213 A.3d 685
Md. Ct. Spec. App.2019Background
- Father filed for sole custody of his son; maternal grandmother (Karen S.) obtained emergency custody and litigation consolidated in Baltimore City.
- Paternal grandparents (David and Jennifer A.) intervened seeking custody/visitation; family history included parental drug abuse and instability.
- At trial the court found both parents unfit; Karen S. had been Child’s de facto parent since February 2017 and was awarded sole legal and primary physical custody.
- Karen S. sought attorney’s fees under Fam. Law § 12-103; the trial court found the A.s lacked substantial justification for intervening and ordered them to pay $57,289.32 in fees and costs.
- The A.s appealed only the fee award, arguing (inter alia) that § 12-103 applies only to parents, that fees should be apportioned, that Karen S. waived her fee claim, and that their past financial support of the child should offset fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a de facto parent may recover fees under Fam. Law § 12‑103(a) | A.s: implied challenge that only parents qualify (narrow reading) | Karen S.: as de facto parent she stands equal to legal parents and may recover | Court: de facto parent qualifies; §12‑103 applies to de facto parents on same basis as biological/adoptive parents |
| Whether § 12‑103 permits fee awards against non‑parent intervenors | A.s: statute limited to disputes between parents/children of the parties | Karen S.: statute refers to a “person” and “party,” not limited to parents; policy supports coverage of non‑parents | Court: ambiguous language construed to include non‑parent intervenors; award against A.s. authorized |
| Whether § 12‑103(c) requires fee awards where a party lacked substantial justification | A.s: they were partly successful (obtained visitation) so had justification | Karen S.: court found A.s lacked substantial justification given inconsistent testimony and positions; §12‑103(c) mandates fees if no substantial justification | Court: substantial justification determined by reasonableness of position; court’s finding A.s lacked substantial justification was not clearly erroneous and §12‑103(c) supports award |
| Whether trial court abused discretion in amount (apportionment, credits, waiver) | A.s: should pay only fees attributable to their conduct; prior support for child should offset award; Karen S. waived fees | Karen S.: court properly considered §12‑103(b) factors and reasonableness; no waiver; past support not a credit to attorney’s fees | Court: no abuse of discretion—trial court properly applied §12‑103(b), ordered full award against A.s, found no waiver, and refused offset for past child support/support payments |
Key Cases Cited
- Kpetigo v. Kpetigo, 238 Md. App. 561 (Md. Ct. Spec. App.) (describing de facto parent test and parent‑like relationship factors)
- Conover v. Conover, 450 Md. 51 (Md. 2016) (de facto parent status elevates third party to parental standing for custody disputes)
- Petrini v. Petrini, 336 Md. 453 (Md. 1994) (standard of review for fee awards in custody proceedings)
- Taylor v. Mandel, 402 Md. 109 (Md. 2007) (statutory fee award construed as limited to parents under prior wording)
- McCally v. McCally, 251 Md. 735 (Md. 1969) (broad power to award fees in child custody/support proceedings)
- Henriquez v. Henriquez, 413 Md. 287 (Md. 2010) (§12‑103(b) factors and purpose in awarding fees)