii argues that our analysis in Martin, 2021 ME 62, 264 A.3d

1224, is at odds with the plain language of the statute and that her own

circumstances demonstrate how a person can be a de facto parent without the

consent of all parents who appear in a case. She also argues that she has

standing even under Martin because the evidence shows that Chen implicitly

consented to Bagrii’s parental role. Finally, she contends that we should—

notwithstanding the de facto parentage statute—vacate the dismissal of

Bagrii’s complaint and remand the matter for the court to exercise its parens

patriae authority in the children’s best interests.

A. Statutory Interpretation and Due Process

[¶22] “A proceeding to adjudicate the parentage of a child,” including

de facto parentage, is brought under the Maine Parentage Act. 19-A M.R.S.

§ 1834 (2025); see id. § 1891. “[A] party who files a complaint to be adjudicated

a de facto parent of a child must make an initial showing of standing . . . .” Davis,

2018 ME 72, ¶ 13, 186 A.3d 837; see 19-A M.R.S. § 1891(2). “The requirement

of a preliminary showing of standing is a function of the principle that a parent

has a fundamental right to raise his or her child”—a right that may be infringed 10

upon if a person must expend resources to defend against a third party’s claim

of de facto parenthood. Davis, 2018 ME 72, ¶¶ 13-14, 186 A.3d 837.

[¶23] With respect to standing, the Act ordinarily requires the court to

determine, on the basis of the parties’ pleadings and affidavits, “whether the

person seeking to be adjudicated a de facto parent has presented prima facie

evidence of the requirements set forth in subsection 3.” 19-A M.R.S.

§ 1891(2)(C); see id. § 1891(2)(A), (B). The court may, however, “if necessary

and on an expedited basis, hold a hearing to determine disputed facts that are

necessary and material to the issue of standing.” 19-A M.R.S. § 1891(2)(C). The

court employed this process here.

[¶24] A party must establish standing by a preponderance of the

evidence, whereas a final determination of de facto parentage requires proof by

clear and convincing evidence. See Davis, 2018 ME 72, ¶ 26, 186 A.3d 837;

19-A M.R.S. § 1891(3). For a person to be declared a de facto parent, that the

person must have

fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life. Such a finding requires a determination by the court that:

A. The person has resided with the child for a significant period of time; 11

B. The person has engaged in consistent caretaking of the child;

C. A bonded and dependent relationship has been established between the child and the person, the relationship was fostered or supported by another parent of the child and the person and the other parent have understood, acknowledged or accepted that or behaved as though the person is a parent of the child;

D. The person has accepted full and permanent responsibilities as a parent of the child without expectation of financial compensation; and

E. The continuing relationship between the person and the child is in the best interest of the child.

19-A M.R.S. § 1891(3) (emphasis added).

[¶25] In interpreting section 1891(3)(C) in Martin, 2021 ME 62, ¶¶ 24,

28-29, 264 A.3d 1224, we examined de novo the legal question of whether, to

avoid an unconstitutional result, we had to read the de facto parentage statute

to require all parents to have “understood, acknowledged or accepted that or

behaved as though the person is a parent of the child,” 19-A M.R.S. § 1891(3)(C).

Because “the parents’ fundamental right[s] to direct the upbringing of their

children” are substantially infringed upon when another person is established

as a de facto parent, we applied strict scrutiny to determine whether section

1891(3)(C) comported with constitutional due process principles. Martin,

2021 ME 62, ¶ 25, 264 A.3d 1224. We held that “a putative de facto parent must 12

prove the elements of section 1891(3)(C) as to a legal parent who appears and

objects to the de facto parentage petition.” Id. ¶ 29.

[¶26] That requirement prevents the “unilateral actions of one legal

parent” from causing “an unconstitutional dilution of another legal parent’s

rights.” Id. However, Martin does not require proof that all parents have

expressly consented to the putative de facto parent’s parental role. See id. ¶ 31.

A plaintiff can acquire de facto parental rights by demonstrating that the legal

parent or parents appearing in a case “have implicitly, through acts or

omissions if not through words, fostered, supported, and accepted the person’s

parental role.” Id.; see also id. ¶ 33 (affirming a judgment establishing de facto

parenthood in a couple when the objecting parent had at least implicitly

accepted the couple’s parental role by expressing appreciation for them raising

his children and by granting them temporary legal authority over the children).

By abandoning the child or otherwise abdicating parental rights and

responsibilities, a legal parent may be deemed to have acknowledged and

accepted a de facto parent’s role. See id. ¶¶ 31-33. Our approach “raises fewer

constitutional issues” than an approach that requires consent from only one

parent. Jessica Feinberg, The Boundaries of Multi-Parentage, 75 SMU L. Rev.

307, 349 (2022). 13

[¶27] Here, both Campbell and Chen appeared and argued and testified

that they objected to Bagrii having status as a de facto parent. Bagrii therefore

had to prove that both Campbell and Chen “understood, acknowledged or

accepted that or behaved as though [she was] a parent of the child.” 19-A M.R.S.

§ 1891(3)(C); see Martin, 2021 ME 62, ¶ 29, 264 A.3d 1224. The court found

that she had not satisfied her burden of proof as to Chen.

[¶28] Although Bagrii argues that the statute should be applied

differently because of how many years she spent caring for the children at issue,

we are not persuaded to abandon or modify our recent decision in Martin. The

court’s findings regarding Campbell’s actions demonstrate how, after a child’s

legal parents end their relationship, one parent may try to exclude the other

from a parental role, sometimes to enable a stepparent to take over. The record

includes evidence that after bringing the children to Ukraine, Campbell

explicitly proposed to Bagrii that she replace Chen as the children’s mother, and

Bagrii readily agreed. Family court judges regularly encounter situations in

which one parent has a consuming goal, after a divorce or separation, to

displace the other parent in the life of the child, often in favor of a new partner

or spouse. Such conduct cannot be squared with the child’s best interest or the

fundamental constitutional rights of the other parent, see Martin, 2021 ME 62, 14

¶ 29, 264 A.3d 1224, if that parent is able and willing to exercise parental rights

and responsibilities cooperatively and safely.2 Moreover, a statute provides

that “[n]either parent has any rights paramount to the rights of the other with

reference to any matter affecting their children.” 19-A M.R.S. § 1651 (2025). It

follows from that precept that neither parent has any inherent right to consent

to a third party becoming a de facto parent over the objection of the other

parent. Chen has done nothing that would justify a court order compelling her

to share parental rights and responsibilities with Bagrii, whom she had never

even met before these proceedings. For us to alter our Martin analysis as Bagrii

asks would validate and even incentivize conduct like Campbell’s, which would

be contrary to the purposes of our statutes governing parental rights and

responsibilities, see supra n.2, and would raise constitutional concerns.

