*1 948A.2d M. JANICE K. MARGARET Term, Sept. 2006.
No. 122 Maryland. Appeals of Court of May *2 Drazin, Colum- (Stephen A. Young, Annapolis E. Cynthia brief, Petitioner/Cross-Respondent. bia), for on Strickler, (Scott Sachita- M. Strickler F. Fairfax Jennifer Bethesda, brief), Respon- Hatfield, P.A., on no & dent/Cross-Petitioner. Amicus Curiae Council as Research Family
Brief of Paavola, M. Petitioner/Cross-Respondent: Matt support Bull, R. Lavy, Christopher Glen Baltimore, Benjamin W. Scottsdale, Fund, AZ. Stovall, Alliance Defense Respondent/Cross- support Amici Curiae Brief of Workers, of Social Nat. Ass’n Ass’n of Social Petitioner Nat. *3 Robyn L. Martone-Boyce, Clara M. Chapter: MD Workers Watkins, LLP, Burman, Latham & C. Ginsberg, Kindall Woodhouse, on DC; Bennett Center Barbara Washington, Law, Families, College Levin of Frederic G. Children Gainesville, FL. Rights Nat. Center for Lesbian
Brief of Amicus Curiae Family of Law and of Baltimore School University and The of support Respondent/Cross-Petitioner: Clinics Mediation Eisemann, for Lesbian Minter, Nat. Center Vanessa Shannon Goodmark, Francisco, CA; Leigh Murphy, Jane Rights, San Programs, Balti- Family Law Clinical University of Baltimore more. Union, Liberties American Civil
Brief of Amici Curiae for Lesbi- Maryland, of Nat. Center American Civil Liberties Center, Respon- support an and Public Justice Rights, Presswood, Minter, dent/Cross-Petitioner; Kendra Shannon Francisco, CA; Suzanne Rights, San Nat. Center for lesbian Baltimore; Center, Cooper, Leslie Public Justice Sangree, Foundation, Esseks, Liberties Union D. American Civil James Rocah, American Civil Liberties David R. City; York New Maryland, Baltimore. Foundation Union BELL, C.J., *, *, ARGUED BEFORE RAKER CATHELL HARRELL, BATTAGLIA, GREENE, and ALAN M. (Retired, specially assigned), WILNER JJ.
BELL, Judge. Chief Maryland decide in this case whether recognizes We and, so, if parenthood person status whether a who of that requirements satisfies status is entitled to visitation custody rights objection fit, over the legal parent,1 having exceptional without establish circumstances warranting rights such exist. We shall hold that de facto parenthood recognized Maryland. is not Accordingly, we conclude, in order to overcome the constitutional rights of a care, legal parent govern custody, control his or child, her even a who person qualify would as a de facto who parent, custody, seeks visitation or must demonstrate prerequisite circumstances as a to the court’s consideration of the best interests of the child as a factor that decision. case,
In this
one
member of committed same-sex relation-
of,
ship
with,
is seeking
the child
and/or
M.,
the other
adopted
member of that
Janice
relationship.
K.,
petitioner,
respondent,
were involved
in a committed same-sex
relationship
approximately eigh-
years, during
teen
the course of which Janice M. adopted
Maya, for whose
M.
custody Margaret
filed
complaint
Circuit Court for
County.
Baltimore
That court denied Mar-
but,
garet
prayer
K.’s
for custody,
having found that Margaret
K. was a
parent, granted her visitation. The Court of
defacto
*4
Special Appeals
judgment.
affirmed that
Janice M. Marga-
* Raker,
Cathell, J.,
retired, participated
J. and
hearing
now
in
Court;
being
conference of this case while active members of this
after
Constitution,
IV,
3A,
pursuant
they
recalled
to the
Article
Section
also
participated
adoption
opinion.
in the decision and
of this
"legal parent"
any party
1. The term
recognized
refers to
who is
as a
parent by
law. See American Law
Principles
Institute,
Law
2.03(a),
§
Family
Analysis
at 107
Dissolution:
and Recommendations
(softcover
2003).
adoptive
ed.
It includes
parents.
both natural and
(2006).
granted
We
K.,
Md.App.
ret
K.’s
Margaret
writ of certiorari
for
petition
M.’s
Janice
court should
a trial
the standard
to consider
cross petition
under
custody matters
visitation and
considering
when
employ
M. v.
case.
Janice
by this
presented
the circumstances
524,
I. who were are two women K. Margaret Janice M. couple The relationship. same-sex in committed involved a years eighteen 1986, and, approximately for most of inmet in owned a residence they together lived together, they were parties separated In summer of M. by Janice home. out of Janice M.’s K. moved Margaret mother, sentiment to be a a very much M. desired Janice relation of their during the course expressed which she often of in by use pregnant to become attempts her ship. When discussing unsuccessful her and after proved fertilization vitro in K.,2 adoption pursued Janice M. Margaret options with Maya, successful; adopted M. was Janice That pursuit India. Marga States. arrived the United who, in December Maryland.3 adopt Maya attempt not ever ret K. did process. adoption formal Margaret played no role in the K. adoption regulations prohibit same-sex that Indian record indicates in- adopting K.’s failure to become couples and that from due, may part, to this fact. Maya’s adoption have been volved Maryland may adopt couples a child in whether same-sex 3. The issue of opinion express on the this case and we no been briefed in has not (1984, Family § Law Repl.Vol.), 5-3A-29 of the issue. Md.Code part, adoption. pertinent it requirements prescribes the for Article provides: “(a) adoption this may petition under Age.—Any adult court subtitle. “(c) Marital Status.— married, petitioner's petitioner this section is under If petition spouse: spouse join unless the shall in the (i) gives petitioner a circumstance that separated from the under divorce; or petitioner ground for annulment or (ii) join petition. competent is not
From the time that Maya arrived the United States in 1999 until the summer of parties separated, when the Margaret she lived with both K. and Janice During M. time, parties shared most regarding Maya’s duties care. Janice M. Margaret responsibilities K. divided the food, her, preparing Maya’s changing diapers, bathing her needs, handling schooling, addressing her her healthcare performing most other caretaking duties.
Following parties’ separation, Margaret K. saw initially Maya between three and four times a week. Those visits largely unsupervised. were As the relationship between Mar- strained, garet increasingly K. and Janice M. became Janice placed M. certain restrictions on Margaret K.’s visitation. Margaret October Janice M. sent K. a letter in which visitation, she enumerated specific Margaret conditions on K.: required arrange was visitation through Janice M. rather than with Maya directly; Maya only could take places Janice M. not approved, speak disparagingly could about M., required Janice and was any people inform Janice M. of who accompany Thereafter, would K. Margaret during visits. K. Margaret unsupervised continued visitation with Maya a week. approximately twice
By January Margaret K. had become with dissatisfied conditions, prescribed restrictions, on visitation. As a result, month, Margaret K.’s attorney sent Janice M. a letter concerning Maya. visitation with Janice M. responded by denying K. all Margaret prohibiting visitation and her all Maya. access to complaint K. filed a in the Circuit Court for County, or, alternative,
Baltimore seeking custody, petitioner changes entry If the marital status of a of a before order, petitioner petition accordingly.” final shall amend the Further, 07.05.03.09(A)(2), Maryland Regulations, the Code of COMAR prohibits adoption agency denying application an from an individual's adopt applicant’s because of the sexual See orientation. also CO- 07.05.03.15(C)(2) (noting "agency may delay deny MAR that the not adoption placement of child for on the basis of ... sexual orientation”). Mar- hearing complaint, on the evidentiary At an visitation. as did Maya, relationship about her K. testified garet At the acquaintances. friends and couple’s several *6 case, granted Court K.’s Circuit conclusion of As custody. on the issue of judgment motion for Janice M.’s M., an matter, determined that Janice as the court an initial of custo- presumptive right entitled to a parent, was adoptive on the part lack of fitness “no evidence as to dy. finding After extraordinary M.],” considered whether the court of [Janice that Jan- presumption to overcome circumstances existed Court custody Maya. The Circuit was entitled to ice M. as follows: concluded circumstances, circumstances extraordinary
“As far as or such extraordinarily exceptional compelling, have to be the child from the court to remove require circumstances from to the child protect order biological parent harm. Md.App. Christopher,
“In Karen v. reviewing from (2005), distinguished I that case can be A.2d 646 think biological In that case the the facts this case. Maryland child from the State of removed the
abruptly seeking custody, for the making impossible person it almost case, them. The in that to communicate with Christopher Christopher did not allow the child to see biological parent restrictions, that visita- including except infrequently presence. tion had to be her that the
“Basically, in that case the court found immaturity and selfishness through pattern personal her own interests took actions an effort to elevate break the rendered the child fatherless to actually which In this case we totally between the father and child. bond set forth in this October being do have some restrictions 6th, letter, are I don’t see that those restrictions but what on in the cited anywhere going near the level of was case. fact, I not want clearly saying,
“In do very [Janice M.] see You have been deny Maya opportunity you. week, and visit with each Maya allowed to communicate etcetera, encouraged you, although etcetera. I’ve her to call you not want to invite to be of our activities. may part she I Maya, I love know that she cares about It’s because to visit with you you granted opportunity have been her.
