Matthew W. Pitts v. Amanda M. Moore

decision and Tax Court’s firmed the subject to tax liens of

Bailey is therefore million, and because

approximately $4.5 Bailey evidence that record contains financial maintaining proper difficulty

has analysis

records, evidence and additional Bailey’s whether necessary to evaluate

are could create risk obligations

personal we would remand public. Accordingly, single justice to take

the matter for whether the risk

evidence and reconsider mismanage funds in the Bailey would tax debt paying his substantial

context to the Bar his admission

would render interest.” public ...

“detrimental 7.3(j)(5).

M. Bar R.

2014 ME 59

Matthew W. PITTS M. MOORE.

Amanda

Docket No. Yor-12-440. of Maine.

Supreme Judicial Court

Argued: May 2013. April

Decided: Bradley Bourque, Esq.,

Ronald D. and Morin, Esq. (orally), Bourque Clegg, & C. LLC, Sanford, for appellant Amanda Moore. Fairfield,

Amy (orally), L. and Esq. Peltier, & Esq., Mark J. Fairfield Associ- ates, P.A., Lyman, appellee Matthew Pitts. SAUFLEY, C.J.,

Panel: and MEAD, ALEXANDER, LEVY, SILVER, GORMAN, JABAR, JJ. SAUFLEY, C.J., MEAD, Plurality: GORMAN, JJ. JABAR, JJ. Concurrence: SILVER LEVY, ALEXANDER and JJ. Dissent: GORMAN, During pregnancy, father. Moore’s Pitts J. prenatal appointments attended some appeals Amanda M. Moore from class, at the birthing present and was in the District Court judgment entered hospital for the child’s birth. Moore and J.) Danin, finding that Mat- (Springvale, the father on agreed Pitts to name Pitts as Pitts' is her child’s de facto thew W. certificate, give the child’s and to birth and its of contact on that basis. We award child Pitts’s last name. opportunity provide guidance take this grappling and courts with claims parties Pitts, Moore, the child lived 5] [¶ asking to identified as de by persons be together from November of 2009 until No- parents, judgment facto and vacate the separa- vember of with a one-month and remand the matter to the District in tion June of 2010. From the child’s proceedings. Court for further birth, primary Moore was the child’s care- taker. Pitts was the sole source of finan- I. BACKGROUND support cial for the household for the first life; seven months of the from child’s then Pitts and dated and lived [¶ Moore 2] on, worked, Moore also but Pitts remained together again, again” on an “on off basis primary wage the earner. The court eight years. separat- for more than While found that Pitts’s “involvement with the ed in from Pitts Moore dated Eric B. child playtime, was more focused on with after, Hague for a few months. Soon Pitts feeding occasional and less occasional relationship, Moore resumed their bathing changing [diapers].” Pitts pregnant. Moore learned that she was believed that he the primary because was The child was born in November of 2009. earner, mid-2011, wage primarily respon- Moore was By Pitts’s and Moore’s relation- child, caring sible for for the but Pitts did ship had ended. take care of the child when Moore was not present litigation began [¶ The in 3] home. July complaint when Pitts filed a against the District Court Moore seek- separated, After Pitts and Moore ing parental responsibilities family regular Pitts and Pitts’s had contact In concerning response, child. her child, with the including multiple visits Moore asserted that Pitts was not the overnight each week and an occasional vis- father, and, biological paterni- child’s after April it. Pitts and Moore ty testing completed, stipulated was Pitts reconcile, attempted again and Pitts

to that fact. On parties’ stipulation, spent significant time with the child in the proceeded the matter thus as one of as- however, family household. In May, parenthood.1 serted de facto parties argument had an after which After hearing, a testimonial the Moore protection filed a from abuse com- fact, following findings Pitts; court made the plaint against prohibited Pitts was supported by all of which are seeing during substantial from child month that, evidence in the Although following filing. record. Moore After Pitts had pater- “mostly Pitts were unsure of the child’s consistent” contact with the child nity, they identify decided to Pitts as the consisting supervised contact for five protec- rights against Hague, biolog- This matter was consolidated with a rental the child's father; tion separate judgment from abuse matter between Moore and ical was issued in Pitts, which Moore later It dismissed. was that matter. Neither of these two other ac- pa- also consolidated with Moore’s action for tions is before us. any making power or the eluding to an interim decision Sunday pursuant each hours duty pay support.2 rights order. timely appeals, argu Moore biological fa- is the child’s Hague 7] [¶ judgment is erroneous as a ing military duty in the He is on active ther. law; matter of fact and she asserts that Wisconsin, he lives where and stationed life has been Pitts’s role the child’s wife, son, stepchildren. and two his inconsistent, short, daily and devoid of the for a total of a met this child twice He has caretaking functions that characterize a de he wishes Hague testified that few hours. parent; that Pitt’s removal from the child, and he and a father to the to be child’s life will cause no trauma Hague know want the child to Moore child; of time the and that the amount visit Maine plans father.” He his “real inappropriately awarded Pitts was court summer year during each a few times because it intrudes on the generous par do not Hague Moore and holidays. relationship ent-child between Moore and any with the Pitts to have contact want child, Hague and between and the court found that neither has but the findings review the court’s of child. We Hague how to introduce into considered error, fact for clear its conclusions of law life, intro- impact Hague’s child’s of novo, de and its ultimate award of visita child, the removal of on the or how duction tion for an abuse of discretion. Grant v. family from the child’s life Pitts and his Hamm, 79, ¶6, 789; 2012 ME 48 A.3d would affect the child. Theriault, Philbrook v. 2008 ME The court found that Pitts unequivocal permanent has made an to the child and considers II. commitment DISCUSSION him be his son.... The child has to now, For some time we and oth- of attachment with [Pitts] formed bond considering er courts have been the law of disruption A family. complete and his in parentage light of advancements im- would have an adverse of that bond technology, changes social norms and However, the testi- pact on the child. structures, family resulting and the ever- for mony and evidence was not sufficient legal relating to expanding list issues quantify impact the court to See, e.g., and families. Nolan v. children family from removal of and his [Pitts] LaBree, 61, ¶2, have, any to make the child’s life will nor (regarding gestational surrogate who of said ad- finding as to the duration to not bio- carried a child whom she was impact. verse related after in vitro fertilization logically Delaware, zygote implantation). and its other find- language Based on this family example, changes that Pitts is the for structure ings, the court determined attributed to “at and that continued have been identified and child’s de society three areas in our which have contact with Pitts is in the child’s best least (1) undergone significant change,” namely, right interest. Other than the technological scientific and unsupervised contact with the “considerable (2) advances,” impose acknowledgement on Pitts “the court did not award to or many persons in- states of the any parental rights responsibilities, denied Moore’s motion to end See M.R. Civ. P. 2. The court pending appeal. Pitts's contact with the child parents of the unfit to be considered is determined be an same sex ... “normally there is no reason for the child,” change “the from what same inject private State to itself into the realm knew as the traditional American we once family question ability of the to further consisting parents of two married family” of that to make the best decisions Jameson, children. and their Bancroft concerning the rearing parent’s (Del.Fam.Ct.2010). 730, 738-39 ¶¶ children.” Supreme States rec- As the Court United (alteration omitted) (quo- years ago, than a dozen ognized more omitted). Among many tation marks demographic changes past [t]he aspects right fundamental century speak make it difficult to of an right may to decide who associate with average family. composi- American The ¶ Guardianship child. See id. greatly from tion of families varies M., Jewel A.3d 301 many household to household. While (recognizing presumption “a that fit par- parents children have two married ents act in the best interests of their chil- regularly, visit grandparents who dren,” including respect requests with are raised in many single- other children third-party visitation or Understandably, households.... omitted)). (quotation marks households, single-parent per- in these Nevertheless, a parent’s 12] [¶ family sons outside the nuclear are liberty “constitutional interest in in family upon increasing frequency called absolute, tegrity is not ... nor forever free everyday assist in the tasks of child from state interference.” 2000 rearing. ¶ 198, 19, ME 761 A.2d 291. This is true Granville, 57, 63-64,120 v. Troxel 530 U.S. great in part because the of another 2054,147 (2000) (plurality S.Ct. L.Ed.2d 49 protected child—must also be —the Riendeau, opinion); see Rideout v. 2000 Thus, by the State. any the focus of stan ¶ 198, 37, C.J., (Wathen, ME 761 A.2d 291 by dards which the State is allowed to concurring). must, by necessity, interfere include the Despite these shifts in child. the State When does interfere with structure, family and social it remains right fundamental to we must “firmly parents established” that have “a evaluate that interference with strict scru liberty fundamental interest to direct the tiny highest scrutiny level of —the —which care, custody, and control of their chil “requires that the action State’s be nar Anderson, 125, dren.” v. Davis 2008 ME rowly compelling tailored to serve a state ¶ 18, Troxel, (citing 953 A.2d 1166 530 U.S. interest.” Id. Pursuant to the strict scru 65, 2054); Rideout, at 120 S.Ct. ME standard, tiny we have limited State’s ¶ 198, 12, 761 291 (plurality opinion). A.2d parent-child intrusions into the relation preserve To that right, recognition and in ship to those instances which there is presumption that parents act in urgent some reason3 or excep there are interests, their children’s best unless a tional affecting circumstances the child 1942, stated, then, right 3. we making. regu- "The natural decision Since we have larly "urgent to the care and phrase control of a child used the reasons” when only urgent discussing rights. should be limited for the parental most State intrusion into Bussell, 118, See, Pariseau, 54, e.g., reasons.” Merchant v. 139 Me. Robichaud v. 2003 ME ¶ 122, 1212; (1942). 10, Roberts, "Urgent 27 A.2d 816 reasons” 820 A.2d v. Croxford (Me.1986); compelling Stanley Penley, constitute the State interest neces- A.2d v. (1946). sary parent's for the State's intrusion into the 142 Me. 46 A.2d We harm to the child will rights when parent’s Robichaud intrusion.4 See justify the ¶7, Pariseau, govern- 820 A.2d the absence of such result from v. Bussell, 1212; 189 Me. In re Merchant mental interference. See Jazmine (1942). L., 125, ¶¶12, 14-15, 2004 ME Thus, to the Child and pursuant 1277. four statuto- currently are There Act, Protection Family Services and Child allows Legislature which the ry means (2013), the §§ 4001 to 4099-H M.R.S. courts, State, to order through non-parent may place a child with State non-par- to a visitation rights or neglect. the child from abuse or protect three of the four to have addressed ent.5 We case, and, we Similarly, may in each a court statutory means6 22 M.R.S. whether, when, light a child inter guardian have considered appoint contemplated, alia, interference government certain harm- subjected the child is to exists. State interest compelling required circumstances, “temporarily such as a ful ... 18-A living intolerable situation.” scrutiny, of strict the lens Using (2013); Guardianship M.R.S. 5-204 see have, date, only two recognized we to M., 17, 12, 989 A.2d Jewel that are circumstances types exceptional (discussing guardianship that the stat- the State’s in- justify legally sufficient requirement proof ute’s right with the fundamental terference is unable to meet the child’s needs consti- First, recognized that we have parent.7 satisfying “urgent lim- tutes an reason” strict interest compelling has a the State terminating scrutiny). or even iting, restricting, “urgent,” and see In re "compelling,” note here that 57, ¶ C.P., adjectives “exceptional” intended to are all heightened interest the State must address the statutory pur- are: 5. These four methods in a present before it interfere Family the Child and Services and suant to "exceptional right We use to raise a child. Act, the State Child Protection allows which precise indi- here as the most circumstances” place non-parent protect a child with a heightened interest. cator of that neglect, 22 the child from abuse or see M.R.S. 4036(1)(F); (2) pursuant Grandpar- § to the procedural pro- employ additional