2Several of the statutory best interest factors favor a parent who promotes the other parent’s active involvement in the child’s upbringing. See 19-A M.R.S. § 1653(3)(H), (I), (J) (2025) (requiring consideration of “[t]he capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access,” “[t]he capacity of each parent to cooperate or to learn to cooperate in child care,” and “[m]ethods for assisting parental cooperation and resolving disputes and each parent’s willingness to use those methods”). The Legislature has made clear the shared legal rights and responsibilities of children’s biological parents, stating that “except when a court determines that the best interest of a child would not be served, it is the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.” Id. § 1653(1)(C). “The parents are the joint natural guardians of their minor children and are jointly entitled to the care, custody, control, services and earnings of their children. Neither parent has any rights paramount to the rights of the other with reference to any matter affecting their children.” 19-A M.R.S. § 1651 (2025); see also 19-A M.R.S. § 1652 (2025) (establishing a parent’s obligation to provide financial support for a child). 15

[¶29] Nonetheless, the dissent would overrule Martin and remand the

matter for a full hearing on Bagrii’s complaint, despite the court’s undisputed

findings that Bagrii had not seen the children for more than a year before she

filed her complaint and that the children did not wish to see her. See Dissenting

Opinion ¶ 62. These findings, and the guardian ad litem’s report recommending

against allowing Bagrii contact with the children due in part to a risk posed by

one of her children, strongly undermine Bagrii’s position that the trial court’s

application of the rule we announced in Martin is unfair and requires a remand.

[¶30] The dissent’s emphasis on the best interest of the child is

well-taken, but enabling a child to maintain a connection with a third party to

whom the child has become emotionally attached need not result in the

permanent infringement of constitutional parental rights that an award of

de facto parent status entails. See Dissenting Opinion ¶¶ 47, 50-51; Pitts v.

Moore, 2014 ME 59, ¶ 27, 90 A.3d 1169 (“[T]he establishment of parental rights

is no less permanent than the termination of parental rights . . . .”). Maine’s

statute on parental rights and responsibilities permits a court to “award

reasonable rights of contact with a minor child to a 3rd person.” 19-A M.R.S.

§ 1653(2)(B) (2025). Rights of contact are not necessarily permanent and can

be crafted to diminish over time and terminate. Here, if the children had wished 16

to see Bagrii, and if either parent agreed that she should have reasonable

contact with the children, an award of some contact for some period might have

been justified. See id.

[¶31] In arguing that the court erred in dismissing her complaint, Bagrii

points out that the burden to establish standing is lower than the burden to

establish de facto parentage. However, the difference lies in the standard of

proof, not in the elements that must be proved. See Davis, 2018 ME 72, ¶ 26,

186 A.3d 837. If a party cannot establish each element of de facto parentage by

a preponderance of the evidence for purposes of standing, the party necessarily

will be unable to establish de facto parent status by clear and convincing

evidence. See id.

B. Review of the Findings of the Trial Court

[¶32] We turn to whether the court erred in finding that Chen had not

explicitly or implicitly consented to Bagrii’s assumption of a parental role with

respect to Campbell and Chen’s two children. When, as here, the court holds an

evidentiary hearing on the issue of standing, the court must find facts by a

preponderance of the evidence. See id. ¶¶ 15-16, 26. We review the findings of

the court for clear error. Martin, 2021 ME 62, ¶ 24, 264 A.3d 1224. Because

Bagrii had the burden of proof, we will not vacate the trial court’s judgment 17

unless the record compels a finding in Bagrii’s favor on each element of

standing. See In re Child of Philip S., 2020 ME 2, ¶ 14, 223 A.3d 114; see also

19-A M.R.S. § 1891(2)(C), (3).

[¶33] The trial court found, with evidentiary support, that Chen did not

want her children to be separated from her and that she did not know where

they were after Campbell ceased meaningful communication with her in 2015.

Given these facts, the court was not compelled to find that Chen “understood,

acknowledged or accepted that or behaved as though [Bagrii was] a parent of

the child.” 19-A M.R.S. § 1891(3)(C). Accordingly, the court did not err in

dismissing Bagrii’s complaint for lack of standing under the Maine Parentage

Act.

C. Parens Patriae

[¶34] Bagrii lastly seeks to have Maine courts exercise their parens

patriae authority under the common law. In doing so, Bagrii misses the point

of our holding in Martin. We held that constitutional due process principles

require a putative de facto parent to “prove the elements of section 1891(3)(C)

as to a legal parent who appears and objects to the de facto parentage petition.”

Martin, 2021 ME 62, ¶¶ 25, 29, 264 A.3d 1224 (footnote omitted). Neither we

nor the District Court have any greater authority to act in contravention of due 18

process in exercising our “parens patriae authority on behalf of the child,” Davis

v. Anderson, 2008 ME 125, ¶ 19, 953 A.2d 1166 (quotation marks omitted), than

we would in exercising our authority under the Maine Parentage Act. Because

due process requires proof that Bagrii’s relationship with the children was

fostered or supported by Chen and the trial court found such proof lacking, we

affirm the judgment dismissing Bagrii’s complaint.3

The entry is:

Judgment affirmed.

DOUGLAS, J., with whom STANFILL, C.J., and CONNORS, J., join, dissenting.

[¶35] I disagree with the Court’s resolution of this case and therefore

respectfully dissent. The purpose of a standing requirement is “to ensure that

only legitimate cases of de facto parenthood proceed.” Young v. King, 2019 ME

78, ¶ 25, 208 A.3d 762 (Jabar, J., concurring). Bagrii presents such a case and

has met the threshold standing requirement in the Maine Parentage Act of

demonstrating that she had “fully and completely undertaken a permanent,

Because Campbell has prevailed on appeal, we do not address his argument—raised in case of 3

remand—that the trial court should have admitted additional evidence regarding an investigation by the Department of Health and Human Services. 19

unequivocal, committed and responsible parental role” in the lives of the

children. 19-A M.R.S. § 1891(3) (2025).