* * * anyhow I think on this letter there are rules “So based forth, you set but don’t have a situation where the being state, I child is taken out of and so don’t see that this being see where the facts of this case rise to establishes—I don’t extraordinary, exceptional compelling circum- the level of I’m going grant or even close. So the motion as stances custody, proceed and we’ll on the visitation issues.” evidence, the Circuit Following the conclusion all visitation, concluding addressed the issue of Mar- Court *7 to visitation. on the garet Relying primarily K. was entitled M.D., 132 Md. Special Appeals’ Court of decision S.F. (2000), the court found that K. App. A.2d 9 and, therefore, visitation would be Maya’s was de facto Maya. in the best interests of The court reasoned: M.D., dealing “Under the case of S.F. v. since we’re now, having already with visitation dismissed strictly right case, I plaintiffs issue of at the end of the find that case. is a de under plaintiff facto being, “The factors are met. The first one did the four between relationship consent to and foster the legal parent I Clearly, the third and the child? believe party [Janice M.] do that. did that the second is met. The prong
“There’s no question [Margaret third lived with the child. party K.] must have years I lived with the child for about three and a half it believe was. factor, perform parental
“The the third must I significant degree. for the child to a think that’s functions testimony. all the very clear from factor,
“And then the fourth which the case says is the important, most is there a parent-child bond that had been forged? I think the evidence is clear that that’s occurred as well.
[*] [*] [*] I plaintiff “So find that the is a de parent. Having visitation, found that in the context of there then is no here, presumption biological parent, favor of the adoptive parent. you child,
“So then look at the best interests of the the court finds aas matter of fact that it is in the best interests of the child that there be visitation with the plaintiff. It only testimony, was not her but it was also the testimony of the other witnesses that there is this relation- and I’m ship, finding that it would be detrimental that it be cut off totally.”
Janice M. noted a timely to the appeal Special Court of Appeals. The intermediate appellate court affirmed the judg- ment of the Circuit Court and finding its that Margaret K. qualified as a parent. The intermediate appellate court explained: M.D.,
“In
S.F. v.
(2000),
132 Md.App.
‘In determining whether one is a de facto parent, we
employ the test
H.S.H.-K.,
enunciated in In Custody
re
193 Wis.2d
(1995),
N.W.2d 419
and V.C. v.
163 N.J.
Id. 111-12, 15]. at A.2d [at de to claims be a child’s person
“The who facto (2) (1) successfully pleading, the burdens of must shoulder evidence, take of We can production persuasion. by adults judicial every occupied notice that in almost home children, on some functions perform parental adults test, quoted the above howev behalf of the children. Under er, parental functions is not enti performed who person a fact tled status unless the court finds as to defacto actually that such legal parent the child’s has fostered M.D., S.F. v. adopted the test we relationship. Because nor supra, one, holding neither our that case is a strict at bar to holding open floodgates our the case will of de who can by persons asserted parenthood claims that, living than while with the natural prove nothing more child, they performed or of a some adoptive child. functions on behalf of the bar, like the at in which
“Rare are cases case (as with that circuit court was evidence summa- presented counsel) Margaret ‘Maya was argument K.’s rized in this until every day country with K. her life Margaret August only K. has Margaret of 2004 reason [and] [t]he opportunity relationship been to have deprived her is she wasn’t on that decree daughter because circumstances, there is no merit adoption.’ Under these to the argument presented Janice M.’s evidence finding was the factual support circuit court insufficient K. Margaret Maya’s parent.” defacto K., 528, 538-40, Janice M. Md.App. affirmed Special Appeals The Court of also non-biological, non-adop that ‘a “holding Circuit Court’s is a required
tive
...
...
is not
parent,
parent,
[who]
biological parent
unfitness
show
”
Id. at
...
entitled
visitation.’
[to
circumstances
be]
S.F.,
111-12, 751
(quoting
Md.App.
Janice M. which granted following question: we address
671 “Does an exceptional circumstances standard rather than a best interests to visitation with a de facto apply standard parent?”
We also granted Margaret K.’s cross-petition, which sought resolution of following questions:
“1. Must a parent prove legal that a parent is unfit defacto exist for the de facto circumstances obtain custody of his or her child? “2. Is a parent entitled to visitation with his or her defacto if child it is in the child’s best interest?” defacto K.,
Janice M. v.
524,
(2007).
396 Md.
II. The United Supreme States Court long recognized has the Due Process Clause of the Fourteenth Amendment pro tects rights of parents govern care, direct and custody, and control of their children. See Troxel v. Gran ville, 57, 69-70, 530 U.S. 2054, 2062, 120 49, S.Ct. 147 L.Ed.2d Kramer, (2000); 58-59 Santosky 745, 753-54, 455 U.S. 102 1388, 1394-95, S.Ct. 599, 71 (1982); L.Ed.2d Stanley v. 606 Illinois, 645, 651, 405 U.S. 1208, 1212-13, 92 S.Ct. 31 L.Ed.2d 551, Massachusetts, (1972); 558-59 Prince v. 158, 321 U.S. 166, 438, 442, 64 S.Ct. 645, 88 (1944); L.Ed. 652 Pierce v. Sisters, Society 510, 534-35, 571, U.S. 573, 45 S.Ct. 1070, Nebraska, (1925);
L.Ed. Meyer v. 390, 262 U.S. 399-401, 625, 626-27, S.Ct. 67 L.Ed. 1044-46 Granville, In Troxel v. 530 U.S. 120 S.Ct.
L.Ed.2d writing for the plurality, Justice O’Connor ex plained as follows:
“The Fourteenth Amendment provides that no State shall ‘deprive any person life, liberty, or property, without due process of law.’ We have long recognized that the Amend- ment’s Clause, Due Process like its Fifth Amendment coun- terpart, guarantees more than process. fair The Clause also includes a substantive component provides height- ened protection against government interferences with cer- tain rights fundamental and liberty interests. at issue in this case—the interest of liberty
“The interest care, of their custody, and control children— parents liberty the fundamental interests perhaps the oldest of *10 years ago, this More than 75 recognized by Court. Nebraska, 399, 625, 390, 401[, v. 262 U.S. 43 S.Ct. Meyer (1923), 626-27, 1042, we held that the 67 L.Ed. 1044-46] by Due Clause includes the ‘liberty’ protected the Process up and children’ parents bring of ‘to establish home right later, years of own.’ Two and ‘to control the education their Sisters, 510, 534—535[,45 Society in Pierce 268 U.S. of 571, 573, 1070, (1925), again 69 L.Ed. we held 1078] S.Ct. and includes ‘liberty parents guardians’ right the of the that children under upbringing ‘to direct the education of that child is We Pierce not explained ‘[t]he their control.’ State; who of the those nurture him and the mere creature right, coupled high duty, his the with the destiny direct have obligations.’ him for additional recognize prepare to Id., 573, 535[, 69 at We returned at 45 S.Ct. at L.Ed. 1078]. Massachusetts, 158[, 64 the Prince v. 321 U.S. subject (1944), again confirmed that 88 L.Ed. 645] S.Ct. of parents is a dimension to the right there constitutional the their children. ‘It is cardinal with upbringing of direct of child custody, care and nurture the resides us function and freedom parents, primary first whose obligations the can neither include state preparation Id., 166[, at 88 at nor hinder.’ at 64 S.Ct. L.Ed. supply 652]. also, the funda- recognized
“In cases we have subsequent parents concerning of to make decisions right mental care, light In this custody, and control of their children. of Due it cannot now be doubted precedent, extensive protects of the Fourteenth Amendment Process Clause concerning to make decisions right parents fundamental care, of their children.” custody, and control Troxel, 65-66, 2059-60[, 147 at at L.Ed.2d U.S. S.Ct. omitted). (some quotations at internal citations 56-57] Troxel, Supreme was the the issue before the Court Washington permitting “any of a constitutionality statute party seeking subject any visitation to decision concerning parent’s of the children to state-court 2061[,147 review.” Id. at L.Ed.2d at The 57]. S.Ct. children, respondent, a mother of two limit her wanted to grandparents, parents children’s visits their children’s deceased The ordered visitation father. trial court Washington over the objection. mother’s The intermediate appellate Washington Court Supreme court reversed and the Smith, opinion, Custody affirmed in a consolidated In re Supreme Wash.2d P.2d 21 Washington Court held the on on grounds. statute invalid its face several First, permits the court held that the Constitution a State interfere the right parents only "with to rear their children to prevent harm or harm a child potential and that statute failed that standard required because it no threshold Second, showing harm. Id. at 29. court concluded *11 “ the visitation statute swept ‘any too broadly, allowing person’ to petition time,’ for ‘any forced visitation of child at with the only requirement being that visitation the the serve best interest of the Washington child.” Id. at 30. The Supreme opined “parents Court have a limit right to that, visitation their children with persons,” as between parents and judges, parents “the should be the ones to choose whether to their to expose people children certain or ideas.” Id. at
The
Court,
United States
in a
Supreme
plurality opinion,
affirmed, holding that Washington
the
statute interfered with
the mother’s
right
concerning
“fundamental
to make decisions
care,
Troxel,
the
custody, and control of her”
530
children.