4.We also Act, §§ M.R.S. 1801— ents Visitation 19-A in matters in an effort to bal- tections such (2013), grandparent to 1805 which allows a right at stake with the ance the fundamental rights of visitation or ac- seek "reasonable necessity See Rideout for State intervention. circumstances, 19-A cess” in certain limited 198, 19, ¶ Riendeau, 1803(1); (3) v. pursuant 19-A § to M.R.S. Conlogue, (plurality opinion); Conlogue 1653(2)(B) (2013), v. provides § M.R.S. which 12, 13, ¶ may rights 691. For 2006 ME exam- court award reasonable ”[t]he Family person” of contact with a minor child to a 3rd ple, pursuant to the Child and Ser- Act, rights within the context of a 22 M.R.S. vices and Child Protection Anderson, order, responsibilities see Davis v. (2013), may §§ the State 4001 to 4099-H (4) right temporarily interfere in an individual’s pursuant guardianship provisions of the to the only deter- parent a child when a court to Code, 18-A M.R.S. 5-204 Probate see evidence, mines, by preponderance a of (2013). subjected the child to the individual has in of "serious abuse or "jeopardy” the form yet the nature or 6. We have not evaluated 4035(2); 4002(6), §§ neglect.” 22 M.R.S. see remedy provided by 19-A M.R.S. extent of C„ 258, 13, 721 In re Christmas 1653(2)(B). right Additionally, an individual’s A.2d 629. area, may terminated Legislature, or her child be this to his 7. The when it acts in that, higher policy, only pursuant may burden of clear and determine as matter of to a C., circumstances. State interfere in other convincing In re Christmas should evidence. Second, panoply that there award full we have held could involve an 15] [¶ to allow the exceptional parental rights responsibilities are circumstances of to right in the to State to interfere non-parent, required showing we have of necessary preserve when a child’s “suffi- in harm to the child the absence of such to a existing relationship” grandpar- cient government interference. Passalaqua, Passalaqua ent.8 us, In the matter before we exceptional 908 A.2d 1214. Such upon are called to consider how a only recognized been circumstances have biological adoptive parent who is not a or Grandparents within the confines of the objection over may, child’s fit Act, §§ 1801-1805 Visitation 19-A M.R.S. biological adoptive parent, or obtain not (2013), however, by Legislature which the child, just contact with or to the but access allowing grandpar- codified a method of that full panoply contact with a child over a continuing ent’s responsibilities parent. as a de facto Be parent’s objection fit in certain limited cir- cause the extent of such an intrusion into a cumstances, proof the absence substantial, parent’s rights fundamental harm child. below, for the explained reasons The distinction between the ex- may court determine that an individual is a inter- ceptional required circumstances parent only child’s de facto when the fail protection guardian- vention a child ure or refusal to so determine will result in i.e., ship opposed harm —as matter — harm to the child. adequate support those an award of i.e., grandparent a sufficient ex- visitation — Establishing A. De Facto Parenthood isting relationship the difference —reflects Parenthood is meant to be in the extent of the intrusion into the Legislature, steeped defined as it is parent’s rights. protection In both child policy in matters of requiring weighing pursuant guard- actions to title and in 18-A, multiple viewpoints. See Miller v. ianship pursuant matters to title Youakim, 142 n. parent’s interference with a fundamental U.S. S.Ct. extensive, may rights including (stating be the ac- L.Ed.2d tual system removal of a child from a the foster care involves “issues of care. Pursuant to the Grandparents legislative policy Visi- are better ad [that] Act, contrast, tation the court legislature] dressed the wisdom of [the (alter only judgment award “reasonable of visitation than to the of this Court” omitted) omitted)); only (quotation access” to the and even then ations marks (Me. State, 699, to the extent the award does not Brann v. 424 A.2d 1981) (“It “significantly any parent- interfere with the appropriate legislature with relationship rather than the court to make the policy rightful authority over regarding practicable the child.” 19-A decision what is in a 1803(3). short, situation.”) given M.R.S. In in those mat- Although we have been currently recognized ters in Maine that discussing parenthood de facto for almost considering relationships parentf significant 8. Even in what are for a [a] ] child[] 12, existing” excep- period ConlogUe, “sufficient ones to meet of time.” 2006 ME 9-10, 17, ¶¶ requirement (quotation tional circumstances of strict 890 A.2d 691 marks however, Robichaud, ¶ omitted); scrutiny, we have so far set the bar see 2003 ME 1212; Rideout, ¶27, 198, high by quite requiring proof of “extraordi- 820 A.2d 2000 ME contact,” i.e., 291; 125, Davis, nary proof non-parent that the 761 A.2d see also 2008 ME 15, ¶ seeking rights to the child has "functioned as 953 A.2d 1166. father. Id. 2-3. The currently biological no child’s years,9 there is thirteen par- facto statutory reference to de man had been declared as the child’s fa- Maine opportunity documents, take this variety legal enthood. We ther on a in- that, evolving given the again emphasize child’s birth certificate cluding the need for a of families and the compositions judgment, and had parties’ divorce acted be best this issue would approach, careful her father since her birth. Id. 2. In Legislature. by addressed attempt paren- to his to maintain response we held the court rights, tal ac- Legislative In the absence “person to a significant award contact unsettled important tion in such an however, to the child” who has had more than area, guid- some bonds provide we must relationship a “limited to the child.” Id. courts faced with de facto ance to trial See Med. 17 n. 6. parenthood petitions. Cheshire Co., 26, 33 v. Grace & 49 F.3d Ctr. W.R. Since our announcement in 2001 Cir.1995) (1st (“Ordinarily public issues that in some circumstances we would rec- appropriate are in the first instance policy ognize parents, we have had occa- legislature’s by for a determination statute concept only sion to discuss the four statute, and, by may be if not determined D.E.W., v. 2004 ME cases—C.E.W. by a state court of last resort determined 1146; Young Young, A.2d 2004 ME setting precedents.”). Al- in its decisions 1144; Boardman, 845 A.2d Leonard v. in Rideout we discussed the consti- though and Phil- tutionality Grandparents of the Visitation brook,

