Janice M. v. Margaret K., 122 September Term, 2006.

CourtCourt of Special Appeals of Maryland
Citation948 A.2d 73,404 Md. 661
Docket NumberNo. 122 September Term, 2006.,122 September Term, 2006.
Decision Date19 May 2008
948 A.2d 73
404 Md. 661
No. 122 September Term, 2006.
Court of Appeals of Maryland.
May 19, 2008.

[948 A.2d 74]

Cynthia E. Young, Annapolis (Stephen A. Drazin, Columbia), on brief, for Petitioner/Cross-Respondent.

Jennifer F. Fairfax (Scott M. Strickler of Strickler, Sachitano & Hatfield, P.A., on brief), Bethesda, for Respondent/Cross-Petitioner.

Brief of Family Research Council as Amicus Curiae in support of Petitioner/Cross-Respondent: Matt M. Paavola, Baltimore, Benjamin W. Bull, Glen Lavy, Christopher R. Stovall, Alliance Defense Fund, Scottsdale, AZ.

Brief of Amici Curiae in support of Respondent/Cross-Petitioner Nat. Ass'n of Social Workers, Nat. Ass'n of Social Workers MD Chapter: Clara M. Martone-Boyce, Robyn L. Ginsberg, Kindall C. Burman, Latham & Watkins, LLP, Washington, DC; Barbara Bennett Woodhouse, Center on Children and Families, Frederic G. Levin College of Law, Gainesville, FL.

Brief of Amicus Curiae The Nat. Center for Lesbian Rights and The University of Baltimore School of Law and Family Mediation Clinics in support of Respondent/Cross-Petitioner: Shannon Minter, Vanessa Eisemann, Nat. Center for Lesbian Rights, San Francisco, CA; Jane Murphy, Leigh Goodmark, University of Baltimore Family Law Clinical Programs, Baltimore.

Brief of Amici Curiae American Civil Liberties Union, American Civil Liberties of Maryland, Nat. Center for Lesbian Rights, and Public Justice Center, in support of Respondent/Cross-Petitioner; Shannon Minter, Kendra Presswood, Nat. Center for lesbian Rights, San Francisco, CA; Suzanne Sangree, Public Justice Center, Baltimore; Leslie Cooper, James D. Esseks, American Civil Liberties Union Foundation, New York City; David R. Rocah, American Civil Liberties Union Foundation of Maryland, Baltimore.


BELL, Chief Judge.

We decide in this case whether Maryland recognizes de facto parenthood status and, if so, whether a person who satisfies the requirements of that status is entitled to visitation or custody rights over the objection of a fit, legal parent,1 without having to establish that exceptional circumstances warranting such rights exist. We shall hold that de facto parenthood is not recognized in Maryland. Accordingly, we conclude, in order to overcome the constitutional rights of a legal parent to

948 A.2d 75

govern the care, custody, and control of his or her child, even a person who would qualify as a de facto parent, who seeks visitation or custody, must demonstrate exceptional circumstances as a prerequisite to the court's consideration of the best interests of the child as a factor in that decision.

In this case, one member of a committed same-sex relationship is seeking custody of, and/or visitation with, the child adopted by the other member of that relationship. Janice M., the petitioner, and Margaret K., the respondent, were involved in a committed same-sex relationship for approximately eighteen years, during the course of which Janice M. adopted Maya, for whose custody Margaret M. filed a complaint in the Circuit Court for Baltimore County. That court denied Margaret K.'s prayer for custody, but, having found that Margaret K. was a de facto parent, granted her visitation. The Court of Special Appeals affirmed that judgment. Janice M. v. Margaret K., 171 Md.App. 528, 910 A.2d 1145 (2006). We granted Janice M.'s petition for writ of certiorari and Margaret K.'s cross petition to consider the standard a trial court should employ when considering visitation and custody matters under the circumstances presented by this case. Janice M. v. Margaret K., 396 Md. 524, 914 A.2d 768 (2007).


Janice M. and Margaret K. are two women who were involved in a committed same-sex relationship. The couple met in 1986, and, for most of the approximately eighteen years they were together, they lived together in a residence owned by Janice M. In the summer of 2004, the parties separated and Margaret K. moved out of Janice M.'s home.