72,
2063[,
U.S. at
S.Ct. at Finally, at the plurality gave 58]. L.Ed.2d weight to fact the that the children’s sought mother never instead at- grandparents, the but
eliminate visitation with 71, 120 Id. at the visits. frequency tempted only restrict 2062-63[, at 60]. at 147 L.Ed.2d S.Ct. of the precise scope plurality declined define and de- in the visitation context process right due the Due Process whether question
clined
answer
to include a
all
visitation statutes
nonparental
requires
Clause
Id.
120 S.Ct. at
harm.
showing
potential
of harm or
Instead,
holding
its
rested
“In we with Justice respect, this constitutionality any awarding standard which that standard turns on the manner specific in this area protections constitutional applied and that much state-court ‘elaborated care.’ Because are best basis, case-by-case context occurs on a adjudication this nonparental specific to hold that we would be hesitant per se as a the Due Process Clause visitation statutes violate matter.” omitted). (internal
Id. citations Troxel, occasions, Court, on has addressed several Since this rights custody in the context of process due parent’s 320, 869 A.2d Dougherty, In McDermott 385 Md. visitation. a child’s (2005), between dispute we resolved father, McDermott, grandparents, maternal child’s divorced mother had Doughertys. McDermott and child’s mother had Initially, birth. the child’s shortly after child’s *12 was unable continue as custody. The mother to primary custodian, however, sentenced to incarceration. when she was the child in the care During placed her time in she prison, McDermott, tour of was on a six-month parents. her who seaman, ar- initially consented to this duty a merchant however, sea, he return from rangement. Upon McDermott’s A between sought custody custody of the child. battle ensued grandparents. McDermott and the to the custody grandparents.
The Court awarded Circuit to mother unfit have The court concluded that the child’s was 675 that, “unfit,” while father not entitled custody, not was in custody, having employment to “that his it also determined marine, months-long him to requiring spend the merchant sea, ‘exceptional intervals at constituted circumstances’ as that 172, 191, in Hoffman, term Ross 280 Md. 372 was defined (1977) ... A.2d and the ‘best interest of child’ and custody need for a stable thus warranted that living situation McDermott, be Md. placed Doughertys,” with the Appeals at 753. The of Special A.2d Court affirmed. We granted petition for a writ of to McDermott’s certiorari deter- circumstances, mine when and under what where a fit parent party seeking custody, appropriate a third are it is t both o custody party. award to third
We identified three circumstances in which the “best inter est of might the child” standard arise. The first category disputes legal parents, involves between fit each of whom has equal second, rights parent. to constitutional and most situation, in frequent proceedings is the various types state in injects which state into in parenting itself situation parens patriae, protect role of to the child. The third i.e., category party custody cases, consists of the dispute third those persons cases which other legal parents than or the State attempt, directly or or indirectly, gain maintain custody legal children of respect pare nts.4 As this category, where the focus is on the standard to be applied when the is dispute between fit and a private third we party, explained:
“Where the
is
dispute
between a fit
a private
...
party
parties
begin
third
both
do
equal
not
on
footing
‘care,
respect
to rights to
custody,
control’ of the
children. The
is
asserting a fundamental constitu-
right.
tional
party
The third
A private
party
not.
third
actions,
4. Wc
noted that within the
third
subset
some
i.e.,
recognized
psychological parents,
states have
the status
have,
effect,
parties
parents.
who
Dougherty,
become
McDermott v.
320, 356,
Md.
We noted that courts
recognizing
according
this
status consider
issues
standards
apply
legal parents.
between
Id.
*13
right to raise the children
has no fundamental constitutional
statute,
the
Generally, absent a constitutional
of others.
has no
constitutional
non-governmental
rights,
third
otherwise,
else’s child.”
or
to raise someone
trial
We
that before the
at
5.
parental
finding of
which there is no
circumstances
"[U]nder
unfitness,
parent’s
is
requirements
employment,
such that he
sea,
appropriately
from
required
away
be
at
or otherwise
absent
time,
time
or she made
period and for which
he
the State for a
child,
appropriate arrangements
do not constitute
care
awarding
support
'extraordinary
exceptional
circumstances'
or
party."
to third
325-326,
(Md.,2005).
“[1] time the child has been from away the biological parent, [2] age of the child when care was assumed by the third party, [3] possible emotional effect on the child of a change custody, [4] period of time which elapsed parent sought child, before the to reclaim the [5] nature and strength of the ties between the child and custodian, intensity genuineness [6] the of the parent’s desire to have the child, [7] the stability certainty as to the child’s future in the of the parent.”
McDermott,
419,
In 404, 419, v. Haining, Koshko 398 Md. 921 A.2d (2007), we process revisited the due rights of fit parents to control upbringing their children. That case differed from McDermott in dispute that the arose when the children’s visitation, grandparents sought rather than over custody, objections of the parents. natural on Relying Maryland’s Statute, Grandparent (1984, Visitation Md.Code 2006 Rep.
Vol.) § Article, 9-102 of the Family Law the Circuit Court granted visitation to the grandparents. initially We noted that Maryland’s statute, grandparent “simply pro- vides that grandparents may petition for ‘reasonable visitation’ parties” analysis considered “third and treated as such as to they custody.
whether were entitled to if petitions grand- such grant courts to empowers equity ” of the child.’ ‘in the best interests visitation is parental to save the Koshko, at 182. order 398 Md. into the statute a infirmity, we read constitutional statute from children their parental regarding decisions presumption valid, process due as mandated substantive are both 184. We 921 A.2d at common law. Id. at Maryland concluded: interests, liberty we now parental preserve fundamental
“To Visitation Maryland [Grandparent to the GVS apply gloss of either showing a threshold requiring Statute] indicating circumstances unfitness significant has a deleterious 'visitation lack of grandparental subject petition. children who are the upon effect *15 constitutional avoidance the of principle do so under We onto the GVS a opinion engraft in this invoked previously parental presumption.” 441, 192-93. A.2d at
Id. at
921
case,
ad-
visitation,
Koshko
custody,
rather
than
As a
visitation, and
relationship
custody and
dressed the
between
between
determining
be
in
visitation
applied
principles
the
out that
pointed
grandparents.