Act, grandparents “par- had acted as C.E.W., agreed two women that one of involved, in our ents” for the children through them would conceive child artifi- of their circumstances we noted discussion insemination, signed par- cial and both statutory jurisdictions, that other “without enting agreement detailing equal their authority, have modified the common law ¶43, 2, rights to the child. 2004 the door to visita- presumption opened years A.2d 1146. Five after the child’s the de tion adults who have become birth, couple separated and the non- of a child.” 2000 ME parent[s] facto biological mother instituted ¶ 40, (Wathen, C.J., concur- ¶¶ 1, 3, proceedings. Id. 5. We discussed de later, ring). Five months we concluded per- facto in terms of “third person might parent- that a obtain de facto played sig- an unusual and sons who “through hood status in Maine the devel- life,” parent-like nificant role in a child’s relationship over opment “permanent, and characterized role as Henderson, time.” Stitham v. committed, unequivocal, responsible,” ¶52, J., (Saufley, concur- precisely but we did not determine its case, ring). In that a man and woman given parties’ agreement parameters years were married for seven before the non-biological parent was a de to a child. Id. 2. The gave woman birth ¶¶ 9, Rather, in parent. Id. 13-14. when the child was three parties divorced C.E.W., old, only we were concerned with the years the man not learn until but did remedy parental rights after the divorce that he was not the of an award of non-biological custody phrase Our mention of the "de facto award of child to a 9. first parents” appears in 2000 ME objection biological parent over the ¶ 39, (Wathen, C.J., concurring). 291 See, Merchant, parent. e.g., 139 Me. at 120- stage the for de facto Earlier decisions set 24, 27 A.2d 816. however, by discussing parenthood, the 1178 parties the stipulate grandparents standing when did not have

responsibilities action, pursue parental rights grand- a relationship parenthood a de facto ¶ ¶¶ Id. 14. In parents appealed. affirming Id. 14-15. exists. judgment, we held that de facto par- Young, a man married a [¶ 21] application, enthood is a doctrine of limited already had a and the who woman employed putative to be “when the de together. a child 2004 couple then had parent facto has ‘undertaken a permanent, ¶ A.2d 1144. ME 845 When committed, unequivocal, and responsible after parties began proceedings divorce ” ¶ role in the child’s life.’ Id. Court, the District on years, five C.E.W., 43, ¶14, (quoting 2004 ME grounds jurisdiction, that it lacked refused 1146). A.2d We also noted that in each role in stepchild’s to consider the man’s his recognized person case where we as a de awarding parental life in and re- person facto had been under- parties. between the Id. sponsibilities and acknowledged parental fig- stood as a ¶¶2-3. judgment We vacated the after ure both the child and the child’s bio- concluding “pos- the District Court logical adoptive parent. or Id. 23. powers sesses broad to ensure that a child In our discussions of de facto not, cause, without does lose the relation- parenthood in Maine through these five ship with the who has previously decisions, yet we have not determined acknowledged been to be the father precise parenthood what test of de facto through development the parental of satisfy will the exceptional circumstances ¶ (alteration relationship over time.” Id. 5 requirement scrutiny. of strict See id. omitted) omitted). (quotation marks (“[W]e precisely not defined the Leonard, Similarly, in man be- parameters parent of the de facto con- gan woman, a relationship pregnant with a ...”); C.E.W., cept. couple and the eventually began living to- (“We A.2d do not address the sepa- gether and had two more children over the rate and more fundamental question byof ¶¶ course of years. seven 3- what standard the determination of de fac- Later, in a corpus habeas made.”). parenthood be should We also action, the court found that the man was have not proof announced the standard of the de facto parent of the eldest child. Id. to be applied in such a determination. ¶ 11. We remanded the matter for a de- encourages Moore us adopt termination of and respon- test of de facto set out ¶¶ sibilities based on that finding. Id. 17- Institute, American Law Principles of 2.03(l)(c) Law Family Dissolution Philbrook, Finally, in [¶ a woman (2002), 23] which defines a de facto as a and her children lived with the who, woman’s person more, years for two has parents periods for of time over span lived with the performed child and at least years. ten caretaking A.2d as much of the for the child as Stitham, 74. When the trial court determined that the legal parent.10 See Institute, and, Principles (i) 10. American Law lived with the child 2.03(l)(c) (2002) Family (ii) Law Dissolution primarily for reasons other than fi- defines a de facto as follows: compensation, nancial and with the (c) agreement legal parent A de is an individual to form a oth- legal parent parent-child er parent by estop- relationship, than a or a or as a result of who, pel significant period complete inability any legal of time failure not years, functions, less than two parent perform caretaking to Philbrook, life,” J., in the child’s parental role (Saufley, concur- 768 A.2d 152, ¶22, (quoting Institute also A.2d 74 American Law The ring). parent by 1146), C.E.W., the definition of set forth has any not make (2) Moore does estoppel, but exceptional that there are circum- and Ameri- principle.11 to that pursuant claim to the court to stances sufficient allow Institute, Law Principles Law can legal adoptive par- interfere with the or of of 2.03(l)(b) (2002). § Family Dissolution the fundamental rights. ent’s Because biological adoptive parent of a or considering precedent, our After scrutiny are at issue and strict must be standards, of and the decisions the ALI any right, to interference with that applied continue to decline jurisdictions, other we as the test of see the ALI standards adopt to See, of e.g., in Maine. A.2d and because establishment

de facto ¶14 C.E.W., parental rights permanent n. is no less than and (“Although Stitham] parental rights, [Rideout the termination of see PRINCIPLES, neither 4055(1)(B)(2), the A.L.I.’s cite to petitioner M.R.S. must standard, do we do so to- adopts its nor by clear convinc- showings make those and 198, ¶27, Rideout, 2000 ME day.”); ing evidence. Legislature If when the

A.2d 291. and Permanent, Unequivocal, 1. Commit- area, to into this it choose ventures ted, Responsible and Parental Role of the ALI standards. adopt some or all “permanent, define a We [¶28] Instead, in the absence committed, unequivocal, responsible area, we cleave to the legislation this parental by looking role” to the elements An already announced. standard we have parenthood employed facto in Massa de seeking parental rights as de individual chusetts: that parent must therefore show A is one who has no parent “permanent, has undertaken a he or she committed, biological par- relation to the child unequivocal, responsible [as (B) (A) majority no regularly performed a of the if some time thereafter that belief existed, caretaking functions for the or longer make reason- continued to (B) regularly performed able, a share of care- responsi- good-faith accept efforts taking great father; functions at least as as bilities as the child’s or pri- parent with whom the child (iii) lived with the child since the child’s marily lived. birth, holding accepting out and full responsibilities parent, permanent as as Institute, Principles American Law co-parenting agreement part prior 2.03(l)(b) (2002) Family Law Dissolution (or, legal parent if there are two the child’s by estoppel defines a as follows: legal parents, parents) both a child raise (b) parent by estoppel an A is individual together each with full who, though legal parent, not a responsibilities, when the court finds that (i) obligated pay support under is recognition the individual is Chapter interests; in the child’s best (ii) lived with the child for at least two (iv) lived with the child for at least two years and holding accepting years, out and full and reasonable, (A) period had a over that permanent responsibilities pur- as a good-faith belief that he was the child's agreement par- an with the child’s father, suant to biological marriage based on (or, legal parents, if there are two both ent represen- the mother or on the actions or recogni- mother, parents), when the court finds fully accepted tations of the in the tion of the individual as a responsibilities consistent with belief, child’s best interests. 1180

