MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2021 ME 62 Docket: Sag-21-18 Argued: July 13, 2021 Decided: December 14, 2021
Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
MARK R. MARTIN
v.
MARYLOU E. MACMAHAN
HORTON, J.
[¶1] Mark R. Martin appeals from judgments entered by the District
Court (West Bath, Raimondi, J.) establishing Dawn and James Ostrander as
de facto parents of two biological children of Martin and Marylou E. MacMahan;
allocating parental rights and responsibilities and child support among Martin,
MacMahan, and the Ostranders; and amending an existing divorce judgment
between Martin and MacMahan.1 Martin argues that that the court misapplied
the legal standards governing de facto parentage and made findings that were
not supported by evidence in the record, including by adopting a magistrate’s
findings in an interim order. We affirm the judgment establishing de facto
parentage, parental rights and responsibilities, and child support, but we vacate
1 We consolidated Martin’s appeals under the caption for the divorce matter. 2
the judgment amending the divorce judgment because it is inconsistent with
the judgment establishing parental rights and responsibilities, and we remand
so that the inconsistency can be corrected.
I. BACKGROUND
[¶2] The following facts and procedure are drawn from the procedural
record and findings made by the court that are supported by evidence admitted
at the final hearing.2 See Kilborn v. Carey, 2016 ME 78, ¶¶ 3, 16, 140 A.3d 461.
Martin and MacMahan are the biological parents of twins born in March 2014.
When the children were born, Martin and MacMahan lived in Arrowsic and did
not have a vehicle. Dawn Ostrander, MacMahan’s lifelong friend, drove
MacMahan to prenatal care appointments, drove the children home from the
hospital after they were born, and drove MacMahan and the children to
subsequent checkups. The Ostranders helped care for the children and
supplied the necessities of care, such as diapers, wipes, formula, and clothing.
[¶3] When the children were about four months old, Martin moved the
family to Kansas, believing—incorrectly—that he would have housing and
employment there. In Kansas, after staying a week with Martin’s mother and
2 The facts recited here do not include those that the court adopted from the magistrate’s interim
order without corroborative evidentiary support from the final hearing. See infra ¶ 20. 3
grandmother, the family moved to a motel and then started living out of a car.
While they were still in the motel, Martin began shoplifting DVDs to make
money. He was arrested in December 2014 and spent about a week in jail. After
his release from jail, his criminal case was resolved and he was placed on
probation until October 2015. He has generally remained in Kansas since then.
[¶4] When Martin went to jail, MacMahan and the children had no
money, housing, or means of transportation. Desperate, MacMahan called
Dawn Ostrander, who drove to Kansas, brought MacMahan and the children
back to Maine, and helped MacMahan find a place to live. The Ostranders
resumed providing MacMahan with the necessities of care for the children,
including diapers, wipes, formula, clothing, bassinets, and car seats.
[¶5] At first, the children stayed with the Ostranders on weekends and
for some overnights during the week. By April 2016, the children were living
primarily with the Ostranders, who provided for all aspects of their care.
Martin did not provide any support for the children during this time. On several
occasions between 2015 and early 2017, MacMahan, who was homeless at
times, told Martin that she needed help and asked him to come get the children.
He responded that he could not. In April 2016, when the children had just
turned two years old, the Ostranders began providing full-time care for them at 4
the request of a community organization concerned about MacMahan’s lack of
stable housing, and, with limited exceptions, the children have resided with the
Ostranders full-time ever since. Dawn Ostrander has enrolled both children in
speech therapy and has transported them to those sessions for several years.
[¶6] In June 2017, Martin came to Maine, believing that he had an
agreement with MacMahan that he would take custody of the children for some
period of time. When he arrived, MacMahan did not permit him to see the
children. Martin initiated a divorce action against MacMahan and then
returned to Kansas. Martin returned to Maine for a visit around Christmas in
2017; it was the first time he had seen the children since being arrested in
Kansas in December 2014.
[¶7] In an agreed-upon divorce judgment issued in January 2018, a
Family Law Magistrate (Kidman, M.) awarded shared parental rights to
MacMahan and Martin, granted primary residence to MacMahan, and set a
contact schedule that included a two-month visit with Martin in Kansas during
the summer of 2018. Meanwhile, although the children were spending some
weekends at MacMahan’s home, they were otherwise living with the
Ostranders. In April 2018, the Ostranders obtained a protection from abuse 5
order against MacMahan on behalf of the children.3 When Martin found out
about the protection order,4 he contacted the Ostranders, gave them temporary
legal authority over the children, and told them he would come to get the
children in June. Martin then moved to modify the divorce judgment, seeking
primary residence and sole parental rights.