[¶36] For over five and one-half years Bagrii and her husband, John

Campbell, “formed a family” that included her two children from a prior

marriage and his two children—ages twenty-one months and six months,

respectively. The District Court found that Bagrii “was [the children’s] parent

. . . and acted accordingly: making sure their needs were met and caring for

them on a daily basis, including full time care at times when [Campbell] was

away.” Bagrii nurtured the children and attended to their needs from the

outset, even breastfeeding them when they were infants. Over the years she

cooked their meals, bathed them, put them to bed, read them bedtime stories,

helped them with homework, arranged their medical appointments, brought

them for haircuts, and took them shopping—all the things that committed,

responsible, and caring parents naturally do for their children. The children

called Bagrii “Mom.” They knew and interacted regularly (albeit via Skype)

with Bagrii’s parents in Ukraine. The District Court found by a preponderance 20

of the evidence4 that Bagrii had a “bonded relationship with the children and

that a continuing relationship would be in their best interest.”

[¶37] Despite effectively meeting all other requirements in 19-A M.R.S.

§ 1891(3),5 the court denied standing, ruling that “[b]ecause both [Campbell]

and [the biological mother] appeared and objected to [Bagrii’s] petition, she

must prove that both parents ‘fostered or supported’ a parental relationship

with [the children] and that they both ‘understood, acknowledged or accepted

that or behaved as though’ [Bagrii] was the children’s parent.”

[¶38] In so ruling, the court was following our decision in Martin v.

MacMahan, which interpreted section 1891(3)(C)’s requirement that the

bonded relationship between a child and a person claiming de facto parent

status be “fostered or supported by another parent,” 19-A M.R.S. § 1891(3)(C),

to mean, as applied here, that both Campbell and the children’s biological

mother must have consented, either expressly or impliedly, to the formation of

4The Parentage Act provides that courts determine standing based on “whether the person seeking to be adjudicated a de facto parent has presented prima facie evidence of the requirements set forth in [section 1891(3)].” 19-A M.R.S. § 1891(2)(C) (2025) (emphasis added). This Court, however, now requires a higher quantum of proof to support standing, namely proof by a preponderance of evidence. Davis v. McGuire, 2018 ME 72, ¶ 26, 186 A.3d 837; see also infra n.17.

The District Court also found by a preponderance of the evidence that Bagrii “resided with [the 5

children] for a ‘significant period of time,’” see 19-A M.R.S. § 1891(3)(A), and “engaged in consistent caretaking of [the children],” see id. § 1891(3)(B). As noted above, the court further found that she “has a bonded relationship with the children,” see id. § 1891(3)(C); and that “a continuing relationship would be in their best interest,” see id. § 1891(3)(E). 21

the relationship.6 Martin v. MacMahan, 2021 ME 62, ¶ 29, 264 A.3d 1224 (“To

hold otherwise would potentially allow the unilateral actions of one legal

parent to cause an unconstitutional dilution of another legal parent’s rights.”).

[¶39] Bagrii invites us to reconsider Martin’s interpretation of section

1891(3)(C), which she contends is contrary to the statute’s plain language. The

Court has declined to do so, saying that Martin’s interpretation “raises fewer

constitutional issues” and guards against the prospect that one parent “may try

to exclude the other from a parental role, sometimes to enable a stepparent to

take over.” Court’s Opinion ¶¶ 26, 28 (quotation marks omitted). I would

accept the invitation to revisit Martin because, in my view, its interpretation of

section 1891(3)(C) is contrary to the statute’s plain language, inconsistent with

legislative policies central to the Maine Parentage Act, and unnecessary to avoid

constitutional infirmity.7

6 Martin itself did not involve the issue of standing, which apparently had been agreed to by the parties at trial. See Martin v. MacMahan, 2021 ME 62, ¶ 13, 264 A.3d 1224. The statutory elements in section 1891(3)(C) apply to both the threshold issue of standing and the ultimate determination on the merits, with the latter requiring proof by clear and convincing evidence. 19-A M.R.S. § 1891(2)(C), (3).

7 Even though Martin was decided only four years ago, the doctrine of stare decisis should not preclude revisiting the case. See Finch v. U.S. Bank, N.A., 2024 ME 2, ¶¶ 41-47, 307 A.3d 1049 (identifying concisely five factors for determining whether overruling a prior decision is warranted: (1) whether the decision is consistent with the express language of the statute and our long standing legal principles; (2) whether the decision is contrary to the weight of authority in other jurisdictions; (3) whether the decision is workable or produces a logical result; (4) whether revising the decision will upset settled expectations; and (5) whether the decision promotes sound public policy). Without undertaking a full-fledged stare decisis analysis here, I note the following. With respect to the first 22

A. Statutory Considerations

1. Plain Language

[¶40] Martin’s interpretation of section 1891(3)(C) is obviously at odds

with the Act’s plain language. Section 1891(3)(C) requires a person seeking

de facto parent status to demonstrate that

[a] bonded and dependent relationship has been established between the child and the person [claiming de facto parent status],