ent], that participated encompasses has the child’s umbrella term activities but not that benefit child but do necessari- family. of the child’s a member life as ly direct involvement involve with the resides with the parent The de facto child, financial providing support such as and, with the consent and encour- family maintaining for the the home— performs a legal parent, of the agement with the more relevant subset of “caretak- caretaking functions.... share ing functions” —which involve “the direct L.M.M., 824, Mass. 711 v. 429 E.N.O. day-to-day delivery supervision care and (1999). 886, language, 891 This N.E.2d of the including grooming, feeding, already approval, cited with which we have care, physical supervision.”13 medical ¶25 Stitham, 52, 15, n. 2001 ME 768 see M.P., 828, 447 A.H. v. Mass. 857 N.E.2d J., (Saufley, concurring); see also A.2d 598 (2006) (alterations omitted) 1061, 1071-72 ¶40, 198, 2000 ME omitted) (quotation (noting marks that (Wathen, C.J., concurring) (citing E.N.O. parent-child grows “the bond from the generally), gives litigants and courts list myriad hands-on activities of an adult necessary determining elements for needs”). tending Only by to a child’s es- an individual’s relationship whether with a tablishing provided that he or she some permanent, unequivocal, child is commit- caretaking petitioner actual can a functions ted, responsible.12 It a test that not addition, be successful.14 the test ac- only requires petitioner to establish legal parent counts for the intent of the that he or she has resided with the child putative and the de facto to co- family,” “as a member of the child’s parent, as measured before the dissolution E.N.O., 891, 711 N.E.2d at but also distin- of their relationship, or the intent of the guishes between functions” —an “parenting legal parent non-parent act as M.P., 828, 1061, Dissenting Opinion, 12. the ALI Unlike or the A.H. v. N.E.2d Mass. (2006). impose we do not a minimum duration for 1072 n. 15 relationship categorically eliminates possibility of a de facto for a child required petitioner 14.The E.N.O. court to old, younger years respective- than two or five performed demonstrate that he had a share of 68; ly. Dissenting Opinion See Smith v. caretaking great functions "at least as as the Jones, Mass.App.Ct. 868 N.E.2d L.M.M., legal parent.” E.N.O. v. 429 Mass. (2007) (discussing 635 n. 10 the Massachu- (1999). 711 N.E.2d At this adopt setts courts' similar "reluctance to juncture, high we do not set the bar so for this bright-line requirement” noting time portion parenthood of the de facto standard. satisfy any particular a failure to duration Moreover, disagree we with the statements likely element "would not be sufficient for a Dissenting Opinion in the that our decision parenthood conclusion that no de facto status require equal caretaking not to an amount of Nevertheless, existed”). we note that in the "effectively relaxes the Massachusetts stan- us, parenthood presented de facto cases demanding ap- dard” or creates a "less relationship none involved a between the de proach" establishing parenthood. facto and child that was shorter than Dissenting Theriault, Opinion contrary, 70. To the years. five See Philbrodk v. we, E.N.O., 74; unlike the Massachusetts court in ME 957 A.2d Leonard v. Boardman, 108, ¶¶3-5, proof require of harm the child in 869; ¶44, 2, Young Young, absence of a de parent- declaration of 1144; D.E.W., robustly satisfy A.2d C.E.W. v. hood in order to more ¶¶ 1-3, Henderson, scrutiny requirement. Stitham v. strict Infra ¶52, 2, Thus, the de facto standards we are, overall, today significantly announce 13. This held be more burdensome than those discussed in the distinction has been "not appropriate” legal parents. as between two E.N.O. decision. See that is legal parent.15 person in once determined be a place parent Jones, parent, facto “the court Mass.App.Ct. de consider Smith (2007). parental rights responsi- It also ensures an award of and N.E.2d a parent”); not undertaken bilities to that individual as see relationship was L.B., 122 compensation Parentage financial also In re P.3d at purposes for (concluding that a de approval, parent institutional as 177 facto or with other daycare legal parity in with an otherwise nanny, parent, foster or “stands with a Parentage ofL.B., legal parent”). Although Legislature provider. See In re (2005). yet speak parent- 122 P.3d has about de facto Wash.2d hood, provided it has the framework in 2. Exceptional Circumstances rights and parental responsibilities which below, facto As discussed a de [¶29] is, between parents, are awarded as may be awarded all of parent potentially § In through particu- 19-A M.R.S. en- rights responsibilities and parental lar, section 1653 enumerates the provisions adoptive parent. or joyed by biological that a court “must include” in a parental non-parent opportunity A should have the order: rights panoply rights the full and to obtain (1) parental rights Allocated and re- only excep- under the most responsibilities sponsibilities, shared and i.e., circumstances, only when the tional responsibilities parental rights sole establish, by can clear and con- non-parent responsibilities, according evidence, vincing that harm to the child provided best interest of the child as in acknowledged if she not will occur he or paren- subsection 3. An award of shared parent. We are to be the child’s de rights responsibilities may tal in- that “harm” in these announcing not here clude either an allocation of the child’s equivalent “jeopardy” must be the cases primary residential care to one parent Nonetheless, 22 cases. a court title rights parent-child contact to the par- an order that creates a contemplating sharing other or a of the child’s deter- non-parent ent out of a must first care primary par- residential both mine that the child’slife would be substan- If either parents request ents. or both if tially negatively person affected primary an award of shared residential permanent, unequiv- who has undertaken a care and the court does not award committed, ocal, responsible parental primary shared residential care of the role in that child’s life is removed from child, the court shall state in its decision that role. why primary resi- reasons shared care is in the dential not best interest of De B. Effect of a Determination of Facto child; Parenthood (2) parent-child Conditions of contact A determination that involving pro- cases domestic abuse as is a de facto means that he vided subsection equal footing or she is a on with a (3) biological adoptive parent, say, provision support pro- that is to A for child opportunity with the same vided in subsection 8 or a statement of C.E.W., responsibilities. ordering sup- See the reasons for not ¶43, 11, (holding port; non-par- guardianship, may 15. A court-ordered substitution of a also be considered. See legal parent, e.g., 5-204. ent for a the creation 18-AM.R.S. 1653(8). each must is calculated support Child statement A §§ pursuant to 19-A M.R.S. 2001-2012 to records and information access (2013). particular, imposes section 2005 child, including, a minor to pertaining presumption paren- a rebuttable “that the to, medical, dental and but not limited support obligation tal derived from the information on records other school support guidelines is the amount ordered activities, whether or not school unless paid, support to be is established parent, with the unless that child resides 2006, section subsection 5 or section under in the found not to be best access is § M.R.S. 2007.” 19-A 2005. the child or that access is interest of sought purpose short, for the be once the court found to finds [¶ 32] parent. to the other causing party party detriment that a is a de facto that ordered, purposes, not the court is a for all and the court parent If that access is to go appropri- in the order its reasons for must then on consider the shall state ate access; parental rights responsi- award of denying that including support pursuant child (5) bilities— — A that violation of the statement Leonard, 108, to title 19-A.16See in a may finding order result of con- ¶¶ 17-18, (holding that when of sanctions as tempt imposition party a is found to be a de facto parent, in subsection provided “give complete the court must relief to the A statement definition of parties [by] establishing] parental rights parental rights responsibili- shared responsibilities” pursuant to section 1501, ties contained in section subsection 1653in proceedings involving biological 5, if the order of the court awards father). parental rights responsibili- shared recognize many aspects We that ties; of the parental rights may order be cum- bersome in matters in which there are 1653(2)(D). 19-A M.R.S. more than legal parents. two Neverthe- 1658(2)(D)(3) requires Section less, already statutes parent that of a minor “[e]ither child shall language pursuant contain to which a such just contribute reasonable and sums as judgment may be fashioned to reflect the support payable weekly, biweekly, See, child reality family. e.g., 19-A M.R.S. 2007(3)(A) monthly quarterly.” (setting 19-A M.R.S. out when the court 2008) jurisdictions begun (involving biological 16. Other to deter- a father of a child support applied mine child as to de facto attempted challenge support who to a child See, Barlow, parents. e.g., Jones v. 154 P.3d requiring pay biological order him to 808, (Utah 2007) (Durham, C.J., 823 n. 3 ground mother on the that failed to it include ("De dissenting) parenthood a facto is two- a reduction to account for another man’s way While street. status enti- support obligation parent); child a de facto visitation, party standing tles a third to for it H.S.H.-K, 649, Custody In re 193 Wis.2d requires provide a de also facto 419, (1995) (adopting 533 N.W.2d 435-36 child.”); support financial see also four-part parenthood test of includes T., 14, T. v. Michael 127 Misc.2d Karin petitioner whether the has assumed the finan- (N.Y.Fam.Ct.1985) (hold- N.Y.S.2d obligations parenthood, including cial ing agreed co-parent that a who "contributing support”); towards child’s child conceived means of artificial insemi- B.L., T.F. v. 442 Mass. 813 N.E.2d cf. nation could not assert that she was not re- (2004) (refusing to force a domes- sponsible support parent- for child for lack of partner pay support tic for child for Streibeck, 26553-6-III, hood); In re No. parent). whom was not a de she (Wash.Ct.App. WL at *3 Oct. support guide- preliminary the child make determination deviate from may lines, would be does in fact exist before relationship when the result such a such as child’s litigate or not “unjust, inequitable required fully can be interest”). Philbrook, best the issue.” biological adoptive 957 A.2d 74. If the C. Procedure parent opposes petition, this initial de- emphasize enough cannot termination be decided on affidavits We forever, through is whether a motion to dismiss. Id. or de relationship biological, adoptive, Second, if petitioner [¶ 36] parent The role of a de facto is no facto. burden, prima peti facie satisfies any that of other permanent less than by then clear and con prove, tioner must it a role that be surren- parent; evidence, that he vincing or she satisfies released, dered, lim- only or terminated an two-part both elements of test we approved by as a court. ited circumstances is, therefore, nounce here and the child’s 9-202, 9-204, §§ 9-302 See 18-A M.R.S. parent. de facto Whether the petitioner 4055(1)(B)(1). (2013); § 22 M.R.S. The highly has established these elements is a to child obligation pay of a de facto inquiry requires fact-intensive a con too, remains in force until modi- support, totality sideration of the of the circum court, by the or until the child turns fied stances. graduates secondary from eighteen or school, marries, joins the armed ser- if, if, Finally, only and [¶ 37] 1653(12). §