[¶8] In June 2018, after the Ostranders filed petitions seeking
guardianship of the children, a Family Law Magistrate (Adamson, M.) held a
combined interim evidentiary hearing on Martin’s motion to modify the divorce
judgment and the Ostranders’ guardianship petitions. The magistrate then
issued an interim order in which she made extensive findings and set forth
detailed arrangements for the children’s visit with Martin in Kansas, including
that they were “to be returned to [Maine] according to the [divorce] [j]udgment
. . . on August 17, 2018”5 and that they were to be allowed to have contact with
the Ostranders while they were with Martin. The magistrate declined to
3 The protection order, which prohibited MacMahan from having any contact with the children, was based on the children’s report to the Ostranders of inappropriate behavior toward them by a member of MacMahan’s household. The protection order was dismissed in May 2019 on the Ostranders’ motion after MacMahan had ended her relationship with the person in question. 4 Martin later testified that the father of MacMahan’s other children called him in April 2018 and told him about the protection order and that this was when he first became aware that the children had been living with the Ostranders.
5According to the divorce judgment, Martin was to provide for the children’s transportation to Kansas; MacMahan was to provide for their transportation back to Maine. 6
otherwise modify the divorce judgment and issued no decision regarding the
Ostranders’ guardianship petitions.6
[¶9] Martin did not return the children to Maine in August 2018. He also
did not comply with the interim order’s requirement that he allow the
Ostranders to have contact with the children three times per week. In late
October 2018, after the Ostranders notified the court that they had not been
allowed to speak with the children for eight days, the court (Dobson, J.) held a
hearing and then authorized the Ostranders to pick up the children in Kansas
as soon as possible.
[¶10] The Ostranders drove to Kansas to pick up the children on
November 1, 2018; when they arrived, Martin told them they could not take the
children until noon the next day. They slept in their car that night before
returning to Maine with the children. The children have resided with the
Ostranders ever since.
[¶11] Martin saw the children for Christmas in 2018 and then for two
weeks in Kansas in the summer of 2019. He speaks with the children on the
6With respect to the guardianship petitions, however, the magistrate noted that “while [Martin] may be capable of caring for the children during [the summer 2018] visit, a strong bond has developed between the[] children and the [Ostranders], who have provided for their care for three years. [The Ostranders] are the only caregivers [the children] have truly known. The . . . [children] were delayed socially and developmentally when entering [the Ostranders’] care and have since flourished and received medical and other therapeutic care. It would jeopardize the [children’s] well-being to break this bond out of anger or spite.” 7
phone and over video chat. A court order would have permitted a visit in
Kansas during the summer of 2020, but restrictions related to the COVID-19
pandemic made that difficult. Martin suggested, in the alternative, that he
would come to Maine for a week-long visit, but after planning to do so, he
canceled the arrangements.
[¶12] Since 2016, the Ostranders have received a total of $100 in
financial support from Martin and $85 in financial support from MacMahan,
and they have received no state or federal financial aid in caring for the
children. According to the children’s teachers, the children are doing well
socially and academically, and the Ostranders are active and concerned
caretakers. The teachers have not had any contact with either Martin or
MacMahan. Martin agreed, during his testimony, that he never reached out to
the children’s teachers or health care providers because he “relied on [the
Ostranders] to keep [him] up to date on those things” and because he was
“relying on them to [exercise] the parental responsibilities for [his] children.”
[¶13] After returning to Maine with the children in November 2018, the
Ostranders filed a complaint and affidavit seeking a determination of de facto
parentage, parental rights and responsibilities, and child support. With the
agreement of the parties, the court found in May 2019 that the Ostranders had 8
demonstrated standing to proceed with the de facto parentage action. See
19-A M.R.S. § 1891(2) (2021); see also, e.g., Libby v. Estabrook, 2020 ME 71,
¶¶ 13-14, 234 A.3d 197.