We
legal parents
the
limited
custody,
of
albeit
a more
species
is a
“visitation
429,
explained:
Koshko,
(internal
430-31,
186
tional custody disputes when as it is with visitation matters ” 434, 921 Id. is ‘direct and substantial.’ interference state unfitness parental clear that McDermott made A.2d at 189. in are threshold considerations circumstances determinations; Koshko made clear that party custody disputes. in third visitation apply party those considerations visitation statute the grandparent we decided that Because to the Koshkos unconstitutionally applied had been excep- or unfitness finding parental threshold absence the Circuit circumstances, we remanded the case to tional with our opinion. consistent proceedings for further Court III. jurisprudence and visitation custody of our aspect
With this mind, we turn to the issue firmly background as case—whether, party asserting when the in this presented for de facto rights meets the requirements status, court, finding exceptional circumstances without first of the child unfitness, the best interests may apply standard. meaning, “parent a literal parent” has
The term “de facto who claims describe a generally It is used fact.” relation rights upon party’s based or visitation 621, 604, A.2d Maryland, Incorporated, 370 Md. 805 Comcast Cable of State, cases). 1061, (2002) (cataloguing v. See also Borchardt 1071 J., 631, (Raker, 91, 175, dissenting) 786 681 367 Md. A.2d pari interpreted 24 in (‘Although generally Article this Court has Amendment, Clause of the Fourteenth materia with the Due Process broadly interpreted where fundamental we it more in instances have so.’). Judge dissent in Bor that we do Raker’s demanded fairness context, placing examples criminal such cited some chardt prosequi nolle prosecutorial on discretion enter stricter limits We read optional merger offenses. Id. have also of criminal broadly process the federal consti Maryland’s clause more than due counsel, Rutherford, granting right to see v. tution Rutherford 228, 363, 234, (1983), 347, 358, Das 237 cited in 464 A.2d Md. 28, 441, (2000), 1, Das, protection Md.App. and the 754 A.2d State, self-incrimination, n. 316 Md. Choi v. from (1989).” 1111 n. 3 Koshko, 194-95 n. at 444 n. 921 A.2d at Md. *17 fact, a non-biological, child.8 ship, non-adopted Institute, American Law which has promulgated principles governing allocation of custodial and re decision-making children, for de sponsibilities defines as follows: facto other a legal parent “[A]n individual than a or who, estoppel for a not significant period of time less than years, two
“(i) and, lived with the child
“(ii) primarily for reasons other compensa- than financial tion, and with the of agreement legal parent a to form a parent-child relationship, or as a result of complete inability or of any legal parent failure to perform caretak- functions, ing
“(A) regularly performed majority of caretaking child, functions or
“(B) regularly performed a share of caretaking func- at great tions least as as of the parent with whom the child primarily lived.” Principles Family Institute,
American Law of Law Analysis 2.03(l)(c), § Dissolution: Recommendations (softcover 2003). 107-08 ed. M.D., 99, on
Relying S.F. 132 Md.App. 751 A.2d trial judge the instant case found K. is and, Maya’s therefore, de granted Margaret K. facto visitation. Janice M. urges reject this Court to the concept of parenthood may it bear on or 8. Often parent” the term “de interchangeably is used with the parentis "psychological parent.” terms loco See In re Parent- and/or L.B., age (2005). 155 Wash.2d 122 P.3d 167-68 7n. While related, designations these they always, are are necessarily, not meaning. parentis" literally identical “In place loco means "in the parent,” "[a]cting party temporary guardian and refers to a as a (7th 1999). a child.” Black’s Law Dictionary "psy- ed. The term chological parent” primarily is based theory, in social science “parent-like” relationship refers to a who has a with a child as a interaction, "day-to-day result of companionship, experi- and shared ences.” Joseph Beyond Goldstein, Freud, Solnit, Anna Albert J. the Best Press, Schuster, The Free Simon & Inc. Child, Interests *18 M.D., all
determinations, per- and hold that overrule S.F. as third to be treated parents than are legal sons other if suggest, and Koshko in McDermott holdings as our parties, of McDermott interpretation M.’s not direct. Under Janice Koshko, greater entitled to no de is a facto adop- or non-parent, other any than consideration should, would, differently than tive, and, thus, be treated no or interest before the best Consequently, any party. other in a visitation case may be considered of the child factors parent, the trial court a de legal parent a between facto to is unfit have legal parent find that the need to would posing extraordinary circumstances or that there are custody in remain to the if that child were to detriment child serious custody legal parent. the those that parties, including all third argues M. that
Janice the enunciated parents under standard as de qualify facto a legal either that Appeals, must demonstrate Special Court of to extraordinary circumstances exist unfit or that is legal over the rights that third visitation justify granting M., because the objections. According to Janice parent’s way fit that only to a parent, found her be Circuit Court objec- over her visitation required could have properly court extraordinary circumstances. Because by finding tion was extraordinary did that circumstances explicitly court stated in exist, granting that the court erred not she contends liberty K. M. contends that Margaret to Janice visitation her child controlling upbringing a in interest of parent moreover, and, the result requires mandates that conclusion she seeks. that, court has responds once a determined K. fact, found the it has parent,
that a de person facto visitation necessary grant either exceptional circumstances Indeed, Special the Court of argues she that custody. or and, extraordinary circumstances test demonstrates Appeals’ therefore, grant her was correct Circuit Court child on the basis of the best interests argues that there is no constitu- Margaret K. also standard. in which the Circuit Court and analysis tional bar appellate engaged intermediate court or to the determination fact, continues, they parent- reached. she the de facto necessary protect hood standard is a child’s constitutional parent. interest her de maintaining relationship with not yet concept
This Court has addressed the parenthood the context of either a or visita dispute. Accordingly, tion we have never determined what status, legal person if any, non-biologically has vis-a-vis a child, non-adopted related whom he or she estab has a relationship meeting lished requirements a de facto whether, words, parent, person other such a must demon strate that a is unfit or legal circum *19 justify custody stances exist to or rights, when the parent objects. seen,
weAs have the Court of Special Appeals has consid- concept, status, ered the as well as the of a in parent de facto M.D., the context lights of visitation the of v. case S.F. 132 (2000). Md.App. 99, so, 751 however, A.2d 9 It did prior Troxel, the Supreme Court’s decision and our decisions MeDemott That and Koshko. case was dispute between women, S.F., M.D., two who had together lived in a relationship years, committed domestic for six from 1991 until 1997. While their relationship was on-going, gave M.D. birth child, to a by conceived of artificial means insemination. The parties separated years three Following thereafter. the sepa- ration, M.D. denied S.F. visitation with the child. S.F. re- sponded by filing or, alternative, for custody, suit visitation. The trial court found that S.F. was entitled to neither, a timely appeal and S.F. noted Special the Court of Appeals, challenged in which she the on court’s ruling of issue visitation. of Special observed, Court Appeals as a threshold
matter, that a third party seeking custody prevail will if only party that demonstrates that a legal parent is or unfit that 110-111, exceptional circumstances exist. Id. at 751 A.2d at held, however, 15. The appellate intermediate court showing neither is necessary grant visitation where the 684 111-12, to the child.9 Id. at a de facto Supreme that “the Court acknowledging
751 A.2d at
After
Maryland
of
of
Appeals
and the Court
States
of
United
right
parent has a fundamental
that a natural
recognized
have
109,
child,” id. at
his or her
of
regarding
care
14,
Special
determined
Appeals
at
the Court
751 A.2d
“[njevertheless,
may
prece
take
interest of
child
the best
visitation,
custody,
in a
liberty interests
parent’s
over a
dence
“as to the
Id.
Expressing uncertainty
adoption
dispute.”
or
in
issue
right at stake when the
parental
character
termination
custody or the
rights rather
than
volves visitation
Browneller, 115
id.
Wolinski
rights,”
(quoting
(1997)),
concluded
285, 302,
the court
693 A.2d
Md.App.
right
not have a constitutional
“a
does
natural
in the best interest
visitation, if visitation would be
deny all
S.F.,
at 14.
751 A.2d
Md.App.
child.”
parent,
is a de facto
person
whether a
To determine
out
adopted
test set
Special Appeals
Court of
H.S.H-K,
Custody
re
Supreme Court
Wisconsin
(1995),
Jersey
the New
533 N.W.2d
Wis.2d
M.J.B.,
in V.C. v.
748 A.2d
N.J.