factor, as discussed herein, Martin’s interpretation of section 1891(3)(C) is at odds with the statute’s plain language. As to the second factor, there is a division of authority on the question of whether both parents must have consented to the relationship between the putative de facto parent and child, but a number of courts as well as family law scholars and other authorities do not support such a position. Compare E.N. v. T.R., 255 A.3d 1, 31 (Md. 2021) (holding that consent of both parents for a de facto parent relationship is constitutionally required); K.W. v. S.L., 157 A.3d 498, 507 (Pa. Super. Ct. 2017) (reversing trial court’s finding that a third party in loco parentis had standing where only one legal parent consented to the relationship), with In re L.J.M., 476 P.3d 636, 645 (Wash Ct. App. 2020) (interpreting the state’s de facto parentage statute to require consent of only one parent); K.A.F. v. D.L.M., 96 A.3d 975, 982-983 (N.J. Super Ct. App. Div. 2014) (holding where at least one “legal parent” of a child consents, the third party has standing to pursue a claim for a psychological parent relationship); Douglas NeJaime, Parents in Fact, 91 U. Chi. L. Rev. 513, 544 (2024) (“The requirement that a legal parent consented to the de facto parent’s formation of a parent-child relationship makes less sense, from a constitutional perspective, as we begin to see the de facto parent simply as a parent—like any other parent.”); Jeffery A. Parness, The Constitutional limits on Custodial and Support Parentage by Consent, 56 Idaho L. Rev. 421, 442-43 (2020) (interpreting the “another parent” language from the Uniform Parentage Act’s de facto parentage statute to not require consent of all existing legal parents); Jessica Feinberg, The Boundaries of Multi-Parentage, 75 SMU L. Rev. 307, 349 (2022) (explaining “due to the paramount importance of children’s best interests, it is neither necessary nor desirable for parentage establishment through equitable parenthood doctrines to require the express consent of each of the existing legal parents”). The Uniform Parentage Act (2017) requires only that “another parent of the child fostered or supported the bonded and dependent relationship.” Unif. Parentage Act § 609, 9B U.L.A. 80 (2017). With respect to the remaining factors, reconsidering Martin’s interpretation of section 1891(3)(C) would produce a workable, reasonable, and logical result by re-aligning standing requirements with their intended purpose—to screen out unfounded claims—and allow consideration of legitimate claims on their merits. Reading section 1891(3)(C) as plainly written and intended would not upset settled expectations or reliance interests, particularly given that Martin was so recently decided. Further, it would promote rather than impede policies adopted by the Legislature in the Maine Parentage Act as I discuss here. 23

the relationship was fostered or supported by another parent of the child and the person and the other parent have understood, acknowledged or accepted that or behaved as though the person is a parent of the child.

19-A M.R.S. § 1891(3)(C) (emphasis added). There is no ambiguity here. The

phrases “another parent” and “the other parent” clearly refer to a single

individual—one parent. The Legislature clearly intended that a putative

de facto parent satisfies the “parental support” requirement in section

1891(3)(C) by demonstrating that one of the legal parents—"another parent”—

of the child at issue had fostered or supported the parent-child relationship.

See Wawenock, LLC v. Dep’t of Transp., 2018 ME 83, ¶ 7, 187 A.3d 609 (“The first

and best indicator of legislative intent is the plain language of the statute

itself.”). Martin’s interpretation not only conflicts with the statute’s plain

language but it is also out of sync with legislative policies embedded in the Act.

2. Legislative Policies

[¶41] When it comes to setting policy in the area of family law, we have

stated unequivocally that in light of “the evolving compositions of families,” we

look to the Legislature because “[p]arenthood is meant to be defined by the

Legislature, steeped as it is in matters of policy requiring the weighing of

multiple viewpoints.” Pitts v. Moore, 2014 ME 59, ¶ 18, 90 A.3d 1169

(emphasizing “again” that the issue of defining parentage, and in particular 24

de facto parentage, “would be best addressed by the Legislature”). In 2016, the

Legislature enacted the Maine Parentage Act, “an updated, comprehensive

statutory framework for determining a child’s legal parentage.” L.D. 1017,

Summary (127th Legis. 2015); see P.L. 2015, ch. 296 (effective July 1, 2016)

(codified at 19-A M.R.S. §§ 1831 et seq.) The Act establishes de facto parent

status as one of eight discrete types of legal parentage, all standing in parity

with one another. See 19-A M.R.S. § 1851 (2025); Pitts, 2014 ME 59, ¶ 30, 90

A.3d 1169.8 Reading Martin’s requirement for the second parent’s consent into

section 1891(3)(C)—especially as the sole basis for denying standing, as was the

case here—conflicts with two important policy objectives reflected in the

Legislature’s express recognition, and adoption, of de facto parenthood.

8 1851. Establishment of parentage

Parentage may be established by:

1. Birth. Giving birth to the child, except as otherwise provided in subchapter 8; 2. Adoption. Adoption of the child pursuant to Title 18-C, Article 9; 3. Acknowledgement. An effective voluntary acknowledgement of parentage under subchapter 3; 4. Presumption. An unrebutted presumption of parentage under subchapter 4; 5. De facto parentage. An adjudication of de facto parentage under subchapter 5; 6. Genetic parentage. An adjudication of genetic parentage under subchapter 6; 7. Assisted reproduction. Consent to assisted reproduction under subchapter 7; and 8. Gestational carrier agreement. Consent to a gestational carrier agreement under subchapter 8 by the intended parent or parents.

19-A M.R.S. § 1851 (2025). The Act defines “parentage” as “the legal relationship between a child and a parent as established in this chapter [61].” 19-A M.R.S. § 1832(14) (2025). 25

[¶42] First, it diminishes the status of de facto parenthood itself as an

independent ground for legal parentage. A person claiming de facto parent

status is not just any third party seeking “to obtain parental rights through

litigation[] over the objection[] of [a] [legal] parent[].” Martin, 2021 ME 62,

¶ 25, 264 A.3d 1224 (quotation marks omitted). The Legislature has

determined that, for compelling policy reasons that I discuss here, individuals

who satisfy the requirements of section 1891(3) acquire permanent, legal

parental status with respect to a child—a status that stands on “equal footing”

with a child’s other legal parents. See 19-A M.R.S. § 1853(1) (2025) (“Unless

parental rights are terminated, parentage established under this chapter

applies for all purposes, except as otherwise specifically provided by other law

of this State.”); Pitts, 2014 ME 59, ¶ 30, 90 A.3d 1169 (“A determination that a

person is a de facto parent means that he or she is a parent on equal footing

with a biological or adoptive parent, that is to say, with the same opportunity

for parental rights and responsibilities.”).

[¶43] Thus, “once a party is determined to be a de facto parent, he or she

has the same fundamental rights as the biological or adoptive parent,” In re K.S.,

2014 ME 71, ¶ 6, 93 A.3d 687, and is “a parent for all purposes,” Pitts, 2014 ME

59, ¶ 32, 90 A.3d 1169. As applied here, Martin’s interpretation of section 26

1891(3)(C) effectively “elevates the rights of the biological [parent] at a time

when . . . the complexities of the modern family render biological ties less

relevant in identifying familial relationships,” id. ¶ 52 (Jabar, J., concurring), and

conflicts with clear legislative policy to the contrary. When Martin’s

second-parent-consent requirement operates as the only basis for denying

standing, it stifles full consideration of the merits of a de facto parentage claim.