[¶14] The court (Raimondi, J.) held a final, consolidated hearing on the
Ostranders’ guardianship petitions, their de facto parentage complaint, and
Martin’s motion to modify the divorce judgment. Over the course of two days
in September 2020, it heard testimony from, among other people, Martin,
MacMahan, the Ostranders, and the guardian ad litem. The court then issued
an order addressing both the Ostranders’ parentage complaint and Martin’s
motion to modify the divorce judgment.7 The order incorporated extensive
findings, which the court set forth in a separate document. In the middle of a
section of that document titled “FACTUAL HISTORY,” the court referred to
findings expressed by the magistrate in the June 2018 interim order and stated:
“After consideration of the evidence presented to this court at the hearing in
this matter, the court adopts those findings.” The court then restated, verbatim,
many of the findings expressed in the June 2018 interim order.
[¶15] In another section of the court’s order titled “LEGAL ANALYSIS,”
the court made additional findings specifically related to the elements of the
7 The court dismissed the Ostranders’ guardianship petitions as moot. 9
Ostranders’ de facto parentage claim, see 19-A M.R.S. § 1891(3) (2021), and
concluded that the Ostranders had met their burden to prove, by clear and
convincing evidence, that they are de facto parents of the children. Specifically,
the court made the following findings:
• The children have had regular contact with the Ostranders for their entire lives and have resided primarily with the Ostranders since 2016, see 19-A M.R.S. § 1891(3)(A);
• The Ostranders have engaged in caretaking for the children since before the children were born, consistently providing emotional, financial, educational, and medical support for the children on a day-to-day basis, see 19-A M.R.S. § 1891(3)(B);
• The Ostranders have provided the only stable parenting the children have known, and the children are deeply bonded to them, see 19-A M.R.S. § 1891(3)(C);
• The Ostranders have accepted responsibility for the children without expecting compensation, see 19-A M.R.S. § 1891(3)(D); and
• Remaining with the Ostranders is in the children’s best interests, see 19-A M.R.S. § 1891(3)(E).
The court also found that “MacMahan does not dispute that she fostered and
supported the relationship between the Ostranders and the children.” As to
Martin, the court found that he knew, by no later than April 2018, that the
children had been living with the Ostranders; that before then he either knew
or “turned a blind eye and chose not to know”; and that he had “abdicated his 10
financial and personal responsibility to care for the children and . . . continues
to do so.”
[¶16] Addressing parental rights and responsibilities, the court ordered,
inter alia, that the children’s primary residence would be with the Ostranders
and that parental rights would be shared among the Ostranders, Martin, and
MacMahan, with the Ostranders having final decision-making authority.
Accordingly, the court denied Martin’s motion to modify the divorce judgment,
declining to grant him sole parental rights and primary residence. Finally, the
court issued a child support order and amended some of the divorce judgment’s
provisions—including those for child support and for contact between Martin
and the children—to render the divorce judgment consistent with the
judgment setting forth parental rights and responsibilities and child support.8
[¶17] Without first moving for amended or additional findings, cf. M.R.
Civ. P. 52(b); Davis v. McGuire, 2018 ME 72, ¶ 2 n.2, 186 A.3d 837, Martin filed
this timely appeal. See 14 M.R.S. § 1901 (2021); M.R. App. P. 2B(c)(1).
The court made clear that its intent was to amend the divorce judgment to make it consistent 8
with the judgment establishing de facto parentage, parental rights and responsibilities, and child support. But although the judgment establishing parental rights and responsibilities provides that the children’s primary residence shall be with the Ostranders and awards specified rights of contact to Martin and MacMahan, the court did not amend the divorce judgment’s conflicting provision that the children’s primary residence shall be with MacMahan. We therefore vacate the amended divorce judgment and remand the matter to enable the court to resolve the conflict. See infra ¶ 36. 11
II. DISCUSSION
A. Adoption of Interim Findings
[¶18] Martin first argues that the court erred by incorporating findings
from the interim order into its final judgment. He relies primarily on 4 M.R.S.
