E.N. v. T.R.
| Decision Date | 12 July 2021 |
| Docket Number | No. 44,44 |
| Parties | E.N. v. T.R. |
| Court | Court of Special Appeals of Maryland |
DE FACTO PARENTHOOD - TWO LEGAL PARENTS - CONSENT TO PROSPECTIVE DE FACTO PARENT'S FORMATION AND ESTABLISHMENT OF PARENT-LIKE RELATIONSHIP WITH CHILD - Court of Appeals held that under first factor of test for establishment of de facto parenthood—whether biological or adoptive parent consented to, and fostered, petitioner's formation and establishment of parent-like relationship with child—where there are two legal (biological or adoptive) parents, prospective de facto parent must demonstrate that both legal parents consented to and fostered such relationship, or that non-consenting legal parent is unfit or exceptional circumstances otherwise exist. To declare existence of de facto parentship based on consent of only one legal parent and ignore whether second legal parent has consented to and fostered establishment of parent-like relationship, or is fit parent or whether exceptional circumstances exist undermines parent's constitutional right to care, custody, and control of parent's children. Disregarding whether both legal parents have consented to and fostered prospective de facto parent's parent-like relationship with child, or that parent is otherwise unfit or exceptional circumstances exist, runs afoul of parent's constitutional rights and basic family law principles.
Court of Appeals held that legal parent's actual knowledge of and participation in formation of third party's parent-like relationship with child may occur either through parent's express or implied consent to and fostering of relationship. Inquiry into whether legal parent impliedly consented to and fostered potential de facto parent's formation of parent-like relationship with child is fact-specific inquiry to be determined on case-by-case basis. Permitting de facto parenthood to be established based on express or implied consent of both legal parents, where there are two existing legal parents, or showing of unfitness or exceptional circumstances strikes appropriate balance between parent's fundamental right to raise child and best interest of child.
Court of Appeals held that in this case conduct of one legal parent met the requirement that parent consent to and foster prospective de facto parent's formation and establishment of parent-like relationship with children. Court of Appeals held, however, that record demonstrated that second legal parent did not expressly or impliedly consent to and foster prospective de facto parent's formation of parent-like relationship with children. As such, although second, third, and fourth factors of de facto parent test may have been satisfied, first factor was not, and trial court erred in concluding that person was de facto parent to children and in granting person joint legal custody and sole physical custody.
Circuit Court for Prince George's County
Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ.
Opinion by Watts, J.
In this case, we must determine the requirements necessary for establishment of de facto parenthood in Maryland where a child has two legal parents, specifically, whether both parents must consent to, and foster, a prospective de facto parent's formation and establishment of a parent-like relationship with the child. The term "de facto parent" means "parent in fact" and is used to describe a party, other than a child's legal parent, i.e., biological or adoptive parent, who claims custody or visitation rights based upon the party's relationship with a non-biological, non-adopted child. Conover v. Conover, 450 Md. 51, 62, 68 n.12, 146 A.3d 433, 439, 443 n.12 (2016).1 In Conover, id. at 85, 74, 146 A.3d at 453, 446-47, a case involving one biological parent, this Court recognized de facto parenthood in Maryland and adopted a four-factor test set forth by the Supreme Court of Wisconsin in In re Custody of H.S.H.-K., 533 N.W.2d 419, 421, 435-36 (Wis. 1995), under which a person seeking de facto parent status must prove the following when petitioning for custody of or visitation with a child:
Conover, 450 Md. at 74, 146 A.3d at 446-47 (quoting H.S.H.-K., 533 N.W.2d at 435-36).
The circumstances of Conover, id. at 54-55, 146 A.3d at 435, involved a same-sex couple and a dispute over one spouse's right of access to a child conceived by artificial insemination. The child was born before the couple was married, one spouse was the biological mother of the child (the child's birth certificate did not identify a father) and the other spouse was not the adoptive parent of the child. In other words, Conover concerned a custody dispute where there was only one legal parent and a third party sought de facto parent status. In Conover, this Court issued a majority opinion and two concurring opinions. One concurring opinion, id. at 87-88, 146 A.3d at 454-55, expressed concerns about the possible implications of the Majority's holding in situations in which there are two legal parents and a prospective de facto parent:
By adopting the four-factor test set forth in H.S.H.-K., 533 N.W.2d at 435, the Majority holds that, under the first factor, when seeking de facto parent status, the third party must show "that the biological or adoptive parent consented to, and fostered, the third party's formation and establishment of a parent-like relationship with the child." In other words, the Majority holds that only one parent is needed to consent to and foster a parent-like relationship with the would-be de facto parent. This will work in cases such as this one, where a second biological or adoptive parent does not exist, i.e., where there is only one existing parent. Where there are two existing parents, however, permitting a single parent to consent to and foster a de facto parent relationship could result in a second existing parent having no knowledge that a de facto parent, i.e., a third parent, is created. Such situations may result in a child having three parents vying for custody and visitation, and being overburdened by the demands of multiple parents. Today, many children are not living in a classic nuclear family. Families include not only same-sex married parents—in which one parent had a child before marriage—but also separated or divorced parents who conceived children during a marriage, as well as two parents who have never married. TheMajority has written broadly a solution for de facto parents that will serve couples well under circumstances similar to the parties in this case, where there is only one biological or adoptive parent. The majority opinion, however, will have greater consequences in cases for children with two existing parents because a de facto parent request may occur without the knowledge or consent of the second existing parent. Children who already have difficulty with visitation schedules, or experience custody issues pertaining to two parents, will not be served well by the creation of a test that does not account for the second existing parent's knowledge and consent.
(Watts, J., concurring). The concerns expressed in the concurring opinion in Conover are squarely before the Court in this case and we must now address the question of where there are two legal parents whether both legal parents must consent to and foster a third party's formation and establishment of a parent-like relationship with a child under the first factor of the H.S.H.-K. test. After careful consideration, we answer the question in the affirmative.
In this case, E.N., Petitioner, is the biological mother of two minor children, G.D. and B.D. D.D. is the biological father of the children. The four lived together as a family until late 2009, when D.D. was incarcerated for drug offenses. Thereafter, the children lived with E.N. and E.N.'s mother, their maternal grandmother. In late 2013, D.D. was released from prison and entered into a new relationship with T.R., Respondent, to whom he was engaged at the time of the trial in this case. In 2015, D.D. and T.R. purchased a home together and later that year the children moved in with the couple. The children lived with D.D. and T.R. until late 2017, when D.D. was incarcerated again for drug offenses, this time in a federal prison in Pennsylvania. After D.D.'s incarceration, the children continued to live with T.R. In November 2017, while T.R. and the children were visiting the children's paternal grandparents, E.N. arrived and sought the return of her children.E.N. was rebuffed by T.R. and law enforcement officers were called to the house. The children returned from the grandparents' home to T.R.'s house the following day. In February 2018, T.R. filed in the Circuit Court for Prince George's County a complaint for custody, seeking sole legal and physical custody of the children. E.N. filed a counter-complaint, seeking sole legal and physical custody of the children. Following a five-day trial on the merits, the circuit court granted T.R.'s complaint for custody and denied E.N.'s complaint. Despite expressly determining that E.N. did not consent to or foster the children's relationship with T.R. or even know T.R., the circuit court concluded that the four factors of the H.S.H.-K. test were satisfied and T.R. was a de facto parent of the children. The...
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