Court
Supreme
test, the
Jersey
New
estab-
the Wisconsin and
Under
to prove
of parenthood requires
petitioner
lishment
four elements:
following
to,
“(1)
consented
adoptive
that the
of a
fostered,
formation and establishment
the petitioner’s
*20
(2)
child;
petition-
that the
with the
relationship
parent-like
(3)
household;
together
lived
same
er and the child
parenthood by
obligations
assumed the
petitioner
that the
care, edu-
for the child’s
significant
responsibility
taking
towards the
including contributing
development,
cation and
compensa-
expectation
without
of financial
support,
child’s
need not
support
to a child’s
tion
contribution
petitioner’s
[a
M.D.,
(2000)
Md.App.
N.W.2d at Applying test, of Special Court Appeals concluded that because S.F. qualified as a de facto parent, she was not required to show unfitness of the biologi- cal or the existence of circumstances mak- ing an award of rights in the child’s best interest.
S.F.,
111-12,
Md.App.
S.F., as a legal status in Maryland. We refuse to do so because, even assuming arguendo that we were recognize status, such a short-circuiting the requirement to show unfit- ness or exceptional circumstances contrary to Maryland jurisprudence, as articulated in McDermott and Koshko. Even were we recognize some form of de parent-
hood, the real question in the case sub judice remain, will whether, in a custody or visitation dispute, a third party, non- biological, non-adoptive parent, who satisfies the test neces- sary to show de facto parenthood should be treated differently from other third parties. We have not been persuaded that they should words, be. other where visitation or custody is sought over objection of the parent, before the best interest of the child test comes into play, the de must establish that the legal parent is either unfit or that exceptional circumstances exist. A fair reading McDermott and Koshko leads to no other conclusion. We reiterate what we said McDeimott:
“In the balancing of court-created or statutorily-created ‘standards,’ such as ‘the best test, interest of the child’ fundamental constitutional rights, in private custody [and actions involving visitation] private third-parties where the fit, parents are (i.e., absent extraordinary exceptional) cir- cumstances, the constitutional right is the ultimate determi- factor; native if only parents are unfit or extraordi- *21 686 test exit is the ‘best interest of child’
nary circumstances to be considered----”
McDermott,
418-19,
Clearly,
A.2d
law reviews espe- have terminated and partners relationships when their states, difficulties, partners in some that same-sex cially the or The issues when visitation at issue. experience however, are not limited disagreement, in this inherent myriad other couples and could arise a circum- same-sex stances, grandpar- disputes involving step-parents, including ents, relationship significant with “a other.” parties a fact inquired parties, At we whether the argument, oral sex in the case before parties that the were of same any analysis. on our Neither bearing Court should have a test single it would embrace should. Janice M. argued parties give special for no consideration all third would K., asked, when also not did partners. same-sex Indeed, for she couples. for a different test same-sex argue that, explicit legal statutory is no acknowledged while there adoption under the circumstances authority Maryland herein, petitioned have to become she could presented parent Maya. second-party adoptive have mindful well that several our sister states We are grant visitation statutes created objections legal parents. from the parents despite Johnson, (Minn.2007); 815 Rubano v. N.W.2d See SooHoo (R.I.2000). SooHoo, DiCenzo, N.W.2d statute, Supreme Court considered such the Minnesota (2006).10 257C.08, Determining § Minn.Stat. subd. 257C.08, (2006) provides: § subd. 4 Minn.Stat. person. If has child has with other an unmarried minor resided "If parent, for person, in a other than a foster
resided household person longer person, years or and no resides with the two more *22 face, at statute was constitutional on its 731 N.W.2d the trial upheld grant court the court’s decision to visitation to a stood party, who in loco to the children who parentis action, objections the of the subject were visitation over the children’s adoptive the mother.
The permits grant Minnesota statute a court to reasonable a the person visitation to with whom child has resided for at years. least two The in SooHoo after dispute arose two women, Johnson, SooHoo and ended a same-sex long-term The relationship. couple’s relationship twenty-two lasted and, together their had years prior separation, they lived time, home they jointly. During owned Johnson adopted two from SooHoo attempt children China. did not adopt noted, either child. The Supreme Minnesota Court however, children, co-parented “Johnson SooHoo the mothers, recognized as a unit with family themselves two SooHoo, represented themselves to others such.” N.W.2d at 818.
Following couple’s separation, the SooHoo petitioned for physical legal or, sole the children the alternative, visitation. The trial court awarded visitation un- statute, der Minnesota’s third visitation Minn.Stat. 257C.08, § subdivision The Supreme Minnesota affirmed, holding SooHoo, Court the statute constitutional. 731 N.W.2d Applying analysis, at 821. strict scrutiny initially Court noted that the government possesses a compel- ling interest in “promoting relationships among recog- those (for nized family example, units between a relationship may petition granting person the district an order court for rights during reasonable minority. visitation to the child the child’s grant petition The court shall if it finds that: “(1) child; rights would best visitation be in the interests of the "(2) petitioner and child had established emotional ties creat- ing parent relationship; and child “(3) rights would relationship visitation not interfere between the custodial and the child. child, preference “The court consider shall the reasonable if express the court age considers the child to be sufficient preference.” child) in order to parentis in loco
child and someone Viewing children.” Id. at 822. general welfare of protect one, narrowly tailored the Court stated: as a statute face, 4, is, 257C.08, on its note subdivision that section “[W]e than statute at issue narrowly Washington drawn more award Washington statute allowed courts to Troxel. it any long time so as was any person visitation to contrast, 257C.08, subdivi section child’s best interests. may for petition class of individuals who sion limits the have with the child persons to those who resided In addi (excluding parents). more foster years two nar requirement, the statute further tion to that threshold *23 to may class those who be awarded visitation rows the creating ties have ‘established emotional petitioners who 257C.08, § subd. relationship.’ and child Minn.Stat. 4(2). requirement as mandating read this We with parentis in loco the child----There petitioner stand Troxel, fore, requirements at issue unlike the statute child have resided with the for two petitioner have a years parent-child relationship more may limits the class of individuals who substantially child visitation.”[11] successfully petition SooHoo, at 822-23. The Court held: 731 N.W.2d 257C.08, § limits the class of
“Because Minn.Stat. subd. to may granted third-party be visitation individuals who relationship longstanding parent-child those who have granting child the district court from prohibits with the if not in the best interest or the visitation is child’s and be- parent’s relationship, with the custodial interferes has the petitioner conclude that burden cause we evidence, convincing clear we also conclude proof by unconstitutional, down, Supreme Court did strike 11. The Minnesota portion § was 7 of Minn.Stat. 257C.08 That the statute subd. proof constitutionally place because it failed the burden of deficient opined petitioner party seeking The Court that the on the visitation. required prove requirements 4 of seeking visitation of subd. is convincing § Soo evidence. Minn.Stat. 257C.08 clear Johnson, (Minn.2007). Hoo 731 N.W.2d that it narrowly drawn to the compelling state’s interest in protecting the general welfare of children by preserving relationships of recognized family units. We therefore 257C.08, § hold that Minn.Stat. subd. is not unconstitu- tional on its face.”
SooHoo,
Whether the Maryland General Assembly chooses to enact legislation similar to the Minnesota statute at issue SooHoo course, is within prerogative, its view, and we express no abstract, any as to such statute’s constitutionality, either under the federal constitution or under Article 24 of the Maryland Declaration of Rights. maintains, hand, K. on the other that this
Court recognized has parenthood status as a subset of exceptional Monroe, circumstances. Citing Monroe v. (1993),
Md.