vices. 19-A M.R.S. individual is a de facto the court The determination of must establish the extent of the de facto rights responsibilities and responsibilities pursu parent’s rights and for status as a de facto petitioning C.E.W., ant to 19-A M.R.S. 1653. See First, stages. must occur in three because ¶43, 11, 2004 ME 845 A.2d 1146. This forcing expend a to time and re pre to the accomplished according task is third-party a defending against sources appli the evidence standard ponderance of infringement itself an on claim to child is rights generally to actions parental cable right parent,17 the fundamental to Con question because the court will reach this 12, ¶13, 691; ME 890 A.2d logue, 2006 established, by only petitioner if the has ¶ Rideout, 291, 2000 ME A.2d evidence, convincing that he or clear and status party seeking de facto parent. she is the child’s de facto See must, outset, his or her at the establish ¶ Anderson, 94, 12, 4 Hatch v. standing litigation by initiate the mak A.3d 904. ing showing par facie of de facto prima according two-part enthood test we At the heart of deter i.e., today, peti parent’s rights have announced that the of a de facto and mination any other award of permanent, unequivocal, responsibilities, tioner had a com mitted, rights responsibilities, and is the responsible according parental role elements, that, if that rela best interest of the which is defined E.N.O. terminated, to nineteen factors in 19-A tionship is the child will suffer with reference 1653(3). C.E.W., stage, At “the court must M.R.S. See harm. this first 198, preliminary regarding scrutiny 17. This determination test. See 291; standing parent- Conlogue, 2006 ME person’s to assert de facto satisfying means of the strict hood is but one Kelley par- to be the A.2d see also determined child’s ¶ 15, Snow, ent, remedy by the court must fashion a delineating respon- his D. Conclusion sibilities, including support, and will sequence conjunction of events to do with re-deter- Amidst the so actions that constitut- mining responsibil- and consolidation it,18 the trial court presented Hague. ed the case ities of Moore and with care and skill. It this case handled entry The is: procedure parent- for de facto followed the Judgment vacated. Remanded for fur- already has been established hood that proceedings opin- ther consistent with this facie determination of making prima ion. standing, by imposing the burden applied Pitts. It also the clear proof on SILVER, JABAR, J., J., with whom convincing proof protect standard of joins, concurring. issue, at and ex- right the fundamental parent- de facto pressly considered Pitts’s I join Plurality Opinion, with the [¶ 42] before, independently hood status clarify steps which takes substantial this from, its best interest determination law, area of and with its unsettled result. remedy of an of con- fashioning award However, aspect Plurality’s on one of the S., tact In re with child. See Scott it, and, analysis, disagree I necessari ¶ 114, 19, 2001 ME ly, join with the Dissent.19 I do not section 11(A)(2) Plurality Opinion, of the and I Nevertheless, because this is our [¶ 40] separately write because I do not believe first force articulation of the and duration constitutionally that harm to the child is consequences parent- of de facto required defacto-par- in order to obtain hood, and our first announcement of the enthood status over a fit parent’s objec two-part pursuant standard to which de Granville, 57, tion. See Troxel v. 580 U.S. parenthood petitions must be evalu- 73, 2054, 120 S.Ct. 147 L.Ed.2d 49 ated, we judgment vacate the court’s Riendeau, (plurality opinion); Rideout v. remand the matter for the court—and the ¶ 198, 23, ME (plurality 2000 parties positions consider anew their —to ¶¶ 16, opinion). Plurality Opinion But see remedy on this lifelong affecting the life of ¶ 29; Dissenting Opinion 62. a child. remand, that, On court Plurality must re- The a holds law, parties consider the record and allow the persons matter of constitutional seek- to submit ing parenthood additional evidence to determine de facto status must dem- whether Pitts can meet his burden of es- onstrate that “the child’s life would be tablishing parenthood. substantially de facto If Pitts is negatively affected” be- earlier, agrees Plurality 18. As noted 19. The Dissent with the that a responsibilities involving action the child’s bi- degree required measurable of harm is before ological parents, Hague, Moore and was con- interfering parent’s with a constitutional lib- solidated with tion, de facto Pitts's ac- ¶ interests, 16, erty Plurality Opinion Dissent- Hague actually participated in and ¶ ing Opinion require but would a much during hearing. testified the consolidated greater showing of serious harm to a child's facts, Given these we need not address how emotional, "long-term physical, develop- biological adoptive parent the absence of a well-being." Dissenting Opinion mental might petitioner’s attempt affect a to establish parenthood. right a awarding before prerequisite over a award that status can fore a court custody parties. or visitation to third objections. adoptive parent’s biological or Riendeau, ¶29. Par- 23- disagree. I Rideout v. Plurality Opinion custody 25, opinion). (plurality to the Con- ents’ fundamental require do not characterization of trary their children Dissent’s control of case, the child plurality of harm to a of this Court con- showing threshold a those interfere with showing court can a of harm is not con- before a cluded that Troxel, at 530 U.S. id. see stitutionally required. See See But rights. ¶23, Rideout, Rideout, Dissenting Opinion 62. S.Ct. Rather, appropriate A.2d 291. District had concluded Court both a weigh should inquiry Act was unconsti- Grandparents constitutional Visitation liberty interests and require fundamental tutional because it did not find- continuing contact with interest ing pre- a child’s of harm or a threat of harm as “ has acted as interfering parents’ an adult ‘who with the condition ¶27, liberty fundamental interests. [the child].”’ Ramos, (quoting Youmans 761 A.2d 291. We vacated that (1999)). 165,172 N.E.2d Mass. stating, “An element of ‘harm’ judgment, not, however, in the traditional sense is Although the Dissent notes only compelling state interest extant compel- ... “recognized [that] we have relating when matters welfare requires showing ling state interest ¶23 Id. scrutiny.” children are under or the threat of harm degree of harm some added). (emphasis We concluded that interfere a court to the child before harm to a although the threat of child is parent,” of a fit rights with the ¶ the State certainly provide sufficient to 62, prece- neither our Dissenting Opinion interest, harm compelling with a consist- Supreme Court nor that of U.S. dent physical safety a threat ing of the child as the required harm to has ever danger qua imminent is not a sine non justify state interest only compelling compelling of a state for the existence fundamental interfering parent’s with a Troxel, [Rather,] Rather, natural “[t]he in interest.... liberty interest. right to ad- to the care and control explicitly declined Supreme Court only for the the Due Process Clause of a child should be limited dress “whether showing poten- urgent ... a of harm or conclude requires most reasons.” We exist, where, prece- the child as a condition “urgent tial harm to that reasons” 73, visitation,” here, at granting 530 U.S. who has functioned grandparent dent to 2054, conclu- yet and it has not 120 S.Ct. to the child seeks continued as a the issue.20 sively addressed with that child. contact ¶¶ (footnote omitted) citation have, however, Id. 23-25 addressed We [¶ 45] Bussell, 118, Merchant v. 139 Me. (quoting degree some question of whether (1942)). 122, necessary 27 A.2d 816 harm is a potential harm or However, added). expressly Supreme the Troxel Court states that the U.S. 20. The Dissent question of to what Court "did not reach the Due Process declined to decide "whether for a court to extent harm must be shown showing requires ... a of harm or Clause regarding the parent’s decision” Troxel, override a potential harm to the child” at all. custody care of his or her children (plurality opin- 530 U.S. at 120 S.Ct. 2054 Granville, 57, 73, 120 S.Ct. 530 U.S. Troxel v. 2054, 76-77, ion); also id. at 120 S.Ct. 2054 see opin- (plurality 147 L.Ed.2d 49 J., (Souter, concurring). ion). (emphasis Dissenting Opinion-¶ 61 n.21 1186 Troxel, 72-73, disagree I with the child. See 530 at Although U.S. 120 2054; Rideout, 198, ¶23, that

Plurality’s conclusion interference S.Ct. ¶¶ liberty fundamental inter- parent’s 291; with a Plurality Opinion 39. showing of harm to the requires est However, disagree we on the is- on substantive agree we several sue of whether harm to the child is the analysis. within the constitutional points only compelling justifies state interest that First, in both Maine and federal constitu- a court’s parenthood award of de facto law, “firmly it is established” that a tional ¶¶ 16-17, 29; Plurality status. See Opinion interest, liberty possesses a classi- ¶ Dissenting Opinion 62. Because our de- right,” making fied as a “fundamental require any cisions interference par- with custody and con- regarding decisions process rights satisfy ents’ due Rideout, ME trol of his or her child. test, I scrutiny strict set out the state’s 18-19, 291; A.2d see also Trox- compelling narrowly interest and tailored el, 2054; at Mer- 530 U.S. S.Ct. safeguarding means for those chant, Me. at Plural- Rideout, context. See ¶ Second, ity Opinion agree 11. we that an ¶ 198, 19, responsibili- award unquestionably to a de facto parent ties Compelling A. State Interest parent’s protected interferes lib- erty Sparks, Sparks interest. See compelling The state has a inter- ¶ (“A 41, 20, court order justify interfering est with the decision assigns temporary rights even to a making authority a fit parent “only nonparent interferes with the fun- reasons,” Merchant, the most urgent interest.”); liberty Plurality damental Me. at in “exceptional A.2d Opinion protecting liberty circumstances,” Plurality Opinion 12 & interest, parents our decisions afford great n.3; see also protection by adopting a presumption vitally 761 A.2d 291. There are certain parents fit act in the best interests of their important relationships that a child shares by requiring any children and interference persons with other than that child’s biolog- pass that interest to the strict-scruti- parents ical that are worth preserving and test, ny provides which “that the State’s urgent enough to warrant state interven- narrowly action be tailored to serve [must] tion, biological parent’s even over the ob- Rideout, a compelling state interest.” ¶ Rideout, jection. 198, 27, 2000 ME ¶ 198, 19, 291; 2000 ME Plurality A.2d 291. example, For ¶ Opinion 12. grandparent pri- [w]hen has been the Third, we agree [¶ that both harm 47] mary caregiver and custodian for a child and the threat of harm to the child consti- significant time, over a period of the a compelling tute state interest sufficient relationship between the child and the a parent’s liberty to override fundamental grandparent application warrants of the Rideout, interest. parens patriae authority court’s on be- (“[T]he A.2d 291 threat of harm to a child half of the child provides compel- certainly provide sufficient to the State ling basis for the State’s intervention interest.”); compelling Plurality with a family into an intact parents. with fit Opinion Finally, agree any we omitted). (quotation Id. marks interference with a fundamental liberty justified by interest must be safeguard rights some- order to the thing more than the best interest of the of the have parens we used our biological parent. rela- “To focus with authority preserve close child’s patriae ... grandpar- scrutiny compelling strict on the inter- tionships between children state, ents, id., [only] par- the same to of the vis-a-vis the and we should do est ents, ignore particular is to what in a children and relationships between protect equally compelling to case be the interests of parents who function as persons those children, family, and the approach recognizes [third This the child. individual, parties seeking custody a third or visitation].” is at a minimum “[t]here 198, ¶39, every implicated interests are whose (Wathen, C.J., see also Mer- concurring); which deter- [a case to Troxel, chant, 123-24, Me. child.” at A.2d 816. applies mination] —the (Stevens, J., at 120 S.Ct. U.S. The expansive interpretation of Plurality Opinion dissenting); see also parents’ process rights due elevates the rights of the child 12. “Consideration rights biological of the relative at a time because, importance paramount holds is of reproductive technology, when advances in family constellation from regardless of legalization marriage, of same-sex comes, any placement which the child family of the modern ren- complexities it is the child who is the most dispute biological identify- ties less relevant in der In re and the most voiceless.” vulnerable See, ing relationships. e.g., familial Nolan Shields, 126, 136 Custody 157 Wash.2d of LaBree, 61, ¶¶2-3, 5, v. J., concur- (Bridge, P.3d Damon, Mary St. 309 P.3d of de facto ring). Recognizing (Nev.2013) (holding 1032-35 part greater and children is parents both members of a same-sex could couple trend, as a plurality societal U.S. “legal be considered mothers” to a child Supreme has observed: Court by implanting egg born fertilized nonparen- The nationwide enactment of partner partner). one into the other Given due, in assuredly tal statutes is visitation families, complexities of modern identi- part, recognition some to the States’ fying family the members of a child’s is not of the American changing realities the[ ] single-factor reducible to discrete rules. family. grandparents Because and oth- Troxel, As Justice Stevens noted in duties a paren- er relatives undertake plurality Supreme] U.S. Court [a] [the households, in many tal nature States recognized that the liber- [has] sought to ensure the function, ty simply interest not welfare of was therein the rela- protecting children biology “isolated factors” such as tionships those children form with such connection, intimate of the but broader parties. third apparently independent and interest in family. parent’s rights respect A with Troxel, 530 U.S. at 120 S.Ct. 2054 added). to her child have thus never been re- (plurality opinion) (emphasis absolute, garded as but rather are limit- By reading the Due Process [¶ 51] actual, by ed the existence of an devel- require the child to suffer harm Clause oped relationship with a and are awarding rights or a threat of harm before presence tied to or absence of some putative Plurality to a de facto family. embodiment of solely on the rights and Dissent focus (Stevens, J., 530 U.S. at 120 2054 S.Ct. parents any to the exclusion of (citations omitted). dissenting) competing interest of the child or third Thus, played person seeking a much if a de fac- parties, [¶ 53] who greater parenthood role in the child’s life than the status has demonstrated Rideout, parents. their de facto “fully completely has and and he or she Cfi ¶¶ 29-32, ME unequivocal, 2000 permanent, a

