E.N. v. T.R.

Decision Date12 July 2021
Docket NumberNo. 44, Sept. Term, 2020,44, Sept. Term, 2020
Citation255 A.3d 1,474 Md. 346
Parties E.N. v. T.R.
CourtCourt of Special Appeals of Maryland

Argued by Kenneth E. McPherson (Kenneth E. McPherson, Chtd., Fulton, MD), on brief, for Petitioner.

Argued by Tisha S. Hillman (Largo, MD), on brief, for Respondent.

Argued before: Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

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., 193 Wis.2d 649, 533 N.W.2d 419, 421, 435-36 (1995), under which a person seeking de facto parent status must prove the following when petitioning for custody of or visitation with a child:

(1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child;
(2) that the petitioner and the child lived together in the same household;
(3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation; and
(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

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. The Majority 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 circuit court granted joint legal custody of the children to T.R. and E.N., with tie-breaking authority awarded to T.R., and granted sole physical custody of the children to T.R., with visitation for E.N., the children's biological mother.

E.N. appealed and the Court of Special Appeals affirmed the circuit court's judgment. See E.N. v. T.R., 247 Md. App. 234, 252, 236 A.3d 670, 680 (2020). The Court of Special Appeals held "that a de facto parent relationship may be established by the conduct of only one legal parent" even where there are two extant legal parents and that a de facto parent has an equal fundamental constitutional right with the legal parents concerning the care, custody, and control of a child. Id. at 237, 247, 236 A.3d at 672, 678. E.N. filed in this Court a petition for a writ of certiorari , which we granted. See E.N. v. T.R., 471 Md. 519, 242 A.3d 1117 (2020).

Against this background, we must decide whether, where there are two existing legal parents, a de facto parent relationship may be created through the fostering and consent of only one legal parent to the formation of such a relationship, without the consent of the second legal parent. We hold that, under the first factor of the H.S.H.-K. test adopted by this Court in Conover for establishment of de facto parenthood, to establish de facto parenthood, where there are two legal (biological or adoptive) parents, a prospective de facto parent must demonstrate that both legal parents consented to and fostered a parent-like relationship with a child, or that a non-consenting legal parent is an unfit parent or exceptional circumstances exist.

In this case, it is clear that, although D.D. may have consented to and fostered T.R.’s formation and establishment of a parent-like relationship with his and E.N.’s children, E.N. did not consent to and foster the relationship between her children and T.R., (or even know T.R.) and T.R. did not establish that E.N. was unfit or that exceptional circumstances existed such that T.R. could be declared a de facto parent. Because T.R. failed to satisfy the first factor of the H.S.H.-K. test, the circuit court erred in concluding that she was a de facto parent to the children and in granting her joint legal custody and sole physical custody. As such, we reverse the judgment of the Court of Special Appeals, which affirmed the circuit court's judgment.

BACKGROUND

E.N. and D.D. are the biological parents of two minor children, G.D. and B.D., a daughter and son who were born in 2005 and 2007, respectively.2 From 2005 until approximately October 2009, E.N. and D.D. lived together with the children in an apartment in Upper Marlboro, Maryland. I...

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