were involved in a custody dispute following their divorce. father,
The putative who had not been married to Beth’s mother at the and, time of conception, therefore, was not father, the presumptively child’s had he believed was Beth’s biological father from the time of her birth. That he was not Beth’s presumptive father became important during the custo- dy dispute, when Beth’s mother sought, and the putative to, father test, submitted a blood proved which he was not the child’s biological father. The putative father nevertheless sought custody, and the master presiding over the evidentiary hearing recommended that putative the father be awarded temporary custody of Beth. parties Both noted exceptions to challenged putative father
the master’s recommendation. test, the mother biological of the blood and admissibility the The Circuit Court challenged custody the recommendation. law, found, as a matter of rejected findings the master’s and the not exist to overcome that circumstances did exceptional the interests were served presumption that child’s best mother. remaining biological with her appeal, proposition this Court reiterated the well-settled On that, father was entitled party, putative as Beth’s the to rebut custody exceptional if circumstances existed only custody belonged biological with the fit presumption that 773-74, the Id. at at 905. We then reversed parent. had not that circumstances finding exceptional trial court’s instead, was shown, ample that “there evidence holding, been that circum- support the master’s determination the that presumption in this case to rebut stances existed in the of her lay being interests with Beth’s best 777, 621 mother.” Id. at We A.2d at 907. reasoned: case, “In not Beth’s respondent the present the birth, to her been only having father is fortuitous. Prior believe, told, come investigation, having after child, he name to be on placed she was his allowed his her as her proceeded birth as father and to act certificate was delivery father. He was room when she present mother, with and her with born and he lived her he both before and after exception periods separation, has, mother, He married her from the time of Beth’s birth. short, child if were child treated the she his to, beyond, from her birth the determina- up the time of birth, the time of until tion that is not. From her [s]he time, recently, only then a short Beth lived time, with County. For much of that she lived Baltimore Even she was petitioner respondent. when petitioner, respon- placed physical custody dent, lib- pursuant separation agreement, to the exercised Indeed, joint custody peti- eral had visitation. he prove further hearing tioner. The evidence tended father; as her she is respondent the child viewed *25 him, bonded and he to her. According Dr. Leon Rosenberg, respondent is Beth’s psychological father.
“On the other side of the ledger, aside from the relation- ship between petitioner, Beth and the no evidence was presented concerning what living arrangements Beth’s would be were custody to be transferred to the petitioner.
Nor was
presented
there evidence
as to the relationship
that exists between Beth and her
paramour.”
mother’s
776-77,
Id. at
Although we noted in Monroe that a psychological bond may form between a child and a third we did party, not suggest this necessarily bond alone will overcome the right of the legal parent custody and control over visitation.
Nor did we conclude that de parent status necessarily such parental overcomes rights. simply Monroe is not incon- sistent with our holdings Koshko, in McDermott and or our holding today.
Monroe was
analysis
based on an
of the record as a whole.
In light of the
Court,
facts before the Circuit
we observed that
“a trier
find,
of fact
did,
could
as the master
circumstances.”
Id. at
“We do express any opinion as to the outcome of this custody matter. We do not wish to suggest that, remand, on custody could not be awarded to the petitioner; it certainly could. We wish simply provide guidance for the trial court in addressing the issue of permanent that, custody. We want to make using clear its independent judgment, the court has to determine whether the circumstances this case are sufficiently exceptional to rebut the presumption should be awarded to the petitioner.”
Id.
Our guidance to the Circuit Court was that it was to consider the totality of the facts to determine whether excep- *26 notes, one of Margaret existed. As K.
tional circumstances the court in Monroe the key psychologi the issues before was emphasized, the child and father. cal bond between We however, that the child’s father’s belief he was putative the that the of her birth. noted biological from time We father the child’s had taken pregnancy, of her mother upon learning test that father analysis prove putative a voice to the stress test parent. actual The mother that passed was the child’s birthing and, result, part a father took putative as the the child’s birth certificate his name on process placed from the couple together her father. The lived the child During that nearly years time of her birth until four later. divorced, they they agreed When the couple time married. custody the child ‘born separation agreement, joint “to primary to parties prior marriage,’ to the their that [mother’s], and that residence of the child would be Id. at 761, at visitation 621 A.2d rights.” would have [father] putative the blood revealed 899. Even after tests that to parent, was the child’s he continued father not a custody. for We noted that such fight visitation situation, even might equitably father have been putative disclaiming his estopped12 paternal obligations: from support Equitable estoppel proceedings child has context of pay applied party refusing prevent states to been in some to from support she or out to be the child after he or has held himself herself D., e.g., parent of See J. v. Mark 7 N.Y.3d a child. Shondel however, not, concept N.Y.S.2d N.E.2d by estoppel.” by estoppel” equivalent "parenthood "Parenthood prevents legal parent denying party or from one legal parent steps or rights previously has taken affirmative where the party child. actions to that as the actual of his or her treat Compare Principles Family Institute, of the Dissolu- American Law Law of 2003) 2.03(b), (softcover § at 107 ed. Analysis tion: and Recommendations 3.03, equitable estoppel § 412. While and the doctrine estoppel may concepts, follow parenthood by be related does not one Zahorik, from, to, necessarily equate the other. See Van v. Mich.App. (refusing to find that a 575 N.W.2d denying equitably estopped support would who could from child be doctrine). necessarily satisfy Michigan’s equitable But cf. 2.03(l)(b)(i), (stating pay any party obligated § child at 107 to by support qualifies estoppel). aas to a child believ- support and care provides a man “Where that he is representations, of the mother’s ing, as a result and, thereafter, and, being after told father the child’s not, indeed, to that he is he prove efforts have been made is, he will be quite likely that he it is continues to insist deny obligation his equitably estopped deemed to be support for the care and child.” provide continue 7, 621 Id. at 770 n. at 903 n. 7. Monroe contention, demon K.’s
Contrary
circumstances
are not established
strates
test,
rigid
analysis
but rather
an
of all
through
*27
case.13 See Sider v.
in
particular
factors before the court
a
Sider,
See
512, 532-33,
1076,
334 Md.
639 A.2d
Troxel,
73,
2064, 147
also
“On the circuit court should consider the Hoffman, supra, any factors set forth Ross v. ing factors, in determining other relevant whether circumstances exist:
‘(1) away the length the of time the child has been from biological parent;
‘(2) of the child when care was assumed age party; ‘(3) effect on the child of a possible change emotional custody; ‘(4) elapsed of time which before the period child; sought reclaim
‘(5) of the between the child strength the nature and ties custodian; and the third
‘(6) desire intensity genuineness parent’s of the child; to have the
‘(7)
stability
certainty
as to the child’s future
parent.’
Whisted,
in Turner
important
“We listed other
factors
[v.
(1992)]:
327 Md. at We Monroe, supra: with a relationship
‘Whether the child has established
party
exceptional
sufficient to constitute
circum-
stances,
in
custody
rebutting
presumption
dependent
development
is not
on its
biological parent,
A relation-
biological parent.
during the absence
bonding
psychological dependence
in
ship resulting
develop
can
without
connection
upon
person
relationship.
biological parent/child
during
ongoing
an
is devel-
relationship
is this true when the
Particularly
fostered,
unit and is
family
in the context of a
oped
and,
life, encouraged by
most of the child’s
facilitated
one with a
relationships,
That the
biological parent.
other
an acknowl-
biological parent
known
and the
fact,
at
non-biological, parent, progress
edged, though,
time,
viable.’
the same
does not render either less
775-76[,
621 A.2d
We would further
906].
329 Md. at
interest of a child to be
ordinarily
note that it is
the best
Hild, 221
siblings.
with his or her
See Hild v.
Md.
raised
349, 359,
442[,447] (1960);
Connolly,
157 A.2d
Melton v.
supra,
219 Md.
[184]
148 A.2d
387[,390];
Hadick v.
(1992).”
915[,919]
Hadick,
740, 748,
Md.App.
603 A.2d
Sider,
532-33,
Exceptional circumstances lyzing any particular and all relevant factors while the Accordingly, psychological visitation case. bond in finding and a third is a between a child factor Likewise, circumstances, it is not determinative. exceptional requirements give that one meets the that would finding status, recog were that status to be person nized, whether strong assessing is a factor to be considered however, not, exceptional circumstances exist. It is determi native as a matter of law.
Accordingly, grant- we hold that the Circuit Court erred grounds visitation to K. on the that she was a de ing without first either that Janice M. was an finding circumstances exceptional unfit or that sufficient exist- care, interest in the liberty ed to overcome Janice M.’s custo- control of her child. dy,
Although the Circuit Court found that circum- exist, we for recon- stances did not shall nonetheless remand its conclu- sideration of that matter. The Circuit Court based *29 Therefore, a to that sion on an standard. remand improper whether, necessary, court to allow it to determine based on is facts, exist. all relevant circumstances THE OF OF COURT SPECIAL APPEALS JUDGMENT REMANDED THAT CASE TO COURT REVERSED. TO REVERSE THE JUDGMENT WITH INSTRUCTIONS THE FOR BALTIMORE COUNTY OF CIRCUIT COURT AND REMAND THE CASE TO THAT COURT FOR TO CONSISTENT WITH THIS FURTHER PROCEEDINGS IN AND IN THE COSTS THIS COURT OPINION. BE PAID BY THE SPECIAL APPEALS TO COURT OF RESPONDENT. J.,
RAKER, opinion. dissents and files RAKER, Judge, dissenting:
I
is clear:
respectfully
thing
Maryland
dissent. One
question
is silent when it comes to the
of visitation
Legislature
family
with children when a non-traditional
is dissolved.
believe that a de
silence, I
the face of this
parties”
“third
and should be treated as the
different
from
obligations.1
legal parent,
rights
of a
with the same
equivalent
Granville,
Troxel v.