[¶44] Second, it negates the policy of protecting a child’s welfare

achieved by preserving a stable, psychologically dependent, emotionally

significant relationship that has formed with the person functioning as the

child’s parent in an established family unit. De facto parentage is a species of

functional parenthood, which is based not on a biological connection but rather

on the actual, day-to-day functioning of a parent figure from which a “bonded

and dependent relationship” develops. 19-A M.R.S. § 1891(3)(C); see V.C. v.

M.J.B., 748 A.2d 539, 550 (N.J. 2000) (noting that “[a]t the heart of [de facto]

parent cases is a recognition that children have a strong interest in maintaining

the ties that connect them to adults who love and provide for them”); Courtney

G. Joslin & Douglas NeJaime, How Parenthood Functions, 123 Colum. L. Rev. 319,

329-30 (2023) (providing examples of functional parent doctrines, including

de facto parents); Richard F. Storrow, Parenthood by Pure Intention: Assisted 27

Reproduction and the Functional Approach to Parentage, 53 Hastings L.J. 597,

666 (2002) (explaining that “[a] [de facto] parent is one who, on a continuing,

day-to-day basis, through interaction, companionship, interplay, and mutuality,

fulfills the child’s psychological needs for a parent” (quotation marks

omitted)).9

[¶45] Severing a “bonded and dependent” relationship can prove

emotionally and psychologically damaging to the child. See Pitts, 2014 ME 59,

¶ 29, 90 A.3d 1169 (recognizing that a central component of de facto parentage

law rests upon the determination that the “child’s life would be substantially

and negatively affected if the person who has undertaken a permanent,

unequivocal, committed, and responsible parental role in that child’s life is

removed from that role”); Roth v. Weston, 789 A.2d 431, 445 (Conn. 2002)

(noting “when a person has acted in a parental-type capacity for an extended

period of time, becoming an integral part of the child’s regular routine, that

child could suffer serious harm should contact with that person be denied or so

9 See also, NeJaime at 545; Feinberg at 320-323; Joanna L. Grossman, Constitutional Parentage, 32

Const. Comment. 307, 333-40 (2017); Richard F. Storrow, Parenthood by Pure Intention: Assisted Reproduction and the Functional Approach to Parentage, 53 Hastings L.J. 597, 640 (2002) (“For some time now, courts and commentators have developed the concept of functional parenthood as a way to recognize the important relationships children often forge with individuals who function as their parents but who do not have that legal status.”). 28

limited as to seriously disrupt that relationship”).10 Preservation of such a

relationship is at the heart of the legislative policy endorsing de facto

parenthood as an independent ground of legal parentage. 11

[¶46] From both a policy and a common-sense perspective, the

requirement of second-parent consent does not, as a matter of fact, bear upon

the assessment of whether a person claiming de facto parent status actually

functioned as a parent as required by sections 1891(3)(A), (B), and (D). Nor is

it relevant to the issue of whether the claimant and the child have developed a

10 See also C.C.R.S. v. T.A.M., 892 P.2d 246, 258 (Colo. 1995) (cautioning that disrupting emotional

bonds between a child and a psychological parent “would likely prove devastating to the child and would result in long-term, adverse psychological effects on the child”); Youmans v. Ramos, 711 N.E.2d 165, 173-74 n.20 (Mass. 1999) (recognizing “a child’s vulnerability when the bonds with an adult who acts as a de facto parent are broken”: “The damage to the child, who cannot understand what is happening, from breaking these bonds is something which even competent psychiatrists may be unable to predict . . . . [S]uch a breach should not be permitted lightly at the request of [a parent] . . . who [herself] created the unfortunate situation”); V.C. v. M.J.B., 748 A.2d 539, 552 (N.J. 2000) (explaining that “the ending of the relationship between the legal parent and the third party does not end the bond that the legal parent fostered and that actually developed between the child and the [de facto] parent”).

The importance of preserving such relationships is further underscored by the Act’s express 11

endorsement of a policy embracing the potential for more than two parents. The Act provides in section 1853(2):

2. Preservation of parent-child relationship. Consistent with the establishment of parentage under this chapter, a court may determine that a child has more than 2 parents.

19-A M.R.S. § 1853(2) (2025). An adjudication of de facto parentage in a third party certainly affects the rights of existing legal parents, see Pitts v. Moore, 2014 ME 59, ¶ 33, 90 A.3d 1169 (recognizing that a “parental rights order may be cumbersome in matters in which there are more than two legal parents”), but it is not a zero-sum determination, see E.N., 255 A.3d at 44 (Biran, J., dissenting) (clarifying that even in cases where the court recognizes a de facto parent, “the nonconsenting legal parent remains a parent to the child”). It is not tantamount to terminating the parental rights of an existing legal parent. 29

“bonded and dependent relationship.” 19-A M.R.S. § 1891(3)(C); see In re L.J.M.,

476 P.3d 636, 644 (Wash. Ct. App. 2020) (concluding that the “‘parental

support’ requirement has nothing to do with the child’s relationship with [the]

other genetic parent . . . [t]he only requirement is that one parent – another

parent – support the [putative de facto parent’s] relationship with the child”

(quotation marks omitted)); K.A.F. v. D.L.M., 96 A.3d 975, 981, 983 (N.J. Super.

Ct. App. Div. 2014) (holding that it is “sufficient if only one of the legal custodial

parents . . . has voluntarily created [a] [de facto parent] relationship” with the

child because “[f]rom the perspective of simple logic, 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”); see also Unif. Parentage Act § 609, cmt, 9B U.L.A.

80 (2017) (“In most states, if an individual can establish that he or she has

developed a strong parent-child relationship with the consent and

encouragement of a legal parent, the individual is entitled to some parental

rights and possibly some parental responsibilities.” (emphasis added)).