undertaken role committed, parental responsible D.E.W., life,” child’s C.E.W. in the C. Conclusion ¶43, 14, (emphasis A.2d 1146 add- evaluating parent de facto interest to ed), compelling has a the state claims, the constitutional appropriate hood parens patriae its au- apply

intervene inquiry weigh parents’ should both the fun relationships be- safeguard the thority to liberty interests and the inter damental parents. and their de facto tween children continuing of their children in contact ests fully completely with “adults who have Narrowly Tailored Means B. permanent, unequivocal, undertaken committed, responsible parental role governing decisions de facto Our C.E.W., narrowly feature in life.” also tailored the child’s parenthood ¶ 14, safeguarding compelling relationship this 845 A.2d 1146. The be means for First, re- an interest. the threshold tween child and adult who has ful state standing bring parental filled this role is one of the quirements necessary most very fundamentally claim are strin- and formative re parenthood important a de facto lationships to demonstrate that child will have. Josh gent, requiring Gup Children, Kin, “undertaken a perma- ta-Kagan, that he or she has and Court: De committed, nent, unequivocal, respon- signing Party Custody Policy Third To Children, Parties, sible role in the child’s life.” See Protect Third parental and Par ¶ Theriault, 152, 22, ents, Legis. Pol’y Philbrook v. J. & N.Y.U. Pub. omitted). (2008) (“In (quotation reality, parents marks are not the only significant adults to have or even Second, practice, up- we have children; primary relationships with mil remedy held the equitable use this relationships lions children have such circumstances, very namely, limited “when parties.”); third see also and ac- individual was understood (Wathen, A.2d knowledged to be the child’s both C.J., concurring). existing Because the by by par- the child and the child’s other imposed limitations that we have per on 28; Plurality Opinion ent.” Id. seeking sons de facto status Third, person seeking parent- narrowly are tailored to serve the state’s hood status must that he now demonstrate compelling maintaining interest these or she has fulfilled a role clear relationships, fundamental no further convincing Plurality Opin- evidence. showing harm to the child is constitu ¶27. Finally, require ion we also now words, tionally required. In other I read putative de facto demonstrate say the Constitution to that there are “ur that he or she has had direct involvement reasons,” gent sufficient to constitute a by performing “caretaking with the child interest, compelling in maintaining state Plurality Opinion (quota- functions.” relationships parents between de facto omitted). tion marks Because an award children, requiring without a further show de parenthood subject facto status is ing of harm to the child. See limitations, these the state’s intrusion on ME parents’ narrowly is tailored to compelling My achieve its interest in safe- concern if Legis- is that the [¶ 57] guarding relationship up the between children lature takes this issue and creates ALEXANDER, LEVY, J., with whom establishing de for framework statutory J., dissenting. joins, status, the may it view parenthood facto to the child” showing “harm necessity of to announce The Court’s desire 59] [¶ a constitutional harm to be threat of the evaluating for claims de new standards it deems factors that on the constraint given is understandable parenthood facto Dissent notes The relevant. development “Nu- recent and the concept’s the require also jurisdictions merous other pol- legislatively public declared absence harm to or the threat of showing of harm provide decisions sufficient icy. prior Our however, award contact a court for to conclude that guidance, the child before us as a de facto objection prove over the Pitts failed to his status Accordingly, the District Court’s parent. 63 & Dissenting Opinion parent.” fit basis, cites, should be vacated on that judgment that the Dissent n.22. Of the cases be for this case should not remanded legis- jurisdictions, the state several of the Further, proceedings. the new additional imposed requirement the latures by Plurality announced the do standards by child statute. See Cal. harm to the sufficiently account for the constitu- not 2007) 3041(a) (West (requir- § Fam.Code stake, tionally interests at do not protected court, things, among other ing the Plurality’s purpose of achieve the stated custody to a finding granting “make a law, clarifying required and are not to the child” would be detrimental fairly decide this For fully appeal. custody nonparent); to a awarding before reasons, respectfully I dissent. these 25-5-29(4) (2013) § Laws S.D. Codified (A) proceed by addressing I extraordinary that “other (requiring proof requirement person constitutional that a which, custody if is exist circumstances a de facto demon- seeking rights as result would awarded if that the child would suffer harm strate in order to detriment to the child” serious parental rights, is not awarded a fit in favor of presumption rebut (B) an- critiquing the new standards decision). However, state other parent’s plurality opinion regarding nounced parent- de facto have enacted legislatures (C) explaining parenthood, an element requiring without hood statutes Pitts why, existing precedent, under our See, e.g., the child. Del.Code of harm to as a de facto prove failed to his status 8-201(c) (2013); § D.C.Code Ann. tit. parent. (2013). 16-831.01(1), §§ 16-831.03 Wheth- er, public policy, a matter of de Requirement of A. The Constitutional include claims in Maine should Harm of harm to the harm or the threat a state court entertains When Court, to de- Legislature, not this of de facto complaint seeking a declaration cide. engages it in state action that parenthood, Supreme Court Until U.S. constitutionally protected implicates the Due Process Clause determines that liberty parenting interest a has an element of harm to requires her child free from state interfer his or fit interfering XIV, with a before See Const. amend. ence. U.S. Maine, through I, 6-A; its the State of Davis v. rights, art. Me. Const. ¶¶ 11, 18, Anderson, public to be free to set Legislature, ought Granville, v. 530 (citing harm should A.2d 1166 Troxel to determine whether policy 57, 65, 2054, 49 120 147 L.Ed.2d S.Ct. analysis. of the U.S. part be 1190