57, 63,
ee
530 U.S.
S.Ct.
S
2054, 2059,
697
or she
the status of a cle
establishes that he
fits within
unfitness or
circum-
parent, proof
parental
and the decision as to visitation is
inapplicable,
stances
alone.
by the best interest of the child standard
controlled
origins
The
test has its
Wisconsin
parenthood
defacto
H.S.H.-K,
Custody
of In Re
Wis.2d
case
denied,
Holtzman,
(1995),
cert.
Knott v.
U.S.
N.W.2d
in
Two were to the Supreme Wisconsin petition Court: whether Holtzman could for whether she could for visitation. Id. at The petition court said that she could not petition custody but could petition for visitation based on the judiciary’s equitable power over visitation permissible issues. Petitions for visitation were when a court petitioner parent-like “determines has a relationship with the child and that a significant triggering justifies event state intervention in the child’s relationship biological adoptive with a or Id. at parent.” 435. The Wis- Supreme adopted consin Court the following four-part test: (1) biological adoptive parent must have consented to, fostered, the petitioner’s parent-like formation of a relationship;
(2) the petitioner and the child must together have lived household; the same
(3) the petitioner must have assumed the obligations parenthood by taking significant responsibility for the care, child’s education development, including contribut- to the ing support, expectation child’s without of financial support to a child’s contribution
compensation petitioner’s monetary; not be need in a role for a must have been petitioner have established with the child a of time sufficient to
length bonded, nature. dependent relationship parental Id. 435-36. establishing bar for high
The test set forth Wisconsin status, concerns it could be minimizing factor, broadly. too first applied parent- the formation of a consented to and fostered *31 recogni fear that majority’s like eliminates the relationship, litiga tion of de facto open floodgates will parenthood and the like. See Janice parents foster babysitters, tion (2008) K., 661, 686, M. 948 A.2d Margaret 404 Md. (“The myriad ... arise in a of other circum issues could stances, grandpar including disputes involving step-parents, ”). ents, significant with ‘a other’ relationship and a parties necessity significant also the of a The court discussed child’s rela- state intervention a justify event triggering The court biological adoptive parent. a or tionship with reasoned as follows: event state significant triggering justifying
“To establish relationship in the child’s with a intervention parent this petitioner prove must adoptive parent, substantially petitioner’s parent-like with the has interfered child, petitioner sought and that relationship with within a reasonable time after court ordered visitation interference. parent’s all elements before a circuit prove
The must these petitioner whether is in the best interest may court consider The must focus on the child. proceedings of the child. relationship dissolving, adult When a non-traditional a victim of turmoil and adult likely child is as to become subject to the dissolution of a mar- hostility as is a child of child needs and deserves the riage. Such a projection dissolving much of a traditional the courts as child relationship.” (citations
H.S.H.-K., 533 N.W.2d at Wis.2d omitted). H.S.H.-K, adopted
Since the American Law Institute has and for a in a treatise promulgated definition defacto setting governing forth the allocation of custodial principles and children. decision-making responsibilities for See Janice K., 661, 681, (2008); M. v. 404 Md. 948 A.2d Principles Family Institute, Law American Law Analysis 2.03(l)(c) Recommendations § Dissolution: Principles (“ALI 16,2000) (adopted May Law Family Dissolution”).2 2.04, §In the American Law Institute includes a de as one of parties standing facto to bring an action for the determination of custody, subject to the best interests of the child analysis.3 commentary 2.03(c) § requirements indicates that for becoming “[t]he a de strict, parent are to avoid unnecessary inappropriate intrusion into the relationships legal parents between The definition for a de is set forth in the American Law Principles Family Analysis Institute, the Law of Dissolution: 2.03(l)(c) (2003) ("ALI § Principles Recommendations of the Law of Family Dissolution”), as follows: *32 parent “A de legal parent is an individual other than a or a facto who, parent by estoppel significant period for a of time not less than years, two (i) and, lived with the child (ii) primarily for reasons compensation, other than financial agreement legal parent parent-child with the of a to form a relation- ship, complete or as inability any a result of a legal failure or of functions,
parent
perform caretaking
(A) regularly performed majority
caretaking
a
of the
functions for
child,
(B) regularly performed
caretaking
a share of
functions at least as
great
parent
as that of the
primarily
with whom the child
lived.”
parties
legal parent,
3. Other
parent by estoppel, biological
include a
a
a
parent, an
responsibility
individual allocated custodial
or decision-
making responsibility regarding
existing parenting
the child under an
plan,
grants permission
or where the court
for intervention because it
determines
circumstances exist. ALI
Principles
of the Law
§
Family
2.04.
of
Dissolution
Family
Principles
their children.”
ALI
the Law of
legal
The
that the
requirement
§ 2.03 comment c.
Dissolution
relationship,
a parent-child
to the formation of
parent consent
that would
legal parent
failure of
barring any complete
unfitness,
fear that the
again assuages any
parental
amount to
liberty
parents
interest of
standard conflicts with
in
identified
Troxel.
and care of their children
custody
recognized
have
Many of our sister states
facto
“a
a
otherwise considered as
party
status entitles
parenthood4
in
parent
visitation or
equal standing
legal
party”
Court
Supreme
The Massachusetts
Judicial
custody matters.
L.M.M.,
parent
E.N.O.
recognized
concept
defacto
denied,
(1999),
L.M.M. v.
cert.
711 N.E.2d
Mass.
E.N.O.,
custody and
access to a
petitioner
mother had denied
biological
The
The court
relationship.
the course of their
during
child born
traditionally enjoyed
probate
court
family
held that the
and,
statutory authority,
lack
spite
of a
equity jurisdiction
that,
interest of the
find
to the best
pursuant
the court could
child,
should be allowed
the child’s de facto
court was in
holding
of the
with the child. Id. at 892-93.
“recognition
conclusion that
of de
based on its
part
family.”
notions of the modern
Id.
is in accord with
parents
explained
The court
as follows:
family
a nontraditional
may
“A
be a member of
child
parent.
and a
by legal parent
parented
which he is
defacto
no
relation to the
A
is one who has
defacto
life as a member of
child,
the child’s
participated
but has
with the
family.
The de
resides
the child’s
and,
encouragement
legal
the consent and
child
status,”
"parent-like
"psychologi-
terms such as
4. States have used
or visitation
parenthood”
cal
to address a third
who seeks
played
upbringing.
party has
role in a child’s
because that
H.S.H.-K.,
See, e.g.,
Custody
193 Wis.2d
701 parent, performs share of caretaking functions least as great legal parent. as the The de parent shapes the facto routine, daily needs, child’s addresses his developmental child, disciplines provides for his education and medical care, and guide. serves as moral of de recognition parents is accord with the facto
notions of family. the modern An increasing number of gender couples, defendant, same like plaintiff are to have It deciding children. is to be that expected children families, children, of nontraditional like other form parent relationships parents, with both parents whether those are Thus, legal or de the best interests calculus must facto. include an examination of the child’s relationship both legal his parent.” defacto (citations omitted).
Id. at 891
and footnotes
See also V.C. v.
M.J.B.,
200,
163 N.J.
P.2d 660 (Ct.App.2002) (recognizing same-sex dual parent
relationship and reversing trial court’s ruling
coparent
that a
ing agreement
denied,
per
unenforceable),
was
se
cert.
C.B. v.
A.C.,
113 N.M.
Courts have continued to recognize the
parenthood
de facto
concept post-Troxel.
In In re Parentage of L.B., 155 Wash.2d
(2005),
denied,
Carvin,
P.3d 161
cert.
Britain v.
U.S.
