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In 2020, the Court of Special Appeals was called upon to resolve a question left open by the state’s high court just a few years earlier: “Where there are two legal parents, 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?” E.N. v. T.R., 247 Md. App. 234, 237 (2020).  As previously reported in MSBA’s Case Notes, the Court of Special Appeals relied largely on a concurring opinion in Conover v. Conover, 451 Md. 51 (2016), to answer the question in the affirmative and hold that a de facto parent relationship can be established by the actions of one parent over the objection of another. Its reliance on the concurrence, it turns out, was misplaced. In E.N. v. T.R. (No. 44, Sept. Term 2020) (July 12, 2021), a divided Court of Appeals reversed the intermediate appellate court and held that “where there are two legal (biological or adoptive) parents, the prospective de facto parent must demonstrate that both legal parents consented to and fostered such relationship, or that the non-consenting legal parent is unfit or exceptional circumstances exist.” Id., Slip Op. at 70.

The terms de facto parent, parent-in-fact, or psychological parent “are 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.” Id. at 1.  In Conover, the Court of Appeals recognized this relationship in Maryland and adopted a four-part test to determine its presence. To claim rights as a de facto parent, the claimant must prove that he or she lived with the child, assumed significant obligations of parenthood, had been in a parental role long enough to establish a parental relationship, and “that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child[.]” Conover, 450 Md. at 74. The battle lines in E.N. were drawn around the issue of consent.

Conover involved a couple who, before and after they were married (and for a time after they divorced), jointly raised a child conceived by one of them and an anonymous sperm donor. When the sole biological or legal parent sought to end visitation for her former spouse, a majority of the Court of Appeals announced that de facto parenthood could be used by the non-biological “parent” as “a viable means to establish standing to contest custody or visitation,” if a legal parent previously consented to the formation of the relationship. Conover, 451 Md. at 66.  But in Conover, there was only one legal parent. In E.N., there were two.

E.N. (Mother) and D.D. (Father) lived with their biological children from 2005 until 2009, when Father was incarcerated. Upon his release in 2013, Father entered into a relationship and eventually moved in with T.R. The children started visiting the home on weekends, and in 2015, moved in with them. Father returned to prison in 2017. The children remained with T.R.

In 2018, T.R. sought legal custody of the children, alleging that she was their de facto parent because they had lived with her for three years without any significant contact with their mother.  Mother filed a counterclaim seeking sole legal and physical custody of the children.  From jail, Father filed a document purporting to give “full custody” of the children to T.R., but otherwise did not participate in the litigation. Id. at 8. The issue left open in Conover was joined.

When it answered this question, the Court of Special Appeals found persuasive a concurring opinion in Conover in which Judge Shirley Watts concluded:  “[T]he Majority holds that only one parent is needed to consent to and foster a parent-like relationship with the would-be de facto parent . . . .” Conover, 450 Md. at 87–88 (Watts, J., concurring, emphasis added).  Judge Watts would have preferred that the Court qualify the consent prong of the de facto parent test by providing that when there are two parents, the consent of both would be required. The majority declined to do so.

The Court of Special Appeals found Judge Watts’ first-hand report of the Court’s holding in Conover compelling. “That the Majority did not respond to Judge Watts’s specific and substantive concerns provides us at least some evidence that the Court of Appeals did not disagree with her interpretation of the majority opinion.”  E.N. v. T.R., 247 Md. App. at 246. There was little more to it than that, other than to review how and why courts elsewhere split on this issue.

It was clear from her opinion that if confronted with the question presented in E.N., Judge Watts would side with Mother. When the case finally arrived at her doorstep, the judge, writing for the majority on a court that had welcomed four new members in the five years since Conover was decided, did exactly that. The ranging, 71-page rebuke of the lower court included an admonition that the Court’s silence as to views expressed in a concurring or dissenting opinion “should not be interpreted as indicative of how the Court would hold when an issue discussed by the concurring or dissenting opinion is later before the Court.” Slip Op. at 56. The majority also addressed questions glossed over by the Court of Special Appeals including, inter alia, whether finding a de facto parent relationship over the objection of a parent infringes on fundamental constitutional rights of that parent (it does), and whether a parent’s implied consent to the relationship might be sufficient to trump those rights (it might).

On the constitutional question, the Court first noted that  “there is a fundamental [14th Amendment] constitutional right to parent one’s children and a presumption in favor of a parent having the right to raise his or her own children.” Id. at 50. It thus concluded that “to declare the existence of a de facto parentship based on the consent of only one parent and ignore whether a second legal parent has consented to and fostered the establishment of a parent-like relationship, or is a fit parent or whether exceptional circumstances exist undermines and, essentially, negates that parent’s constitutional right to the care, custody, and control of the parent’s children.” Id. at 52.

The Court’s conclusion was tempered by its announcement that the consent requirement of the de facto parent test might be satisfied by the second parent’s implied consent, provided that it was knowing and voluntary, id. at 57, and by allowing a trial court to consider “the non-consenting parent’s fitness and whether exceptional circumstances exist” that might permit the trial judge to look past the non-consenting parent’s constitutional claim. Id. at 57; 65. The seeds of future conflict have been sown.

In a spirited dissent, Judge Jonathan Biran, joined by then-Chief Judge Mary Ellen Barbera, declared: “There is no sound basis in law or policy to require that both legal parents must consent to and foster a third party’s parental-type relationship with their child before a family court may recognize the third party as a de facto parent with standing to seek custody and visitation.”  Id., Biran, J. dissenting at 1. He added that “the Majority’s holding is a step backwards along the path to a modern understanding of the best interests of children, and will inevitably result in judicial determinations that harm children.” Id.

The dissent not only accorded the Conover concurrence the import attributed to it by the Court of Special Appeals, id. at 2–3, but also took issue with an approach that elevated the rights of parents over the best interests of the child, which in his view had always been of paramount concern in custody and visitation cases: “The fundamental flaw in the Majority’s holding is that, by eliminating the ability to consider a parental-type relationship that has developed in the life of a child (barring a finding of parental unfitness or ‘exceptional circumstances’), it prevents a family court from fully assessing and furthering the child’s best interests in its custody determination.” Id. at 5. “I cannot join an opinion that will lead to the severing of parental-type relationships without first giving a family court the opportunity to consider whether it is in the best interests of a child to allow a psychological parent to have some measure of access to the child and, thereby, keep intact the bond that has formed.” Id. at 28.

Both opinions dig deeply into these and other issues that led their authors and subscribers to the disparate conclusions reached. They review cases from sister jurisdictions, other authorities, and an array of approaches taken elsewhere on the question presented. This includes, as the dissent notes, the Washington State Legislature’s overruling a declaration by its high court that both parents must consent to the creation of de facto parenthood. The dissent fell short of calling for legislative intervention in this instance, but it did chide the majority for leaning on an opinion that is no longer good law in the state in which it was drafted.  If the dissent was correct in its prediction that the Court’s ruling will do unconscionable harm to Maryland’s children, someone else just might take the question to the State House.