[¶47] This is not to suggest that a second legal parent’s support of or

opposition to another’s claim of de facto parentage is immaterial to the court’s

ultimate determination. On the contrary, it is certainly relevant to, and should 30

be considered in connection with, the determination of what is in the best

interest of the child and whether “continuing [the] relationship between the

[putative de facto parent] and the child is in the best interest of the child.”12

19-A M.R.S. § 1891(3)(E). It is in that context—consideration of the best

interest factor in section 1891(3)(E)—that the concern expressed by the Court

that one parent “may [be] try[ing] to exclude the other from a parental role”

should be assessed, as even the Court seems to tacitly acknowledge. See Court’s

Opinion ¶ 28 (stating that “[s]uch conduct cannot be squared with the child’s

best interest . . . if [the other] parent is able and willing to exercise parental

rights and responsibilities cooperatively and safely”). Consent of the other legal

parent, whether explicit or implicit, should not be superimposed on section

1891(3)(C), as it was here, to eclipse all other statutory standing factors to

prevent adjudication of an otherwise legitimate de facto parentage claim.

12 This may depend upon any number of factors in a particular case, including, for example, the relationship of the parties, the overall family dynamics, and the particular needs of the child. Indeed, the specific concerns about parental discord or alienation should be considered, as the Court suggests, in evaluating whether it is in the best interests of the child to adjudicate a claimant as a de facto parent, continue the relationship, and if so, on what terms. Court’s Opinion n.2; see C.E.W. v. D.E.W., 2004 ME 43, ¶ 10, 845 A.2d 1146 (reiterating that “as a corollary of a court’s equitable jurisdiction to determine a child’s best interest and award parental rights and responsibilities, it may . . . entertain an award of parental rights and responsibilities to a de facto parent”). 31

B. Constitutional Considerations

[¶48] The Court considers the standing requirement in cases such as this

one to be a bulwark against attempts to cause “‘an unconstitutional dilution of

another legal parent’s rights’”—rights that “may be disrupted if a person must

expend resources to defend against a third party’s claim of de facto

parenthood.” Court’s Opinion ¶¶ 22, 26 (quoting Martin, 2021 ME 62, ¶ 29, 264

A.3d 1224). While I agree that existing legal parents should be protected

against groundless claims, the Act, as written, provides sufficient standing

safeguards and the Constitution does not mandate the more restrictive reading

reaffirmed by the Court today.

[¶49] There is no question that we have recognized that parents have a

“fundamental liberty interest protected by the Due Process Clause [of the

Fourteenth Amendment]” to “control [their children’s] upbringing.” Martin,

2021 ME 62, ¶ 25, 264 A.3d 1224 (quoting Rideout v. Riendeau, 2000 ME 198,

¶ 18, 761 A.2d 291); see, e.g., Lamkin v. Lamkin, 2018 ME 76, ¶ 12, 186 A.3d

1276; Davis v. McGuire, 2018 ME 72, ¶¶ 13-14, 186 A.3d 837; Curtis v. Medeiros,

2016 ME 180, ¶ 13, 152 A.3d 605; Dorr v. Woodard, 2016 ME 79, ¶¶ 11-12, 140

A.3d 467; Conlogue v. Conlogue, 2006 ME 12, ¶ 12, 890 A.2d 691; Davis v. 32

Anderson, 2008 ME 125, ¶ 18, 953 A.2d 1166; C.E.W. v. D.E.W., 2004 ME 43, ¶ 14,

845 A.2d 1146; Philbrook v. Theriault, 2008 ME 152, ¶ 17, 957 A.2d 74.

[¶50] We have also acknowledged, however, that this due process right

is “not . . . absolute.” Rideout, 2000 ME 198, ¶ 19, 761 A.2d 291 (“The Due

Process Clause is not an impenetrable wall behind which parents may shield

their children.”); see also Pitts, 2014 ME 59, ¶ 12, 90 A.3d 1169 (noting that the

“constitutional liberty interest in family integrity is not . . . absolute” (quotation

marks omitted)). Parental rights may be terminated outright if a parent is

found to be unfit and it is in the child’s best interest to do so. See 22 M.R.S.

§ 4050, 4055 (2025); Adoption of Isabelle T, 2017 ME 220, ¶ 32, 175 A.3d 639;

In re Scott S., 2001 ME 114, ¶¶ 14, 17-21, 775 A.2d 1144; In re Christmas C.,

1998 ME 258, ¶ 11, 721 A.2d 629; see also Santosky v. Kramer, 455 U.S. 745,

769-70 (1982).

[¶51] Moreover, in the context of a contested parental rights or

guardianship proceeding, a parent’s constitutional liberty interest in

controlling a child’s upbringing commonly yields to a judicial determination of

what is in the best interests of the child. See, e.g., Jacobs v. Jacobs, 507 A.2d 596,

598-600 (Me. 1986); Nadeau v. Nadeau, 2008 ME 147, ¶ 38-41, 957 A.2d 108;

Pearson v. Wendell, 2015 ME 136, ¶ 30-31, 125 A.3d 1149. In these 33

circumstances, the court is exercising its parens patriae powers and “put[ting]

itself in the position of a wise, affectionate, and careful parent and mak[ing]

determinations for the child’s welfare, focusing on what is best for the interest

of the child and not on the needs or desires of the parents.” C.E.W., 2004 ME 43,

¶ 10, 845 A.2d 1146 (quotation marks omitted).

[¶52] In considering the reach of this constitutional due process

limitation on legislative authority to define de facto parentage, it is important

to take into account not only the context in which the right is being invoked but

also the very nature and source of the right itself. Cf. Bouchard v. Dep’t of Pub.

Safety, 2015 ME 50, ¶ 8, 115 A.3d 92 (holding that one challenging the

constitutionality of a statute “bears a heavy burden” and “must demonstrate

convincingly that the statute and the Constitution conflict” (quotation marks

omitted)). In that regard, it is significant that our jurisprudence espousing a

parent’s Fourteenth Amendment liberty interest in raising a child rests

predominantly, if not exclusively, upon the foundational United States Supreme

Court case of Troxel v. Granville, 530 U.S. 57, 65 (2000). See, e.g., Rideout, 2000

ME 198, ¶ 7, 761 A.2d 291; Pitts, 2014 ME 59, ¶¶ 10-11, 90 A.3d 1169; Conlogue,

2006 ME 12, ¶ 7, 890 A.2d 691; Davis, 2018 ME 72, ¶ 13, 186 A.3d 837; Martin, 34

2021 ME 62, ¶ 25, 264 A.3d 1224. Close examination of Troxel is therefore

warranted.