(2006),
S.Ct.
its ” Id. at 165. The court con- ‘parents’ terms and ‘families.’ of de parties satisfy requirements who cluded facto parents biological adoptive are “in with and parenthood parity state,” follows: explaining in our as support recognizing and sense exis-
“Reason common rights them the according of de parents tence facto to in this state. parents which attach We responsibilities to fill that our today our common law the interstices adapt fails in a manner legislative current enactment to cover legislative policy. with laws and stated consistent our a de Washington, hold henceforth We thus facto legal parent, with an otherwise legal parity stands parent such, biological, recog- or otherwise. As adoptive, whether necessarily child’s de person parent nition of a as a facto rights an parental to consider award of [a] ‘authorizes court of ... on determination responsibilities based its A de is not entitled parent interest the child.’ best facto only but as right, as a matter of any parental privileges, in the best of the child is determined to be interests any dispute.” center of such (citations omitted). 176-77 and footnotes See also
Id. at (Me.2004) D.E.W., (recognizing A.2d 1146 C.E.W. v. 845 in parity placing status and defacto 585, Johnson, S.C. 633 statutory parent); Middleton 369 (finding ex-boyfriend that an who (Ct.App.2006) S.E.2d years recognized nine as a lived with child for should be parent, gaining or de psychological N.E.2d 241 In re 97 Ohio St.3d rights); Bonfield, (2002) state statute defined (finding specifically that because it ... broaden the nar- “inappropriate would be “parent,” same-sex persons” biological row class of to include mother’s “not the benefit of and thus was entitled to partner partner are a familial ar- clearly inapplicable statutes that to such jurisdiction but courts do have rangement,” concluding petition preempted by consider for shared as not L.R.M., statute); T.B. v. Pa.
(concluding lesbian partner
“assumed a
status and
discharged parental duties
with the consent of [the
standing
and thus has
person
parentis
mother]”
loco
bring
visitation);
action for partial custody and
In re Parent
A.B.,
126, 131-33
age
818 N.E.2d
(Ind.Ct.App.2004) (holding
permits recognition
common law
same-sex partner
former
of biological
legal
mother as
coparent
of child conceived
artificial insemination during
E.L.M.C.,
relationship);
re
100 P.3d
558-61 (Colo.Ct.App.2004) (finding a compelling
state
interest
preventing harm to child satisfies strict
scrutiny
analysis
affirming recognition
“psychological
parent” doctrine in context of
partner’s
former same-sex
*35
petition
time),
denied,
for equal parenting
cert.
Clark v.
McLeod,
545 U.S.
125 S.Ct.
“consider the primary question constitutional passed on by the Washington Supreme Court—whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a not, and visitation. We do precedent granting
condition not, parental due today precise scope need define in the visitation context.” process right Granville, 73, 120 Troxel v. at 2064. 530 U.S. S.Ct. to determine de
Furthermore, parenthood test person pre- allows a to overcome the narrowly tailored and parent’s rights in favor of natural after sumption only parent he or she is in essence party demonstrates that Joseph Murphy, explained, F. Jr. Judge child. As Chief M. v. Janice Special Appeals the Court of writing for Margaret K.: claims to be a child’s person
“The who (1) (2) successfully pleading, must shoulder burdens evidence, and can take production persuasion. We occupied by that in adults judicial every notice almost home on some children, the functions perform adults test, howev- quoted of the children. Under the above behalf er, who functions is not enti- performed parental a person fact tled the court finds as a status unless defacto such a actually the child’s has fostered legal M.D., S.F. v. the test relationship. adopted Because we supra, is a strict one, holding neither our that case nor *36 the holding open floodgates our case at bar will claims of who can persons asserted parenthood that, with natural prove nothing living more than while the child, they parental some adoptive parent performed of a behalf of the child. functions on bar, the the at in which the
“Rare are case like case (as was with evidence that summa- presented circuit court counsel) ‘Maya K.’s was argument Margaret rized in the of in this until every day country with of her life Margaret [K.] Margaret has August only [K.] of reason 2004[and][t]he relationship to have a with deprived opportunity been the her she on that decree of daughter because wasn’t ” adoption.’
705 K., 528, 539-40, 171 M. v. 910 A.2d Md.App. Janice (2006)(transliteration 1145, 1152 agree I original). the with Chief Judge Murphy.
The Court’s Supreme opinion Troxel v. Granville did not Troxel, prohibit recognition the of de parents. See U.S. at 120 S.Ct. at ... (noting “special factors might justify the State’s interference with [the right concerning fundamental to make mother’s] decisions [children]”). rearing of The her Court refused to Supreme interest, define specific scope parent’s liberty leaving the states to address the matter. majority As the in this case notes:
“The plurality declined to define precise [in Troxel] scope of process right due visitation context and declined to answer the question of whether the Due Clause all requires nonparental Process visitation stat- utes to showing include harm or Id. at potential harm. Instead, at 2064. holding S.Ct. the Court rested its statute, on the sweeping Washington breadth stating as follows: respect,
‘In agree this we that the Kennedy Justice constitutionality of any standard for awarding the specific turns on manner in which that standard is applied and that the protections constitutional in this area are best ‘elaborated with care.’ Because much state-court basis, adjudication this context a case-by-case occurs on we would be hesitant to hold specific nonparental visitation statutes per violate Due Process Clause as a ” se matter.’ K., 661, 674, See Janice v. Margaret M. 404 Md. (2008) (citation omitted). noted plurality Troxel
lack of “special factors” justifying par interference with the interest, ent’s liberty comparing Washington statute to states, other where a standard is that a required showing (or denied) parent “has denied unreasonably visitation to the Troxel, party.” 68, 71, concerned third at U.S. 120 S.Ct. Souter, concurrence, 2063. Justice in his criticized *37 statute not Washington requiring for a “substantial rela 706 77, Id. at 2066. matter. 120 S.Ct. at
tionship” as a threshold
further,
fit
in his
that “a
Kennedy
noting
went
dissent
Justice
her
complete stranger
thing;
is one
parent’s right vis-a-vis a
or a de
be
may
right
another
vis-a-vis
facto
Id. at
100-01,
parties,
parents.
the distinction
(delineating
at
“Whether the has established with a third party sufficient to constitute exceptional circum- stances, rebutting the presumption of in the biologi- parent, dependent cal is not on its development during the of the A biological parent. absence in relationship resulting bonding psychological dependence upon person with- biological out can develop connection an during ongoing biological parent/child is relationship. Particularly this true the relationship developed when is context a family fostered, and, unit and is facilitated for most child’s life, by encouraged parent.” status, Id. Monroe supports argument de facto established, if pure is different from a party. provides
Monroe also support for an alternative basis for applying the best interests analysis, child the recogni tion of a parent by notes, estoppel. As the majority we theorized that putative might “the father even have been equitably from estopped disclaiming obligations.” his K., 661, 73, See Janice M. Margaret 692, v. 404 Md. 948 A.2d 91-92 We said in explicitly Monroe “it quite is likely that man providing support [a care believing he is the child’s will be father] deemed be equitably estopped to deny his obligation to continue provide for care support for the child.” Id. at 770 n. 903 n. 7. While the majority argues that equitable estoppel is not an equivalent concept parenthood by estoppel, M. see Janice K., Md. 692 n. 948 A.2d 91-92 n. 12 (2008), the American Law Institute’s definition of a by estoppel who, any includes individual though not a legal § under 3 of the pay support child obligated is
parent, equitable for the kind of provides Section 3.03 treatise.5 The recognition discussed Monroe. estoppel we denying from equitable estoppel pa bond and psychological founda strong Monroe suggested provide support rental status recognition parenthood tion Maryland law. brief, her that a finding K. out in points
As Margaret
not result automati-
qualifies
as a de
does
person
leads to the
only
Such determination
cally
rights.
See,
of the child?
the best interest
question:
next
What
*39
L.B.,
(stating
“[a]
re
ests of child and lack of substantial right requirements). meets Troxel above, I would hold that a de
For the reasons noted legal parent, with a whether legal parity stands otherwise, purposes or for the of visita- biological, adoptive, I would not the threshold determina- Accordingly, apply tion. circumstances that tions of unfitness A party we in McDermott and Koshko. who has required a child’s de should demonstrated that he or she is if rights be entitled to visitation such a result is the best interest of the child.