(2000) unfitness); L., This facet of (plurality opinion)).21 parental In re Jazmine ¶¶ liberty protected by 125, the Four- 12, 14-15, individual 861 A.2d 1277 perhaps Amendment “is the oldest teenth (addressing when serious harm or the liberty recog- interests of the fundamental may threat of serious harm to a child Troxel, 65, U.S. at 120 S.Ct. nized.” 530 justify finding parental a of unfitness for now be 2054. cannot doubted that “[I]t purposes terminating parental rights); of the Due Process of the Fourteenth Clause Riendeau, 198, 24, v. ME Rideout 2000 Amendment the fundamental protects (“ A.2d 291 ‘The right 761 natural of a right parents of to make decisions concern- parent the care to and control of a child care, custody, and control of ing the their only urgent should be limited for the most 66, at 120 2054. To children.” Id. S.Ct. ” Bussell, (quoting reasons.’ Merchant v. protect right, this fundamental courts rec- 118, 122, (1942))); 139 Me. “ ognize presumption parents ‘a that fit act 5-204(c) (2013) see also 18-A M.R.S. ” children,’ in the of their best interests (permitting appoint guardian the court to including respect requests with minor, for a absent consent of the minor’s third-party or parental rights. visitation parents, if “a living situation has been M., 80, Guardianship Jewel created that is at temporarily least intoler- ¶ 4, Troxel, 2 A.3d 301 (quoting 530 U.S. at 4003(2) child”); able for the 22 M.R.S. 68, 2054); Davis, 120 S.Ct. see also 2008 (2013) (authorizing the State to remove ¶¶ 125, 12-16, ME Fur- 1166. custody children from the of their parents ther, any state right interference with this “only where failure to do jeopard- so would narrowly must be tailored to serve a com- welfare”). ize their health or Consistent Davis, pelling state interest. with precedent, this the foundation for the ¶¶ 125, 11-13,19, 953 A.2d 1166. judicially concept created par- de facto recognized As in our in- cases enthood may courts interfere with a volving of parental rights, termination parent’s right prevent lawful his or her visitation, grandparent and guardianships, having child from a relationship with a a compelling requires state interest person seeking only status showing degree of some of harm or the if ‘“measurable harm befall would threat of harm the child before a court child on the disruption of that relation- parental interfere rights ” M.P., 828, A.H. v. ship.’ 447 Mass. presumptively parent. fit See Guardian- 1061, (2006) N.E.2d (quoting Care & T., ship Jeremiah Sharlene, Protection 445 Mass. that, (recognizing because of (2006)); N.E.2d see also Blixt v. stake, liberty fundamental interest at Blixt, guardianship 437 Mass. may only be maintained over N.E.2d (2002). parent’s objection based on a showing of 1060-61 Troxel, case, nonparent by Washington Supreme visitation Court-whether Supreme plurality opinion Court’s did not requires nonpa- the Due Process Clause all question reach the of to what extent harm rental visitation statutes to include a show- must be shown for a court ing to override a potential of harm or harm to the child regarding third-party decision visita- precedent granting aas condition visita- not, not, tion: tion. We do and need define to- day precise sweep- scope Because we rest our decision on the due ing right process breadth in the [the visitation visitation context. statute] broad, Granville, application and the of that unlimited Troxel 530 U.S. 120 S.Ct. case, power in (plurality opin- this we do not 147 L.Ed.2d 49 consider primary ion). question passed constitutional on that parent’s from a decision to sever previously- have not Although we relationship grandparents with who child’s to measure single a standard formulated “primary caregiver[s] functioned as had consti- pass harm needed to degree of sig- child over a [the] and custodian[s] muster, precedent both our tutional Rideout, period nificant of time.” 2000 that the demonstrate relevant statutes ¶¶ 198, (quotation sufficiently must be consequences adverse Merchant, omitted); 139 Me. at marks see long-term physical, child’s serious that the 119-20, 122-24, Thus, an emotional, well-being will developmental or in- “urgent may justify reason” that state status if de facto be threatened usually terference with a decision within harmony This view is is not awarded. parent of a fit is the the sole discretion applied “urgent reasons” standard with harm to the child. Maine prevent need to and Merchant. See in Rideout requiring proof is not alone in of harm. 198, 22-27, 761 A.2d jurisdictions require other also Numerous Merchant, 122, 27 A.2d 816. 139 Me. at or the threat of harm to showing of harm was the “urgent” in both cases What was may contact the child before a court award traumatic, “dramatic, upon effect and even objection parental rights over follow fit well-being” parent.22 that would the child’s See, child-rearing rights justified Sherriff, Cal.App.4th parental e.g., Fenn v. 109 185, (2003) 1466, health, (holding Cal.Rptr.3d safety, protect 201 1 limited instances to custody may children.”); to a third that a court award Marriage and welfare of In re of unfitness, showing parental Howard, party, 183, (Iowa 2003) absent a 661 N.W.2d 191 showing that award is on a clear such "based may only grand- (holding compel that a state (quota the child” to avert harm to essential showing parent "a visitation if there is omitted)); DiGiovanna v. St. tion marks beyond harm the child that derived from 900, 59, George, Conn. 908 300 helpful, the loss of the beneficial influence of (2011) ("[T]he constitutionally may court Bennett, 383, grandparents”); Gill v. 82 So.3d relationship compel parent preserve a (holding custody (La.Ct.App.2011) that 390 party, even in the child and a third between a only nonparent paren- be awarded to a if strong parental opposition, when the face of tal-custody harm would result in substantial relationship that would cause cessation of 828, child); M.P., A.H. v. 447 Mass. 857 child.”); Beagle v. substantial harm to the 1061, (2006) ("[Pjotential harm N.E.2d 1071 1271, 1996) (Fla. Beagle, 678 So.2d 1276 is, course, the criterion that to the child grandparen- (holding imposing that a statute continuing tips balance in favor of contact objection at tal visitation over the against a de facto the wishes of one was unconstitutional because least legal parent, the fit who has fundamental require it did not the state to demonstrate care, liberty custody, interests in the child’s prior the award of visita harm to the child omitted)); (quotation and control.” marks 587, Wade, rights); 273 Ga. 544 tion Clark v. Hart, 585, Rohmiller v. 811 N.W.2d 99, (2001) (interpreting best S.E.2d that, (Minn.2012) (holding to be constitution- party parent-third cus interest standard of al, require third-party must visitation statute party tody require the third statute to the court to conduct more than a mere best convincing prove by clear and evidence analysis fit interest in order to override a physical will emotional "the child suffer Duka, wishes); 112 Nev. Locklin custody biologi harm if were awarded to the 1489, 930, (”[E]x- 929 P.2d 934-35 Doe, Hawai'i parent”); cal Doe v. traordinary to over- circumstances sufficient (2007) ("[Pjroper 1079-80 P.3d preference presumption come the recognition parental autonomy in child- are those circumstances which result in seri- rearing requires party peti that the decisions child.”); ous detriment McAllister v. tioning for visitation demonstrate McAllister, (N.D.2010) 779 N.W.2d significant will harm in the ab suffer ("When R.L.S., psychological parent and a natural visitation....”); sence of In re award of each seek a court-ordered 844 N.E.2d Ill.2d 300 Ill.Dec. (2006) ("State right custody, parent’s paramount with fundamental the natural interference

1192 Granville, 1191, basis for 82 Or. L.Rev. 1197-98 jurisprudential The (2003) added).23 (emphasis parental rights is to awarding nonparent a protecting interest in a the State’s advance Accordingly, our recent decisions have all arbitrarily regarding cut off from an being from child concerned children who had been cared for figure with whom the parental important period over a of by nonparent significant a emotional developed significant a child has years.24 five time of at least continuous ob- As one commentator has attachment. Boardman, 108, See Leonard v. ME 2004 served, created between a child “The bond ¶ 16, Philbrook (eight years); 854 A.2d 869 called attachment.... caregiver and a is Theriault, 152, 12, v. ME 2008 957 A.2d continuity relationships of To ensure (nine years); Young Young, v. 74 time, sense of courts recognize child’s (five 44, 2, C.E.W. years); 1144 acknowledge legal rights must do more to D.E.W., 43, v. long-term caregivers who are psycho- for Henderson, (nine Stitham v. years); 1146 parents legal parents.” not logical but ¶52, 2, (five years). 2001 Comment, Rebutting the Pa- Sortun, Anna aspect require- The of the harm temporal Presumption Oregon: rental in Substanti- ment ensures that de facto parent claims Troxel v. ating Emotional Bonds are those in it limited to cases which after custody prevails “extraordinary taking it to unless court finds in reason” for a child custody to award among the child’s best interests from the child’s other factors psychological parent prevent omitted)); serious (quotation Custody marks In re harm to the welfare of the or detriment Shields, 126, 143, 157 Wash.2d 136 P.3d 117 omitted)); (quotation child.” marks Neal v. (2006) (en banc) ("[Pjarental rights may also Lee, 547, (Okla.2000) (holding 14 P.3d 550 outweighed custody in be determinations “vague generalization” that the trial court’s growth when actual detriment to the child’s positive grandparents about the effects development place- would result from grandchildren on their fell "short of the nec- parent."). ment with an otherwise fit essary showing of harm which would warrant parental the state’s interference with this de- Theory pro- "Attachment states that the regarding may (quota- cision who see a child” pensity strong to form a emotional bond to Nez, omitted)); Clough tion marks 759 particular caregivers is as fundamental in hu- 297, (S.D.2008) (holding N.W.2d that 302 pre- mans as the attachment that behaviors "extraordinary circumstances” that would Putnick, Mary cede it.” Elizabeth The State justify awarding nonparental visitation Using Theory as Parent: Attachment to Devel- parent's objection over a in must result seri- op Policy Child in the Best Interest Welfare Askew, child); ous detriment to the In re Child, Change 24 N.Y.U. Rev. L. & Soc. 1, (Tenn.1999) ("[A] S.W.2d natural (1998). may only deprived custody be upon showing harm substantial to the approach respects Legisla 24. This also child.”); J.C., In re 346 S.W.3d 194-95 generally nonpar- ture’s decision to limit a (Tex.App.2011) (recognizing that a child’s ability parental rights ent’s obtain and re significantly impaired by welfare be consent, waiver, sponsibilities parental absent uprooting nonparental the child from a care- involving jeopardy or circumstances taker); McCrillis, Craven v. 178 Vt. See, (2013) e.g., child. 18-A 9-302 M.R.S. (2005) (recognizing A.2d 742-43 (articulating requirements adoption); "compelling justifying inter- circumstances” 1653(2) (2013) (setting 19-A M.R.S. forth ference with a visitation decision in- authority the court’s to award proof "significant clude harm to the child responsibilities, including nonpar to a will result the absence of a visitation or- ent); 4002(6), der”); Clark, §§ 22 M.R.S. Florio v. 277 Va. (2013) (governing procedure pro (noting for child S.E.2d that the law's parental tection presumption awarding custody termination orders based favor of unfitness). parent may by showing jeopardy be rebutted of an on psycho responsible parental role that child’s life the child has become probable permitted Plurality to do so.” person claiming longer the is no attached to logically ¶ temporal This as 29. Whether a child’s interests Opinion status. parent de facto by the Ameri recognized “negatively by harm is would be affected” the deni- pect of Institute, the Law Principles nonparent’s request Law al of a for a declara- can of Analysis and Rec parent Dissolution: is Family simply tion of de facto status (2002) (“ALI ”), Principles way asking ommendations different whether an award part, facto in as which defines de parent nonparent facto status to a of de who has lived with the child an individual in the would be best interest of the child. period of time not less significant “for a Plurality Opinion’s “negative The effect” years.” Principles two ALI than vague possibly is unconstitu- standard 2.03(1)(c). § given States Supreme tional United conclusion in Troxel that the best Court’s Plurality Opinion’s Newly An- B. The interest of the child standard is constitu- nounced Standards in- tionally support judicial insufficient to By recognizing constitutional [¶ 66] parent’s rights. terference with 530 U.S. harm, requirement proof and also 67-73,120 2054. at S.Ct. convincing evidence requiring clear and Second, Plurality Opinion has “undertaken a parent that a de facto recognize any temporal does not minimum committed, unequivocal, permanent, requirement parenthood, for de facto role in the child’s responsible parental two-year whether the requirement estab- Philbrook, 152, ¶22, life,” 2.03(l)(c) § ALI Principles lished or a omitted), marks (quotation A.2d as longer period prior reflected our reaffirms the standards plurality opinion Plurality The Opinion decisions. thus previously applied in cases that we that, deemphasizes requirement for a Plurality involving parents. de facto See parent’s a fit court to review decision to However, Opinion Plurality life, nonparent exclude a from the child’s it Opinion goes by reformulating further nonparent must be shown that the acted as ways in five adding to these standards “primary caregiver and custodian for uncertainty unnecessarily create lower significant period child over a [the] demonstrating compelling the bar for time.” justify state interest that would a court added) (emphasis (quotation A.2d 291 overruling regarding a fit decision omitted). marks her I