[¶53] Troxel v. Granville, which some have viewed as “an extremely

narrow decision,” see Conover v. Conover, 146 A.3d 433, 444 (Md. 2016), did not

involve an instance of parental recognition; it was decided in a wholly different

context. In Troxel, the paternal grandparents sought court-ordered visitation

with their grandchildren over the objection of the mother. 530 U.S. at 60. Their

petition was filed pursuant to a Washington state statute that provided that

“[a]ny person may petition the court for visitation rights at any time” so long as

such visitation was in the child’s best interest. Id. at 61 (quotation marks

omitted). The grandparents had not served in a primary caretaking role and

were merely seeking additional visitation. Id.

[¶54] There were six separate opinions in Troxel, with no majority and

three dissents. Justice O’Connor, writing for a plurality of the Court, held that,

as applied,13 the “breathtakingly broad,” nonparental-visitation statute at issue

in Troxel violated a parent’s due process rights because it “effectively

permit[ed] any third party seeking visitation to subject any decision by a parent

13 The plurality also clarified that it “would be hesitant to hold that specific nonparental visitation

statutes violate the Due Process Clause as a per se matter.” Troxel v. Granville, 530 U.S. 57, 73 (2000) (emphasis added). 35

concerning visitation of the parent’s children to state-court review.” Id. at 67.

Rather than announce broadly applicable constitutional principles, the holding

in Troxel was narrow and case-specific.

[¶55] Two of the dissenting opinions in Troxel underscored this point;

they emphasized that the parental due process liberty interest under the

Fourteenth Amendment is not absolute and cautioned against an overly broad

application. Id. at 88, 91 (Stevens, J., dissenting); id. at 98 (Kennedy, J.,

dissenting). Justice Stevens expressed concern about the potential effect of the

plurality’s decision on the interests of children in cases involving “a

once-custodial caregiver,” particularly in light of “[t]he almost infinite variety

of family relationships that pervade our ever-changing society.” Id. at 85, 90;

see also id. at 88 (“A parent’s rights with respect to her child have thus never

been regarded as absolute, but rather are limited by the existence of an actual,

developed relationship with a child, and are tied to the presence or absence of

some embodiment of family.”). Justice Kennedy noted that “a fit parent’s right

vis-a-vis a complete stranger is one thing; her right vis-a-vis another parent or

a de facto parent may be another.” Id. at 100-01.

[¶56] Bagrii is not just any third party seeking “to obtain parental rights

through litigation, over the objections of parents,” to someone else’s child. 36

See Martin, 2021 ME 62, ¶ 25, 264 A.2d 1224 (quoting Philbrook, 2008 ME 152,

¶ 17, 957 A.2d 74); E.N. v. T.R., 255 A.3d 1, 44 (Md. 2021) (Biran, J., dissenting)

(noting that when addressing a claim of de facto parentage, “we are not dealing

here with any third party” but one who “would also be a legal parent of the

child” (quotation marks and alteration omitted)). She was not a casual or

occasional caretaker. Her involvement with the children did not arise out of

externally imposed obligations, such as a court-ordered guardianship or a

foster care placement. Nor did she have an independent, preexisting, familial

connection to the children, such as a grandparent or other relative who was not

part of the nuclear family.

[¶57] The District Court found that Bagrii actually “was [a] parent” to the

children, with whom she had developed a “bonded relationship.”14 Bagrii had,

in the words of Justice Stevens, an “actual, developed relationship” with the

children “tied to . . . [an] embodiment of family.” See Troxel, 530 U.S. at 88. And

14The Court attempts to minimize or deny the significance of Bagrii’s relationship with the children by referencing certain record evidence, including the guardian ad litem’s recommendation “against granting Bagrii contact with the children because the children did not want it and had disclosed physical abuse by Bagrii and inappropriate conduct by one of her children.” Court’s Opinion ¶ 19. While those may certainly be proper considerations for the court to weigh in determining the merits of Bagrii’s parentage claim or, if she were to prevail on the de facto parentage claim, the extent of her ongoing parental rights and responsibilities, they are inapposite to the issue of standing. The District Court already determined for purposes of standing that Bagrii had demonstrated by a preponderance of the evidence that she had developed a “bonded relationship” with the children and that continuation of the relationship was in their best interests. 37

the District Court expressly found for purposes of standing that it was in the

children’s best interest to continue the connection with her. See E.N., 255 A.3d

at 45 (Biran, J. dissenting) (“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.”).

[¶58] Troxel, therefore, neither requires nor justifies an inflexible, overly

expansive application of a parent’s Fourteenth Amendment due process rights

in this context. See In re Parentage of L.B., 122 P.3d 161, 178 (Wash. 2005)

(concluding that “Troxel does not establish that recognition of a de facto

parentage right infringes on the liberty interests of a biological or adoptive

parent”); Smith v. Guest, 16 A.3d 920, 930-31 (Del. 2011) (concluding that

Troxel had more limited applicability to a de facto parentage claim). Nor does

it “place any constitutional limitations on the ability of states to legislatively, or

through their common law, define a parent or family.” In re Parentage of L.B.,

122 P.3d at 178. Moreover, several additional reasons support a more

balanced, nuanced consideration of this due process liberty interest when

addressing a party’s standing to pursue a claim of de facto parentage. 38

[¶59] First, there is undoubtedly a compelling, counterbalancing interest

in preserving a “bonded and dependent” relationship that has formed between

a child and a person functioning as a parent and whom the child views as a

parent. Severing a secure, parental attachment can have traumatic, life-altering

consequences. See supra ¶ 45; E.N., 255 A.2d at 54 (Biran, J., dissenting); Jessica

Feinberg, The Boundaries of Multi-Parentage, 75 SMU L. Rev. 307, 351 (2022)

(“A wide body of social science research demonstrates that disrupting the

relationship between a child and someone who they view as a parent can result

in serious short- and long-term harm to the child.”); see also Pitts, 2014 ME 59,

¶¶ 12, 14-15, 90 A.3d 1169 (“[T]he rights of another person—the child—must

also be protected by the State.”) Moreover, a person asserting a claim of

de facto parenthood, if successful, “has the same fundamental rights as the

biological or adoptive parent.” In re K.S., 2014 ME 71, ¶ 6, 93 A.3d 687; see supra

¶¶ 42-43. Those rights remain inchoate until adjudicated; once declared,

however, the rights of a de facto parent would be entitled to equivalent

constitutional due process protection.15

Thus, the relationship between a child and a de facto parent may itself implicate interests of 15

constitutional dimension:

The more that we see de facto parents as parents, rather than as nonparent third parties, the more we might see de facto parents, as well as the children they are raising, as having constitutional interests in maintaining the parent-child relationship. We might begin to reason about the constitutional stakes of de facto 39

[¶60] Second, the Act’s requirements for establishing de facto parentage,

including section 1891(3)(C) as plainly written, are narrowly tailored and

provide clear standards and procedures to protect the rights of existing legal

parents. All legal parents must be joined as parties and served with the

pleadings and supporting affidavit.16 19-A M.R.S. §§ 1836, 1891(2)(A) (2025).

