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De facto parenthood requires both parents’ consent, Maryland high court says

“Endorsing a holding that would permit de facto parenthood to be established with the consent of only one parent where there are two legal parents would intrude upon the second parent’s constitutional rights, be inconsistent with our case law concerning parental custody (case law holding that third party intervention for custody requires a showing of unfitness or exceptional circumstances) and would potentially create circumstances that are untenable," Judge Shirley M. Watts wrote for the high court majority. (The Daily Record/File Photo)

“Endorsing a holding that would permit de facto parenthood to be established with the consent of only one parent where there are two legal parents would intrude upon the second parent’s constitutional rights, be inconsistent with our case law concerning parental custody (case law holding that third party intervention for custody requires a showing of unfitness or exceptional circumstances) and would potentially create circumstances that are untenable,” Judge Shirley M. Watts wrote for the high court majority. (The Daily Record/File Photo)

An adult intimately involved in a child’s upbringing cannot be regarded as a “de facto parent” with a claim to visitation or a share of custody unless both of the youngster’s legal parents consented to and fostered the child’s parent-like relationship with the individual, a divided Maryland high court ruled this week.

In its 5-2 decision, the Court of Appeals held that each legal parent has a fundamental and constitutional right “to direct and govern the care, custody and control of the parent’s children” that trumps a third party’s claim to visitation in the absence of both parents’ explicit or implicit consent and promotion of that intimate relationship.

That right can be taken away only by the third party’s showing that the nonconsenting parent is unfit or that exceptional circumstances exist that supersede the parent’s right, the high court stated.

The court rendered its decision in denying de facto parenthood to a woman who helped raise two children with the father’s consent and support but without the mother’s.

The Court of Appeals’ decision followed its landmark 2016 ruling that a child’s nonparent caregiver can be deemed a de facto parent with visitation or custodial rights based on the rationale that “a legal parent does not have a right to voluntarily cultivate their child’s parental-type relationship with a third party and then seek to extinguish it.”

But that decision involved a claim to de facto parenthood and custody in the case of a child who had just one legal parent, his biological mother. The mother had consented to and fostered the boy’s close relationship with her girlfriend and later wife until the custody dispute arose with their divorce, the high court ruled in establishing de facto parenthood in Conover v. Conover.

Left unanswered in Conover was whether a third party could be deemed a de facto parent of a child who has two legal parents when one of them did not consent to or foster the parent-like relationship.

On Monday, the high court said no.

“Significantly, there exists a well-established presumption that a child’s best interests are served by maintaining parental rights, such that even the Supreme Court has accepted the presumption that parents act in the best interests of their children,” Judge Shirley M. Watts wrote for the Court of Appeals majority.

“Endorsing a holding that would permit de facto parenthood to be established with the consent of only one parent where there are two legal parents would intrude upon the second parent’s constitutional rights, be inconsistent with our case law concerning parental custody (case law holding that third party intervention for custody requires a showing of unfitness or exceptional circumstances) and would potentially create circumstances that are untenable,” Watts added.

But Judge Jonathan Biran said in dissent that the high court’s requirement for both parents’ consent to the de facto parent’s standing will not be in the child’s best interest when that important bond is cut due to the lack of just one parent’s consent.

“In my view, the majority errs by failing to give any weight to the rights of children to maintain relationships with parental-type caregivers after those relationships have been formed and fostered for a significant period of time by at least one legal parent,” Biran wrote in the dissent Chief Judge Mary Ellen Barbera joined.

“To be sure, a legal parent has a fundamental right to parent their child, but that right must be balanced in each case against the harm that will befall a child if a relationship with another parental figure is severed,” Biran added. “The only way a court can undertake that balancing analysis is if all parties who have maintained a parent-child relationship for a significant period of time have standing to make their case for custody and access to the child.”

Family law attorney Ferrier R. Stillman said Thursday that she disagrees with the court’s decision, which she characterized as a regression to an earlier era of child custody proceedings.

“It’s back to the days when the child’s psychological well-being is not a significant factor in the decision on custody,” said Stillman, of Tydings & Rosenberg LLP in Baltimore. “

“It puts the legal parents’ rights ahead of the child’s best interests,” added Stillman, who was not involved in the case. “It hearkens back to the days when the parents’ rights were paramount to anything else.”

But Barbara A. Babb, of the University of Baltimore School of Law, said the high court’s decision correctly addressed the constitutional rights of parents while permitting third parties to seek visitation or custody if they can show a parent was unfit or exceptional circumstances existed.

“The constitutional, fundamental right to parent must be protected,” said Babb, who directs the school’s Sayra and Neil Meyerhoff Center for Families, Children and the Courts. “Parents’ rights to raise their children as they see fit are fundamental.”

The high court’s decision was a defeat for the father’s live-in girlfriend, whom lower courts had found to be a de facto parent of his two children and awarded her custody, over the mother’s objection.

At trial, the woman – identified in court papers as T.R. — stated that she had lived with the children for the three years leading up to the start of the custody litigation she initiated in 2018.

These years included the most recent one without the father, who had been convicted of gun and drug possession and sentenced to 10 years in prison.

T.R. told the Prince George’s County Circuit Court of the father’s consent and fostering of her relationship with his children. She also said the mother, identified as E.N., had very little contact with the children, seeing them only two or three times between 2015 and 2018.

The mother countered that she neither explicitly nor implicitly consented to T.R.’s relationship with the children and rebutted the contention she was an absentee parent.

Judge Ingrid M. Turner declared T.R. to be a de facto parent – despite the lack of two-parent consent — and awarded her sole physical custody of the two children.

Turner also awarded T.R. joint legal custody with – and decision-making authority over — the mother, who was granted visitation rights, including three weekends per month, alternating weeks during the summer and every other Thanksgiving and Christmas break.

The intermediate Court of Special Appeals upheld the judge’s decision, prompting the mother to seek review by the high court.

In its ruling, the Court of Appeals threw out the custody award to T.R., saying she did not qualify as a de facto parent due to the mother’s lack of consent and fostering of the parent-like relationship.

The mother’s attorney, Kenneth E. McPherson of Fulton, could not be reached for comment Thursday on the court’s decision.

T.R.’s attorney, Tisha S. Hillman of Largo, did not respond to a message Thursday seeking comment on the ruling.

Watts was joined in the majority opinion by Judges Robert N. McDonald, Michele D. Hotten, Joseph M. Getty and Brynja M. Booth.

The high court rendered its decision in E.N. v. T.R., No. 44, September Term 2020.

 


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