Janice M. desired very much to be a mother, a sentiment which she often expressed during the course of their relationship. When her attempts to become pregnant by use of in vitro fertilization proved unsuccessful and after discussing her options with Margaret K.,2 Janice M. pursued adoption in India. That pursuit was successful; Janice M. adopted Maya, who, in December 1999, arrived in the United States. Margaret K. did not ever attempt to adopt Maya in Maryland.3

948 A.2d 76

From the time that Maya arrived in the United States in 1999 until the summer of 2004, when the parties separated, she lived with both Margaret K. and Janice M. During that time, the parties shared most duties regarding Maya's care. Janice M. and Margaret K. divided the responsibilities for preparing Maya's food, changing her diapers, bathing her, handling her schooling, addressing her healthcare needs, and performing most other caretaking duties.

Following the parties' separation, Margaret K. initially saw Maya between three and four times a week. Those visits were largely unsupervised. As the relationship between Margaret K. and Janice M. increasingly became strained, Janice M. placed certain restrictions on Margaret K.'s visitation. In October 2004, Janice M. sent Margaret K. a letter in which she enumerated specific conditions on visitation, Margaret K.: was required to arrange visitation through Janice M. rather than with Maya directly; could take Maya only to places that Janice M. approved, could not speak disparagingly about Janice M., and was required to inform Janice M. of any people who would accompany Margaret K. during visits. Thereafter, Margaret K. continued unsupervised visitation with Maya approximately twice a week.

By January 2005, Margaret K. had become dissatisfied with the prescribed conditions, restrictions, on visitation. As a result, in that month, Margaret K.'s attorney sent Janice M. a letter concerning visitation with Maya. Janice M. responded by denying Margaret K. all visitation and prohibiting her all access to Maya.

Margaret K. filed a complaint in the Circuit Court for Baltimore County, seeking custody, or, in the alternative, visitation. At an evidentiary hearing on the complaint, Margaret K. testified about her relationship with Maya, as did several of the couple's friends and acquaintances. At the conclusion of Margaret K.'s case, the Circuit Court granted Janice M.'s motion for judgment on the issue of custody. As an initial matter, the court determined that Janice M., as an adoptive parent, was entitled to a presumptive right of custody. After finding "no evidence as to lack of fitness on the part of [Janice M.]," the court considered whether extraordinary circumstances existed to overcome the presumption that Janice M. was entitled to custody of Maya. The Circuit Court concluded as follows:

"As far as extraordinary circumstances, the circumstances have to be extraordinarily exceptional or compelling, such circumstances as require the court to remove the child from the biological parent in order to protect the child from harm.

"In reviewing Karen v. Christopher, 163 Md.App. 250, 878 A.2d 646 (2005), I think that case can be distinguished from the facts of this case. In that case the biological parent abruptly removed the child from the State of Maryland making it almost impossible for the person seeking custody, Christopher in that case, to communicate with them. The biological parent did not allow the child to see Christopher except infrequently with restrictions, including that visitation had to be in her presence.

"Basically, in that case the court found that the biological parent through a pattern of immaturity and selfishness in an effort to elevate her own personal interests took actions which actually rendered the child fatherless to break the bond totally between the father and child. In this case we do have some restrictions being set forth in this October 6th, 2004 letter, but I don't see that those restrictions are anywhere near the

948 A.2d 77

level of what was going on in the cited case.

"In fact, very clearly [Janice M.] is saying, I do not want to deny Maya the opportunity to see you. You have been allowed to communicate and visit with Maya each week, etcetera, etcetera. I've encouraged her to call you, although she may not want to invite you to be part of our activities. It's because I love Maya, and I know that she cares about you that you have been granted the opportunity to visit with her.

* * *

"So I think based on this letter anyhow there are rules being set forth, but you don't have a situation where the child is being taken out of state, and so I don't see that this establishes—I don't see where the facts of this case rise to the level of extraordinary, exceptional or compelling circumstances or even close. So I'm going to grant the motion as to custody, and we'll proceed on the visitation issues."

Following the conclusion of all the evidence, the Circuit Court addressed the issue of visitation, concluding that Margaret K. was entitled to visitation. Relying primarily on the Court of Special Appeals' decision in S.F. v. M.D., 132 Md.App. 99, 751 A.2d 9 (2000), the court found that Margaret K. was Maya's de facto parent and, therefore, visitation would be in the best interests of Maya. The court reasoned:

"Under the case of S.F. v. M.D., since we're dealing strictly with visitation right now, having already dismissed the issue of custody at the end of the plaintiff's case, I find that the plaintiff is a de facto parent under that case.

"The four factors are met. The first one being, did the legal parent consent to and foster the relationship between the third party and the child? Clearly, I believe [Janice M.] did do that.

"There's no question that the second prong is met. The third party must have lived with the child. [Margaret...

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    • Capital University Law Review No. 39-2, December 2010
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