The standing requirements are strict. Persons claiming de facto parent status

must demonstrate that they have “fully and completely undertaken a

permanent, unequivocal, committed and responsible parental role in the child’s

life” by satisfying each of the constituent elements in section 1891(3)(C)—now,

by a preponderance of the evidence.17 19-A M.R.S § 1891(3); Davis, 2018 ME

parenthood not from the perspective of the objecting parent’s right to exclude but instead from the perspective of the functional parent’s right to parent—and the child’s right to maintain that parental relationship.

NeJaime at 553; see also Smith v. Guest, 16 A.3d 920, 931 (Del. 2011) (rejecting a challenge to Delaware’s de facto parentage statute, reasoning that “[t]he issue here is not whether the Family Court has infringed [the biological parent’s] fundamental parental right to control who has access to [the child] by awarding [the de facto parent] co-equal parental status [but] [r]ather . . . whether [the de facto parent] is a legal “parent” of [the child] who would also have parental rights to [the child]— rights that are co-equal to [the biological parent’s]”).

16 Martin references these provisions as further support for its conclusion that second-parent consent is constitutionally required. 2021 ME 62, ¶ 30, 264 A.3d 1224 (stating that this “conclusion is consistent with Maine’s de facto parentage statute, which requires ‘all parents and legal guardians of the child’ to be served with a de facto parentage filing” (quoting 19-A M.R.S. § 1891(2)(A)). I disagree. The statute’s requirement that existing parents and legal guardians be served with notice and given an opportunity to be heard is consistent with fundamental procedural due process protections; it neither presupposes nor requires the consent of existing legal parents or guardians as an element of a de facto parentage claim.

17 Despite the Act’s express requirement that standing be demonstrated by “prima facie evidence

of the requirements set forth in [section 1891(3)(C)],” 19-A M.R.S. § 1891(2)(C) (emphasis added), 40

72, ¶ 26, 186 A.3d 837. Once standing is demonstrated, a claimant then must

meet the higher burden of proving the same statutory elements by clear and

convincing evidence, 19-A M.R.S. § 1891(3)—the highest burden of proof in a

civil proceeding and the same burden that applies in actions to terminate

parental rights. See 22 M.R.S. § 4055. The numerous, and exacting, statutory

elements in section 1891(3) combined with the elevated burden of proof a

claimant must meet to establish de facto parentage provide sufficient

constitutional protections for existing legal parents. See Feinberg at 350-51;

E.N., 255 A.3d at 44 (Biran, J., dissenting).

[¶61] Finally, erecting an overly burdensome standing barrier is not only

unnecessary from a constitutional perspective but ignores the necessary

predicate required by both this Court and the Legislature for establishing

our decision in Davis v. McGuire held that the reference to “prima facie” evidence was “merely a temporal indicator that the standing requirement is to be determined preliminary to any ultimate adjudication of de facto parenthood” and that the proper quantum of proof at this stage was the higher, preponderance-of-the-evidence standard. 2018 ME 72, ¶¶ 22, 26, 186 A.3d 837 (emphasis added). I disagree with the characterization of “prima facie” evidence as “merely a temporal indicator.” Rather, it is clearly an explicit legislative determination as to the quantum of evidence considered appropriate to advance a claim to the merits—a lower level of proof consistent with the gatekeeping function of standing to winnow out frivolous or facially baseless claims. Davis’s rationale for stretching the statute’s language beyond its plain meaning was driven largely by the concern that “legal parents could face excessive exposure to unwarranted and ultimately unsubstantiated interference with their constitutionally protected parenting interest.” Id. ¶ 23. However, for the reasons discussed herein—including the overly expansive application of Troxel’s due process liberty interest our caselaw has afforded in this context—Davis’s interpretation raises the standing bar higher than constitutionally or practically necessary and, ironically, may invite more rather than fewer hearings on the question of standing, potentially increasing the “unwarranted” and “unsubstantiated interference” with “constitutionally protected parenting interest[s]” that Davis sought to avoid. 41

de facto parentage rights—litigating the claim. An adjudication of de facto

parent status itself presumes, indeed requires, litigation. See 19-A M.R.S.

§ 1891(2), (3) (codifying this Court’s approach to adjudicating de facto parent

claims). It would be pointless and illogical to recognize—as both this Court and

the Legislature have recognized—a legal ground of parentage that depends

upon judicial adjudication and then declare that requiring existing legal parents

to participate in that adjudication amounts to “disrupt[ing]” or infringing their

rights. See Court’s Opinion ¶ 22.

III. CONCLUSION

[¶62] The protections that the Act provides are constitutionally

sufficient without having to read section 1891(3)(C)’s “fostered or supported

by another parent” provision as the Court does here. Accordingly, I am inclined

to revisit—and overrule—Martin, particularly as it applies to the

determination of standing. I would vacate the District Court’s denial of standing

in this matter and remand for a determination of Bagrii’s claim of de facto

parent status on its merits.18

18 Since the District Court has already conducted a full evidentiary hearing, such a determination

could be made on the existing record. See Young v. King, 2019 ME 78, ¶ 13 n.4, 208 A.3d 762 (noting that courts may hold a single consolidated hearing addressing both standing and the merits in de facto parentage actions). I would leave to the District Court’s discretion whether a supplemental hearing is needed. 42

Cory R. McKenna, Esq. (orally), McKenna PLLC, Portland, for appellant Kateryna A. Bagrii

Erik T. Crocker, Esq. (orally), Farrell, Rosenblatt & Russell, Bangor, for cross- appellant John Campbell

Jie Chen did not file a brief

Newport District Court docket number FM-2021-132 FOR CLERK REFERENCE ONLY