Conover v. Conover
2016 Md. LEXIS 813, 146 A.3d 433, 450 Md. 51 (2016)
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Rule of Law:
Maryland recognizes the doctrine of de facto parenthood, establishing that individuals who meet a four-factor test for de facto parent status have standing to seek custody or visitation, and are not required to first demonstrate parental unfitness or exceptional circumstances before a court applies the 'best interests of the child' standard.
Facts:
- In July 2002, Michelle and Brittany Conover began a relationship.
- The couple discussed having a child, agreeing that Brittany would be artificially inseminated from an anonymous donor.
- Their son, Jaxon, was conceived in 2009 and born in April 2010; Brittany was listed as Jaxon’s mother on the birth certificate, with no one identified as the father.
- Michelle and Brittany married in the District of Columbia in September 2010, when Jaxon was approximately six months old.
- In September 2011, Michelle and Brittany separated.
- From the date of separation until July 2012, Michelle visited Jaxon and had overnight and weekend access.
- In July 2012, Brittany prevented Michelle from continuing to visit Jaxon.
- Michelle helped choose the anonymous sperm donor, Jaxon sometimes called Michelle 'Dada' or 'Daddy,' Brittany sometimes referred to Michelle as Jaxon's father, and the parties signed a document indicating they agreed to 'joint custody' of Jaxon.
Procedural Posture:
- In February 2013, Brittany Conover filed a Complaint for Absolute Divorce in the Circuit Court for Washington County, stating that there were no children shared by the couple from the marriage.
- Michelle Conover filed an Answer later that month, requesting visitation rights with respect to Jaxon, and in March 2013, she filed a Counter-Complaint for Absolute Divorce, repeating her request for visitation rights.
- In April 2013, the Circuit Court for Washington County held a hearing to determine Michelle’s standing to seek access to Jaxon, where Brittany argued Michelle lacked parental standing, and Michelle asserted standing under ET § 1-208(b) and under extraordinary circumstances.
- In June 2013, the Circuit Court issued a written opinion concluding that Michelle did not have standing to contest custody or visitation, finding she was not Jaxon’s 'father' under ET § 1-208(b) and that de facto parent status was not recognized in Maryland under Janice M. v. Margaret K.
- Michelle Conover timely appealed the Circuit Court’s order on visitation to the Court of Special Appeals (intermediate appellate court).
- The Court of Special Appeals affirmed the Circuit Court’s decision, ruling that Michelle was a 'third party' who would have to show exceptional circumstances to obtain access to Jaxon, even if she qualified as a 'father' under ET § 1-208(b).
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Issue:
Does Maryland recognize de facto parenthood as a valid legal status, thereby allowing a de facto parent to establish standing to contest custody or visitation without first proving parental unfitness or exceptional circumstances?
Opinions:
Majority - Adkins, J.
Yes, Maryland recognizes the doctrine of de facto parenthood, allowing de facto parents to establish standing to contest custody or visitation without first demonstrating parental unfitness or exceptional circumstances. The Court overrules its prior decision in Janice M. v. Margaret K. because it was "clearly wrong and contrary to established principles" and has been "superseded by significant changes in the law or facts." Janice M. incorrectly relied on McDermott and Koshko, which involved "pure third parties" (grandparents) and failed to distinguish them from individuals who have assumed a parental role, ignoring the crucial bond a child forms with a de facto parent. The narrow U.S. Supreme Court decision in Troxel v. Granville does not preclude the recognition of de facto parent status, as numerous other state courts have held. Societal changes, including Maryland's recognition of same-sex marriage in 2012, further demonstrate the need to adapt common law to address the needs of children in non-traditional families, who are often ill-served by rigid definitions of parenthood. A majority of states and prominent legal scholarship also endorse the concept of de facto parenthood. The Court adopts the four-part H.S.H.-K. test, which requires proof of the legal parent's consent and fostering of the relationship, cohabitation, assumption of parental obligations without financial compensation, and a sufficiently bonded, dependent relationship. This test is narrowly tailored to avoid infringing on parental autonomy and is consistent with the fundamental right of parents, as a legal parent does not have a right to cultivate a child's parental-type relationship with a third party and then unilaterally extinguish it. Maryland's equity courts have broad jurisdiction over children's welfare, allowing the judiciary to define common law in this area where statutory law is silent.
Concurring - Greene, J.
Yes, de facto parent status should be recognized in Maryland, and the H.S.H.-K. test should be adopted and applied. However, a person who qualifies as a de facto parent should still be required to establish "exceptional circumstances" to justify a "best interest of the child" analysis. Justice Greene views de facto parent status as a subset of exceptional circumstances. While the psychological bond fostered by the legal parent is a relevant factor, it is not the only one. Consistent with Ross v. Hoffman, the burden should remain on the party seeking access (like Michelle Conover) to demonstrate exceptional circumstances before a best interest analysis is conducted. The trial judge would then consider de facto parent status alongside other probative factors, such as the length of time the child has been away from the legal parent, the child's age when care was assumed, the emotional effect of a change, the time elapsed before reclaiming access, and the stability of the child's future.
Concurring - Watts, J., which Battaglia, J., joins
Yes, de facto parenthood should be recognized in Maryland. However, the Majority's adopted H.S.H.-K. test is too broad and needs additional limits and safeguards, especially concerning the requirement for only one parent's consent when two legal parents exist. Justice Watts expresses concern that the H.S.H.-K. test, as adopted, only requires one biological or adoptive parent's consent to foster a de facto parent relationship. This could lead to a third parent being created without the knowledge or consent of a second existing legal parent, potentially overburdening children. Justice Watts notes that Maryland law for standby guardianship requires consent from both parents or documented efforts to locate an absent parent. The General Assembly's previous failures to pass more narrowly constructed de facto parent bills, which often included dual-parent consent requirements, underscore the need for judicial caution. Justice Watts suggests that when two existing parents are present, both parents should consent, or reasonable efforts to locate the second parent should be documented. If dual consent is not obtained, the party seeking de facto parentage should still be required to establish exceptional circumstances, similar to other third parties, for consideration of the child's best interests.
Analysis:
This case fundamentally alters Maryland family law by formally recognizing de facto parenthood, moving beyond strict biological or adoptive definitions. By eliminating the requirement for de facto parents to prove unfitness or exceptional circumstances before a "best interests of the child" analysis, the Court significantly lowers the standing threshold and prioritizes the child's established emotional bonds and stable relationships. This decision reflects the judiciary's adaptation of common law to evolving societal norms, particularly regarding non-traditional families and same-sex parents, aligning Maryland with a majority of other states. Future cases will likely focus on the precise application of the four-factor H.S.H.-K. test and its practical implications, especially in complex family structures involving two legal parents where the concerns raised by the concurring opinions may become salient.