what is best for or his child. As will part opinion, in the final of this discuss Third, Plurality Opinion dis- legal pronouncements none of these are tinguishes “parenting functions” from necessary to decide this case. functions,” “caretaking suggests First, latter Plurality Opinion proof required de- to establish degree parent/child relationship. scribes the of harm that must be a de facto Plu- merely rality Opinion doing, shown as “that the child’s life 28. In so the Plu- substantially negatively rality Opinion would be af- embraces a distinction made 2.03(l)(c) § Principles regarding fected if the who has undertaken a in ALI committed, permanent, unequivocal, parents.25 approach, and de facto This howev- who, 2.03(l)(c) significant period Principles provides: 25. ALI for a of time not less % years, than two A de is an individual other facto and, (i) legal parent by estoppel than a or a lived with the child life,” er, par Plurality from de facto role in the child’s effectively excludes omitted), Opinion (quotation not marks might individuals who enthood those Plurality parents pursuant Opinion quotes adopts qualify as )(c) 2.03(i but would oth the definition of de facto ex- Principles ALI by estoppel” pressed by Supreme the Massachusetts qualify “parents erwise 2.03(1)(b).26 v. L.M.M.: As the Massa Judicial Court E.N.O. pursuant rec Supreme Judicial Court has chusetts A is one who has no de only a Principles, under the ALI ognized, child, biological relation to the but has by estoppel, and not a de facto parent participated in the child’s life as a mem- “ privileges afforded all of the parent, ‘is family. ber of the child’s The de facto ” M.P., a A.H. v. 447 Mass. legal parent.’ and, with the child with parent resides (quoting 857 N.E.2d encouragement of the the consent and b). § Principles ALI 2.03 cmt. con parent, performs a share of care- legal trast, by the approach adopted under the taking functions.... Plurality Opinion, only parent a de facto is (1999). 429 Mass. 711 N.E.2d privileges legal parent. afforded all the excerpt quoted Plurality Opin- This Plurality Opinion’s approach

The leaves noticeably portion ion excises the last of our law in relation to state confused sentence, which reads in second its Massachusetts, the law of on which both entirety: parent “The de resides with based, plurality opinion ostensibly is and, the child with consent and encour- Principles. and the ALI agement legal parent, performs of the Fourth, it defining caretaking what share of functions at least as parent permanent, great legal parent.” (emphasis means for a to have “a as the Id. added).27 committed, unequivocal, responsible The Supreme and Massachusetts Ju- (ii)for (B) primarily reasons other than fi- if some time thereafter that belief no compensation, agree- existed, nancial and with the longer continued to make reason- legal parent parent- able, ment of a to form a good-faith responsi- accept efforts to relationship, child or as a result of a com- father; bilities the child's as or inability any legal plete parent failure or (iii) lived with the child since the child’s functions, perform caretaking to birth, holding accepting and out full and (A) regularly performed majority of the permanent responsibilities as as caretaking functions for the or part prior co-parenting agreement aof with (B) regularly performed a share of care- (or, legal parent if child’s there are two taking great functions at least as legal parents, parents) both to raise a child pri- with whom the child together each with full marily lived. responsibilities, when the court finds that 2.03(l)(b) recognition Principles provides: of the individual as a 26. ALI is interests; in the child's best who, parent by estoppel A is an individual (iv) lived with the child at least two though legal parent, not a (i) years, holding accepting out full and obligated pay support child under permanent responsibilities parent, pur- as a Chapter (ii) agreement par- lived with the child suant an with the child’s for at least two (or, years legal parents, ent if there are two both (A) reasonable, period parents), recogni- over that had a when the court finds good-faith that he belief was the child’s tion of the individual as a is in the father, biological marriage based on child’s interests. best representations mother or on the actions or mother, required proof fully 27. This statement of the en accepted belief, capsulates requirement responsibilities set out in ALI consistent with that 2.03(1)(c). Principles supra See n. 25. its adherence to nonetheless be entitled to declara- reiterated dicial Court M.P., 857 facto parenthood. in A.H. v. tion of de requirement this applies a stan- at and thus N.E.2d Defining parenthood is a partial than the rigorous that is more dard preceded by delicate task that should be by the Plu- the standard cited excerpt of evaluation of the searching competing Plurality Opinion The ef- rality Opinion. welfare, family preservation, related stan- fectively relaxes the Massachusetts public issues that are involved. policy dard, in a footnote that explaining “[a]t This is reflected both in the ALI Princi- high juncture, we do not set the bar so this ples Legislature’s ongo- and in the Maine of the de facto portion for this ing very questions. consideration of these n.14, standard,” Plurality but of- Opinion 12, § 2 (noting See Resolve ch. why a explanation no as to less de- fers may require “Maine law clarification and policy for manding approach is sound updating regard relating to issues Maine. parental rights responsibilities” and when uncertain, parentage factual and extend- Finally, explanation, without 71] [¶ by Family the date which the Law ing Plurality Opinion adopts stringent the less Advisory report must Commission of of the evidence burden preponderance Legislature regarding study its of the Uni- demanding than the more proof, rather and other Parentage form Act similar laws clear-and-convincing-evidence burden of Thus, proposals). there exist sound determining of proof, purposes for reasons for the Court to exercise restraint Plurality Opinion child’s best interest. govern- ¶¶ and not announce new standards Proof of the child’s best interest 37-38. ing parenthood, particularly de facto convincing to the standard of clear and required where those standards are not however, in required, order to evidence is fairly fully adjudicate appeal. this narrowly tailor the extent to which process interferes with a judicial liberty parenting

fundamental interest De C. Proof of Facto Parenthood this Davis, his or her child. See Case ¶¶ 11-13, 19, In re Aman- By drawing existing from the 73] [¶ (“A H., da decisions, prior in our employed standards an may terminating court not enter order we can and should conclude that Pitts explic- in the absence of an

parental rights failed to establish that he is a de facto itly finding, by convincing clear and stated parent following for the reasons. evidence, that termination is in the best (quotation interest of the child.” marks Pitts resided with Moore and the omitted)). addition, In birth in November Plurality Opin- child from child’s Accounting determina- 2009 until November 2010. for ion divorces best interest question period separation from the threshold of wheth- a one-month between tion Pitts, nonparent er a should be declared a de Moore and Pitts resided with the approximately in the first instance. See child for eleven months. Thus, Plurality Opinion years required 37-38. a non- This is far less than the two permanent, by Principles who have had a the ALI and the five or committed, unequivocal, responsible years more at issue our recent decisions. Further, parental past, findings, role in the child’s life in the based on the court’s that he acted as the presence prove but whose continued in the Pitts failed to primary caregiver during child’s those child’s life will be detrimental to months, significant parental responsibilities qualify much less for a should eleven time. period parent. a child’s de facto as addition, Pitts otherwise in the nothing There is eviden- that the child would suffer prove failed to for the tiary record this case that calls if Moore the threat of harm harm or standards adoption of new her decision to restrict her son’s by stands support an that are so malleable him. The trial court rec- relationship with rights responsibili- award of deficiency it concluded this when ognized custody litigation ties to Pitts. This child or characterize quantify that it could not I brought should be to an end. would denying effect of visitation to the adverse re- judgment vacate the trial court’s Moreover, expressly the court de- Pitts. judgment mand for in favor of entry parental rights Pitts clined to award Moore. beyond limited responsibilities contact, that Pitts “failed to demon- stating convincing clear and evidence

strate any award of and re- (decision making any type

sponsibilities care)

of residential is in the best interest of to under- hard-pressed

the child.” One is why

stand found to be unsuited

Case Details

Case Name: Matthew W. Pitts v. Amanda M. Moore

Court Name: Supreme Judicial Court of Maine

Date Published: Apr 17, 2014

Citation: 90 A.3d 1169

Docket Number: Docket Yor-12-440

Court Abbreviation: Me.