§ 183(1)(E) (2021), which provides that “[i]nterim orders . . . are subject to
de novo review by a judge at the final hearing,” and M.R. Civ. P. 110A(b)(7),
which provides that “[a]n interim order does not constitute the law of the case,
and the issues may be decided de novo at the final hearing.” Although the
statute and rule both touch on the effect of a magistrate’s interim order, neither
governs the precise issue here, which is the proper treatment of specific
findings in an interim order by a court issuing a final judgment. Here, the court
held a two-day final hearing before adjudicating, in its final judgment, Martin’s
motion to modify the divorce judgment and the Ostranders’ parentage action.9
[¶19] Although the court stated that it was “adopt[ing]” the magistrate’s
findings, it also explained that it was doing so “[a]fter consideration of the
evidence presented to this court at the hearing in this matter.” On the record
before us, we are satisfied that the court viewed the evidence presented at the
final hearing as supporting the findings that the magistrate had made based on
9The magistrate had not addressed the Ostranders’ parentage petition at all; that petition was not filed until after the magistrate issued the interim order. 12
the testimony presented at the interim hearing.10 Martin contends otherwise,
but he did not ask the trial court to clarify its statement, reconsider its findings,
or alter or amend its judgment. See Adoption by Jessica M., 2020 ME 118, ¶ 16,
239 A.3d 633 (“The appellant bears the burden of providing an adequate record
upon which the reviewing court can consider the arguments on appeal.”
(quotation marks omitted)); cf. M.R. Civ. P. 52(b); 59(e).
[¶20] We agree with Martin that one of the court’s findings was clearly
erroneous because there was no evidence admitted at the final hearing to
support the finding that a caseworker concluded that Martin had neglected the
children before the family moved to Kansas. Ultimately, however, the error was
harmless. Contrary to Martin’s suggestion, the vast majority of the “adopt[ed]”
findings were independently supported by competent evidence admitted at the
final hearing, including the crucial finding that, before April 2018, “if [Martin]
was unaware that the [children] were not in [MacMahan’s] direct care, it is
because he turned a blind eye to the dire situation here in Maine.” See infra
¶¶ 32-33. The court expressed that finding—along with the other findings
10 The Ostranders do not argue that the court could have adopted the interim findings pursuant
to M.R. Civ. P. 118(a)(2), which provides for review by the court of a magistrate’s final order or judgment, or that the court could have taken judicial notice of the interim findings, see M.R. Evid. 201(b); Adoption by Jessica M., 2020 ME 118, ¶ 14, 239 A.3d 633; In re Scott S., 2001 ME 114, ¶¶ 12-14, 775 A.2d 1144. 13
central to its de facto parentage determination, see 19-A M.R.S. § 1891(3)—in a
separate portion of the judgment without reference to the stray, unsupported
finding concerning the caseworker’s observations. In the context of the court’s
entire order, it is highly probable that the erroneous finding did not affect
Martin’s substantial rights. See M.R. Civ. P. 61; In re Scott S., 2001 ME 114, ¶ 25,
775 A.2d 1144; see also Banks v. Leary, 2019 ME 89, ¶¶ 15, 18, 209 A.3d 109
(highlighting a “court’s limited reliance on” an erroneously admitted guardian
ad litem report to conclude that harmless error applied).
B. De Facto Parentage
[¶21] Martin argues that, because the trial court did not find that he
affirmatively fostered and supported the Ostranders’ de facto parent
relationship with the children, we would need to interpret the de facto
parentage statute unconstitutionally in order to uphold the trial court’s
determination that the Ostranders are the children’s de facto parents. The
statute provides, in relevant part, as follows:
3. Adjudication of de facto parent status. The court shall adjudicate a person to be a de facto parent if the court finds by clear and convincing evidence that the person has 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: 14
A. The person has resided with the child for a significant period of time;
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).
[¶22] Specifically, Martin’s argument focuses upon the required findings
that “the relationship was fostered or supported by another parent of the child”
and that “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). Martin contends that for the statute to survive
constitutional scrutiny, the statutory references to “another parent” and “the
other parent” must be read to refer to each and every legal parent. Martin does
not challenge the court’s findings that the Ostranders proved the other 15
elements of their de facto parentage claim, such as that they provided residence
and care and exercised parental responsibilities for the children, and we agree
that the record fully supports those findings.
