E.N. v. T.R.
| Decision Date | 25 August 2020 |
| Docket Number | No. 1231,1231 |
| Parties | E.N. v. T.R. |
| Court | Court of Special Appeals of Maryland |
DE FACTO PARENTHOOD—TWO LEGAL PARENTS—CONSENT BY ONE LEGAL PARENT
Appellant E.N. ("Mother") and D.D. ("Father") are the biological parents of two minor children who were born in 2005 and 2007. The four lived together until 2009, when Father was incarcerated. Thereafter, the children lived with Mother and the maternal grandmother.
In late 2013, Father was released from prison, and began a relationship with appellee T.R. Father and T.R. moved in together, and the children began visiting them "almost every weekend." In 2015, Father and T.R. purchased a home together, and later that year the children moved in, partially because they wanted to spend more time with Father, but also because Mother needed a break "to get herself right."
The children continued to live with Father and T.R. until late 2017, when Father was again imprisoned. Despite Father's incarceration, the children continued to live with T.R.
In November 2017, while T.R. and the children were visiting with the children's paternal grandparents, Mother appeared and demanded their return. Police diffused the situation, and the children returned to T.R.'s home the following day. Mother neither contacted nor saw the children again until September 2018.
In February 2018, T.R. filed a complaint for custody, essentially alleging that she was the children's "de facto" parent because the children had lived with her for the preceding three years, and had almost no contact with Mother during that time. Mother filed a counter-complaint requesting sole legal and physical custody. From prison, Father filed a document purporting to give T.R. "full custody" of the children.
Following a hearing, the circuit court concluded that T.R. was the de facto parent of the children even though it expressly found that Mother did not consent to or foster the relationship with T.R. The court granted T.R. physical custody with joint legal custody to T.R. and Mother. Mother then noted this timely appeal in which she claims that the circuit court erred because both legal parents must consent to and foster a parent-like relationship to create a de facto parent relationship with a third party.
Held: Judgment affirmed.
Although technically an issue of first impression in Maryland, the Court of Appeals has implicitly held that one parent may consent to the creation of a de facto parent relationship. In Conover v. Conover, 450 Md. 51 (2016), a same-sex couple case, the Court of Appeals for the first time recognized de facto parenthood in Maryland. Although there was only one biological parent in Conover, the Court of Appeals's holding in its most literal sense recognized that one legal parent's conduct could create a de facto parent relationship with a third party.
In her concurrence in Conover, Judge Watts interpreted the majority opinion to hold that "only one parent is needed to consent to and foster a parent-like relationship with the would-be de facto parent." Id. at 87-88. She expressed concern, however, that in cases with two biological parents, one biological parent could unilaterally consent to and foster a de facto parent relationship without any knowledge by the other legal parent. In this case, we adopt Judge Watts's interpretation of the majority opinion in Conover.
Additionally, recognition of T.R.'s de facto parenthood will not infringe on Mother's fundamental rights because once T.R. achieved de facto parent status, she had co-equal fundamental constitutional rights with Mother.
Finally, the circuit court did not abuse its discretion in awarding T.R. primary physical custody where the court found that T.R. is a "wonderful mother," that Mother's request for custody seemed insincere, that the children felt that Mother abandoned them and instead viewed T.R. as their "real" mother, and that T.R. is an integral part of the children's lives.Circuit Court for Prince George's County
REPORTED
Kehoe, Beachley, Shaw Geter, JJ.
Opinion by Beachley, J.
This case presents the precise issue that Judge Watts presciently recognized in her concurring opinion in Conover v. Conover, 450 Md. 51 (2016): Where there are two legal parents,1 may only one parent consent to and foster a parent-like relationship so as to create a de facto parent relationship with a third party? Stated another way, where there are two extant legal parents, must both legal parents consent to and foster the creation of a de facto parent relationship with a third party? We shall hold that a de facto parent relationship may be established by the conduct of only one legal parent. We shall further hold that the trial court here did not err in awarding primary physical custody of the children to the de facto parent.
Because appellant E.N. ("Mother") does not challenge the circuit court's fact-findings, we recount the relevant facts from the trial court's memorandum opinion. Mother and D.D. ("Father") are the biological parents of two minor children who were born in 2005 and 2007. Mother and Father lived together with the children from 2005 until Father was incarcerated on drug charges in October 2009. After Father was incarcerated, Mother and the children lived with the maternal grandmother.
Father was released from prison in late 2013. Around this time, he began a relationship with appellee T.R. and the two moved in together. The children began visiting with Father and T.R. "almost every weekend."
In 2015, Father and T.R. purchased a home together. Later that year the children moved in with Father and T.R., primarily because the children wanted to spend more time with Father. In order to facilitate the move, Mother signed paperwork to permit the children to transfer from the school they had been attending to a school in Father's school district. Mother agreed to this arrangement, testifying that she needed a break "to get herself right."
The children continued to live with Father and T.R. until late 2017, when police raided their home and discovered several firearms, ammunition, and a "significant amount" of cocaine. Father was ultimately convicted of drug distribution and related firearms violations, resulting in ten years' imprisonment. He is scheduled to be released in August 2024. From June 2015 to late 2017, Mother only saw the children once, in the spring of 2017 when she took the children out to dinner with their grandparents.
After Father's incarceration in 2017, the children continued to live with T.R. In November 2017, while T.R. and the children were visiting with the children's paternal grandparents, Mother appeared at the grandparents' home and asked for the return of her children. T.R. refused. The police ultimately arrived to defuse the situation. The children stayed the night at the paternal grandparents' home, but returned to T.R.'s home the following day. Mother did not see or have contact with the children again until September 2018.
On February 16, 2018, T.R. filed a complaint for custody, essentially alleging that she was the children's "de facto" parent because the children had lived with her for thepreceding three years during which they had no contact with Mother.2 Mother filed a counter-complaint requesting sole legal and physical custody of the children. Although Father was named as a defendant in T.R.'s complaint, he never formally answered the complaint. Instead, Father filed a document purporting to give T.R. "full custody" of the children.
The case proceeded to trial on September 13, 2018. Because T.R. was unable to complete her case in chief on September 13, the court scheduled the case for completion on November 19-20, 2018. In light of the approximately two-month delay to resume the trial, the circuit court issued a pendente lite order granting Mother visitation with the children every other weekend "until the November 19 and 20, 2018 hearings." After the November merits hearing, the court continued the pendente lite visitation order while the court held the matter sub curia.3 On July 2, 2019, the court issued a Memorandum Opinion and Order in which it concluded that T.R. was the de facto parent of the children, and granted "sole physical custody" to T.R. and joint legal custody to T.R. and Mother. Mother noted this timely appeal.
A de facto parent, sometimes referred to as a "psychological parent" in other jurisdictions, is a person who is not a child's biological or adoptive parent but who has a parent-like relationship with the child. Conover, 450 Md. at 62, 68 n.12. To establish de facto parenthood, the Court of Appeals has adopted the four-part test from In re Custody of H.S.H.-K., 533 N.W.2d 419, 421 (Wis. 1995). That test requires a putative de facto parent to prove:
Conover, 450 Md. at 74 (quoting H.S.H.-K., 533 N.W.2d at 435-36).
In her appeal, Mother challenges only the circuit court's determination as to the first element of the H.S.H.-K test. Specifically, she argues that the circuit court erred in construing the first element of the H.S.H.-K test by finding the existence of a de facto parentrelationship based on the...
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