Maryland courts continue to struggle with the de facto parent, a term “used generally to describe a party who claims custody or visitation rights based upon the party’s relationship, in fact, with a non-biological, non-adopted child.” Conover v. Conover, 451 Md. 51, 62 (2016). In Janice M. v. Margaret K., 404 Md. 661 (2008), the Court of Appeals held that Maryland does not recognize the de facto or psychological parent relationship, and thus overruled a contrary conclusion reached by the Court of Special Appeals eight years earlier. Eight years later, the high court overruled itself, and held that “de facto parenthood is a viable means to establish standing to contest custody or visitation,” at least where the only existing legal parent consented to a formation of the relationship with the child. Conover, 451 Md. at 59, 66. Most recently, in E.N. v. T.R.. (No. 1231, Sept. Term 2019) (Aug. 25, 2020), the Court of Special Appeals was presented with a question left open in Conover: “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?” Id., Slip Op. at 1. In a case of first impression in Maryland, the Court of Special Appeals answered in the affirmative, and held that a de facto parent relationship can be established by the actions of just one parent, over the objection of another. Id.
In Conover, the former spouse of a child’s biological parent sought visitation with a child who she had helped raise from birth. As the child had been conceived using an anonymous sperm donor, there was only one legal parent. Recognizing the importance of the de facto parent relationship to the modern family dynamic, the Court of Appeals acknowledged the status and adopted a four-part test to determine its presence, requiring proof:
(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 (quoting In Re H.S.H.-K., 533 N.W.2d 419, 435–36 (Wisc 1995)).
The question presented in E.N. v. T.R. concerned only the first element of this test – consent.
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 a relationship and began living with T.R. The children started visiting on weekends, and then moved in with them in 2015. In 2017, Father was incarcerated again, and the children continued to live with T.R. Id. at 2.
In February 2018, T.R. filed a complaint seeking legal custody of the children. T.R. alleged 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 claiming to give “full custody” of the children to T.R., but otherwise did not participate in the litigation. Id. at 2–3.
The circuit court found that T.R. was a de facto parent. It granted sole physical custody to T.R., and joint legal custody to her and Mother. Mother appealed, arguing that where there are two parents, the first element of the test required in Conover cannot be satisfied “unless both legal parents consent to and foster the relationship between the child and the putative de facto parent.” Id. at 5.
The Court of Special Appeals rejected Mother’s argument. After discussing cases from two other jurisdictions that split on this issue, the Court turned to the task of “aspir[ing] to discern how the Court of Appeals would resolve this case of first impression.” Id. at 10. It noted that because there was only one legal parent in Conover, the Conover court did not have to reach the question now presented. Id. at 7. There was, however, a concurring opinion filed in that case which did address it, and the Court of Special Appeals found this determinative.
In abiding by the result in Conover, Judge Shirley Watts wrote in the concurrence: “[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. This will work in cases such as this one . . . 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.” Conover, 450 Md. at 87–88 (Watts, J., concurring). Judge Watts would have preferred that the Court qualify the consent prong of the de facto parent test by providing that where there are two parents, the consent of both would be required before a de facto parent relationship before could be found. Id. at 93. It thus appears that if confronted with the question presented in E.N., Judge Watts would have sided with Mother.
The Court of Special Appeals glossed over Judge Watts’s reservations, and noted only that the majority had failed to engage her on this issue. “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., Slip Op. at 11. Since it is “not uncommon for the Court of Appeal’s majority opinion to respond to issues raised in concurring and dissenting opinions,” the Court of Special Appeals deemed the absence of a response persuasive: “Accordingly, we hold that a de facto parent relationship can be created by only one legal parent consenting to and fostering a parent-like relationship with a putative de facto parent.” Id. at 12.
There was little more to it than that. The Court of Special Appeals elected not to address the trial court’s conclusion that the de facto parent relationship could not, as a matter of law, have been created through Mother’s implied consent. Id. at 5, n. 4. In this regard, it should be noted that the primary justification for the recognition of the de facto parent is the legal parents’ assent to the relationship: “[T]he first factor [in the H.S.H.-K. test] is critical because it makes the biological or adoptive parent a participant in the creation of the psychological parent’s relationship with the child. This factor recognizes that when a legal parent invites a third party into a child’s life, and that invitation alters a child’s life by essentially providing him with another parent, the legal parent’s rights to unilaterally sever that relationship are necessarily reduced.” Conover, 450 Md. at 75. The test does not literally require express consent.
The H.N. opinion thus sets up several issues for the Court of Appeals, including the efficacy of one parent consent, the question of implied consent, and one that was raised but received only brief attention: “whether recognition of T.R.’s de facto parenthood infringed upon Mother’s fundamental [due process] rights where Mother neither consented to nor fostered the de facto relationship.” Slip Op. at 14. Until these questions are resolved, the courts’ struggle with the de facto parent relationship will continue.