[¶23] Martin’s argument raises a legal issue and a factual issue. First,
based on our case law explaining that a de facto parentage determination
implicates a legal parent’s fundamental right to control the care and custody of
his or her child, e.g., Pitts v. Moore, 2014 ME 59, ¶ 27, 90 A.3d 1169, Martin
argues that for the Ostranders to satisfy their burden under section 1891(3)(C),
the Ostranders needed to prove that he—a presumptively fit legal parent—
fostered or supported the children’s relationships with the Ostranders and
behaved as though the Ostranders were parents of the children, not just that
MacMahan did so. Second, he argues that the record contains insufficient proof
to support that finding.11
[¶24] Our task is thus to examine (1) whether, to avoid an
unconstitutional result, the statute must be read as Martin contends, and, if so,
(2) whether the court’s findings are supported by the evidence. We review the
11 Martin also argues, for the first time in his reply brief, that there was insufficient evidence to
support findings that MacMahan fostered or supported the relationship with the Ostranders and behaved as though the Ostranders were parents of the children. Because Martin has not preserved that argument, we need not address it, see, e.g., Bayview Loan Servicing v. Bartlett, 2014 ME 37, ¶ 24, 87 A.3d 741, but we note here that we are not persuaded. 16
court’s findings for clear error, Kilborn, 2016 ME 78, ¶ 16, 140 A.3d 461, and
we examine questions of constitutional law and statutory interpretation de
novo, In re D.P., 2013 ME 40, ¶ 6, 65 A.3d 1216. “If at all possible, we will
construe [a] statute to preserve its constitutionality.” Town of Baldwin v. Carter,
2002 ME 52, ¶ 9, 794 A.2d 62. “Thus, when there is a reasonable interpretation
of a statute that will satisfy constitutional requirements, we will adopt that
interpretation notwithstanding other possible interpretations of the statute
that could violate the Constitution.” Nader v. Me. Democratic Party, 2012 ME 57,
¶ 19, 41 A.3d 551 (citation omitted).
[¶25] As we have consistently recognized, efforts by persons other than
legal parents “to obtain parental rights through litigation, over the objections
of parents, implicate the parents’ fundamental right[s] to direct the upbringing
of their children.” Philbrook v. Theriault, 2008 ME 152, ¶ 17, 957 A.2d 74; see
Pitts, 2014 ME 59, ¶¶ 11-12, 17, 24, 27, 90 A.3d 1169; Rideout v. Riendeau,
2000 ME 198, ¶ 18, 761 A.2d 291 (“[T]he right to direct and control a child’s
upbringing is a ‘fundamental’ liberty interest protected by the Due Process
Clause.” (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000) (emphasis
omitted))). Because a court’s determination that a person is a de facto parent
constitutes a “substantial” “intrusion into a [legal] parent’s fundamental rights” 17
that is “no less permanent than the termination of parental rights,” we apply
strict scrutiny to evaluate whether that interference impermissibly burdens the
rights at issue. Pitts, 2014 ME 59, ¶¶ 12, 17, 27, 90 A.3d 1169; see C.L. v. L.L.,
2015 ME 131, ¶ 22, 125 A.3d 350 (“The creation by a court of an additional,
legally recognized parental relationship with a child permanently alters the
relationships among the child and the other parents.”).
[¶26] When we decided Pitts v. Moore, we had previously recognized that
our courts could grant parental rights to a person other than a biological or
adoptive parent,12 but neither we nor the Legislature had acted to establish
precise standards for such a determination that would account for the exacting
scrutiny required. See Pitts, 2014 ME 59, ¶¶ 19, 24, 90 A.3d 1169. In a plurality
opinion in Pitts, we held that a person seeking de facto parentage status must
prove by clear and convincing evidence “(1) [that] he or she has undertaken a
permanent, unequivocal, committed, and responsible parental role in the
child’s life, and (2) that there are exceptional circumstances sufficient to allow
the court to interfere with the legal or adoptive parent’s rights.” Id. ¶ 27
(quotation marks and citations omitted).
12 See Stitham v. Henderson, 2001 ME 52, 768 A.2d 598; C.E.W. v. D.E.W., 2004 ME 43, 845 A.2d 1146; Young v. Young, 2004 ME 44, 845 A.2d 1144; Leonard v. Boardman, 2004 ME 108, 854 A.2d 869; Philbrook v. Theriault, 2008 ME 152, 957 A.2d 74. 18
[¶27] Relevant to this case, we explained the first element in more detail,
stating,
We define a “permanent, unequivocal, committed, and responsible parental role” by looking to the elements of de facto parenthood employed in Massachusetts: “A de facto parent is one who has no biological relation to the child [as a parent], but has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions . . . .”
Id. ¶ 28 (quoting E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999)). “This
language,” we stated, “gives litigants and courts a list of the necessary elements
for determining whether an individual’s relationship with a child is permanent,
unequivocal, committed, and responsible.” Id. We noted that “the test accounts
for the intent of the legal parent and the putative de facto parent to co-parent,
as measured before the dissolution of their relationship, or the intent of the
legal parent that the non-parent act as parent in place of the legal parent.” Id.
In Kilborn, 2016 ME 78, ¶ 18, 140 A.3d 461, we reiterated that this element “can
be met by demonstrating that . . . a legal parent intended for the nonparent to
act in place of the legal parent.” We also made clear that proof that the legal
parent “implicitly, if not explicitly, consented to and encouraged” the putative
de facto parent’s parental role can suffice. Id. ¶¶ 19-21 (quotation marks
omitted). 19
[¶28] In July 2016, when the Legislature enacted the Maine Parentage
Act, it codified these common law standards. P.L. 2015, ch. 296, § A-1 (effective
July 1, 2016); Libby, 2020 ME 71, ¶ 16 n.3, 234 A.3d 197 (noting that 19-A M.R.S.
§ 1891 “codifie[d] the common law principle that a person cannot become a
de facto parent unless the child’s legal parent recognizes the person as a
parent); Kilborn, 2016 ME 78, ¶ 1 n.1, 140 A.3d 461 (explaining that
section 1891 codified the first element of the two-part test set forth in Pitts);
L.D. 1017, Enacted Law Summary (127th Legis. 2015) (stating that the statute
“codifie[d] the de facto parent doctrine, now firmly established by case law”).
Thus, the statute provides that the court must adjudicate a person a de facto
parent if it finds by clear and convincing evidence “that the person has fully and
completely undertaken a permanent, unequivocal, committed and responsible
parental role in the child’s life,” and it further provides that “[s]uch a finding
requires” five enumerated sub-findings,13 one of which contains the language
at issue here: that
[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
13 These are what we described as “the necessary elements” for determining whether a putative
de facto parent “has undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life,” which is necessary to protect a legal parent’s fundamental right to control the upbringing of his or her children. Pitts v. Moore, 2014 ME 59, ¶¶ 27-28, 90 A.3d 1169 (quotation marks omitted). 20
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).
[¶29] In light of this precedent, we conclude that a putative de facto
parent must prove the elements of section 1891(3)(C) as to a legal parent who
appears14 and objects to the de facto parentage petition, as Martin has.15 See
Davis, 2018 ME 72, ¶ 20, 186 A.3d 837 (“Given the legislative history of the
[Maine Parentage Act], we use the common law that the [Act] later attempted
to codify as one way to understand the Legislature’s intentions.” (footnote
omitted)). We therefore agree with Martin that in order for the court to
adjudicate the Ostranders de facto parents of the children, the Ostranders
needed to prove that “the relationship was fostered or supported by” Martin
and that Martin and the Ostranders “understood, acknowledged or accepted
that or behaved as though” the Ostranders were parents of the children.
19-A M.R.S. § 1891(3)(C). To hold otherwise would potentially allow the
unilateral actions of one legal parent to cause an unconstitutional dilution of
The statute requires a person seeking to be adjudicated a de facto parent to serve the initiating 14
pleadings and affidavit “upon all parents and legal guardians of the child and any other party to the proceeding.” 19-A M.R.S. § 1891(2)(A) (2021).
This case does not call on us to decide whether the same requirement applies to legal parents 15
who fail to appear or who appear and do not object. Nor does it present the issue of what standards apply when an objecting parent has been deemed unfit. 21
another legal parent’s rights. See E.N. v. T.R., 255 A.3d 1, 31 (Md. 2021) (“[T]o
declare the existence of a de facto parentship based on the consent of only one
[legal] parent . . . undermines and, essentially, negates [any other legal] parent’s
constitutional right to the care, custody, and control of the . . . children.”).16
[¶30] Our 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, 19-A M.R.S. § 1891(2)(A), and the law
of other states, see D.C. Code § 16-831.01(1) (LEXIS through all permanent
L. effective as of Nov. 17, 2021) (defining de facto parent to require holding
16In E.N. v. T.R., the Maryland Court of Appeals articulated its rationale for requiring a showing of consent by all legal parents:
[I]n addition to infringing on a parent’s individual constitutional right to custody and control of his or her child . . . , 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. . . . [T]here 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 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.
255 A.3d 1, 40 (Md. 2021) (citation omitted). The court also recognized that “consent” may be “implied” and may be “inferred from a legal parent’s conduct” and “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.” Id. at 34. 22
oneself out as a parent “with the agreement of the child’s parent or, if there are
2 parents, both parents”); E.N., 255 A.3d at 30-32.17
[¶31] Importantly, however, section 1891(3)(C) does not require proof
that every legal parent has given express consent to the de facto parent
relationship. If such consent were required, there could be no litigation of any
de facto parentage claim because a legal parent’s objection would necessarily
defeat the claim. Rather, the proof that section 1891(3)(C) requires is that the
legal parent or parents have recognized, accepted, and supported the formation
and growth of “[a] bonded and dependent relationship” between the putative
de facto parent and the child, 19-A M.R.S. § 1891(3)(C). See Kilborn,
2016 ME 78, ¶¶ 18-20, 140 A.3d 461; Pitts, 2014 ME 59, ¶ 28, 90 A.3d 1169;
Young v. King, 2019 ME 78, ¶¶ 9-12, 208 A.3d 762. A person seeking de facto
parentage status can satisfy the section 1891(3)(C) burden by demonstrating
17 Although we have not had occasion to address the issue directly before, our conclusion is also
consistent with our own decisions. In Kilborn v. Carey, in affirming a de facto parentage determination on the merits before Maine’s de facto parentage statute became effective, we addressed separately whether sufficient evidence existed to support the trial court’s findings that each legal parent fostered and supported the relationship with the de facto parent. 2016 ME 78, ¶¶ 18-21, 140 A.3d 461. Until this case, our de facto parentage decisions under the statute addressed only issues of standing. See Libby v. Estabrook, 2020 ME 71, ¶ 1, 234 A.3d 197; In re Child of Philip S., 2020 ME 2, ¶ 1, 223 A.3d 114; Young v. King, 2019 ME 78, ¶ 1, 208 A.3d 762; Lamkin v. Lamkin, 2018 ME 76, ¶ 1, 186 A.3d 1276; Davis v. McGuire, 2018 ME 72, ¶ 1, 186 A.3d 837. In some of those decisions, however, we affirmed the dismissal of a de facto parentage petition for lack of standing because one legal parent had not fostered and supported the relationship or acknowledged the putative de facto parent as a parent, and we did so without considering whether any other legal parent had fostered or supported the putative de facto parenting relationship. See Davis, 2018 ME 72, ¶¶ 10, 30, 32, 186 A.3d 837; In re Child of Philip S., 2020 ME 2, ¶¶ 3, 9, 22, 223 A.3d 114. 23
that the child’s legal parent or parents have implicitly, through acts or
omissions if not through words, fostered, supported, and accepted the person’s
parental role. Kilborn, 2016 ME 78, ¶¶ 18-21, 21 n.6, 140 A.3d 461; Young,
2019 ME 78, ¶ 10, 208 A.3d 762.
[¶32] Here, the trial court found, contrary to Martin’s testimony, that at
least by April 2016, Martin knew or should have known that the children were
living with the Ostranders and that he “abdicated his financial and personal
responsibility to care for the children.” See Principles of the L. of Fam.
Dissolution: Analysis and Recommendations § 2.03 cmt. c (Am. L. Inst. 2002)
(explaining that a de facto parent relationship may form without the agreement
of “[t]he legal parent or parents” where there is “a complete failure or inability
of any legal parent to perform caretaking functions,” such as “when a parent is
absent, or virtually absent, from the child’s life”); In re Parentage of J.B.R.,
336 P.3d 648, 653-54 (Wash. Ct. App. 2014) (concluding that a trial court did
not err in finding that a parent “consent[ed] to and foster[ed] a relationship”
with a de facto parent by “voluntarily absent[ing] himself from his child’s life”).
Martin’s pervasive failure to exercise either his parental rights or his parental
responsibilities illustrates the principle that a legal parent’s omissions or 24
absence may create a vacuum in terms of care and nurture that is filled by the
de facto parent relationship. See Libby, 2020 ME 71, ¶ 16, 234 A.3d 197.
[¶33] The court’s findings regarding Martin’s abdication of his rights and
responsibilities are amply supported by the evidence in the record and they are
sufficient to support the determination that Martin—at least implicitly—
understood and accepted that the Ostranders were fulfilling parental roles for
his children. The record evidence went beyond mere omissions on Martin’s
part and included his testimony that he voiced affirmative support for the
Ostranders’ de facto parentage relationship with the children when he
expressed his appreciation to them for “raising [his] girls,” and also that he took
an affirmative step to foster the relationship when he granted them temporary
legal authority over the children. It is true that Martin’s motion to modify
reflected a step toward asserting his own parental rights, but given the
evidence of commitments made but not kept on his part, it did not detract from
the record evidence supporting the court’s findings in favor of the Ostranders.
See Sulikowski v Sulikowski, 2019 ME 143, ¶ 14, 216 A.3d 893 (“The trial court
is the sole arbiter of witness credibility and it is therefore free to accept or reject
portions of the parties’ testimony based on its credibility determinations and
to give their testimony the weight it deems appropriate.” (citation omitted)); 25
Handrahan v. Malenko, 2011 ME 15, ¶ 14, 12 A.3d 79 (“A court is not required
to believe the testimony of any particular witness, . . . even when the witness’s
testimony is uncontradicted.” (quotation marks and citations omitted)).
C. Martin’s Motion to Modify the Divorce Judgment
[¶34] Martin also challenges the court’s denial of his request, made via
his motion to modify the divorce judgment, for sole parental rights and for the
children to live primarily with him in Kansas. See 19-A M.R.S. § 1657(1) (2021).
“We review an order on a post-divorce motion for an abuse of discretion or
error of law and review factual findings contained therein for clear error.”
Lewin v. Skehan, 2012 ME 31, ¶ 24, 39 A.3d 58. “[O]nly a substantial change in
circumstances since the entry of the most recent decree can justify the
modification of the decree, and . . . the overriding consideration whenever a
proposed modification is sought is the best interest[s] of the minor children.”
Levy, Maine Family Law § 6.6[1] at 6-61 (8th ed. 2013) (quotation marks
omitted).
[¶35] We do not agree with Martin that the court acted outside its
discretion when it declined to find that Martin had demonstrated a change in
circumstances—since the entry of the divorce judgment in January 2018—that
was substantial enough to justify the modifications he sought. See Smith v. 26
Rideout, 2010 ME 69, ¶¶ 15-18, 1 A.3d 441; Villa v. Smith, 534 A.2d 1310, 1312
(Me. 1987) (explaining that the trial court has broad discretion to determine
whether a change in circumstances has affected the children’s best interests to
a degree significant enough to justify a change of primary custody). The court
thoroughly examined the children’s best interests in its consolidated order and
determined that those interests would be served by continued residence
primarily with the Ostranders and shared parental rights. It did not err or
abuse its discretion when, in accordance with those supported findings, it
declined Martin’s request for sole parental rights and primary residence.
D. Conclusion
[¶36] We affirm the judgment granting the Ostranders parental rights
and vacate the judgment amending the divorce judgment for three reasons.
First, to the extent that the trial court erred by “adopt[ing]” the magistrate’s
interim findings, the error was harmless. Second, although the Ostranders
were required to prove that Martin—as a legal parent objecting to the
Ostranders’ de facto parentage petition—“fostered or supported” the
Ostranders’ parental role and “understood, acknowledged or accepted that
[role] or behaved as though the” Ostranders were the children’s parents,
19-A M.R.S. § 1891(3)(C), the court did not err when it determined that the 27
Ostranders had sustained their burden. Finally, because the court’s amended
divorce judgment does not provide that the children’s primary residence is to
be with the Ostranders, we vacate the judgment amending the divorce
judgment and remand to allow the court to remedy that remaining
inconsistency.
The entry is:
The judgment establishing de facto parentage, parental rights and responsibilities, and child support is affirmed. The judgment amending the divorce judgment is vacated. The matter is remanded for the trial court to enter a new amended divorce judgment that is consistent with the judgment establishing parental rights and responsibilities and provides that the children’s primary residence shall be with the Ostranders.
E. Anne Carton, Esq., Brunswick, and Matthew C. Garascia, Esq. (orally), Auburn, for appellant Mark R. Martin
John F. Zink, Esq. (orally), Freeport, for appellees Dawn and James Ostrander
Vanessa A. Bartlett, Esq., Law Offices of Vanessa A. Bartlett, Portland, for appellee Marylou E. MacMahan
West Bath District Court docket numbers FM-2017-186; FM-2018-340’ FOR CLERK REFERENCE ONLY