E.N. v. T.R.

E.N. v. T.R., No. 44, September Term, 2020 DE FACTO PARENTHOOD – TWO LEGAL PARENTS – CONSENT TO PROSPECTIVE DE FACTO PARENT’S FORMATION AND ESTABLISHMENT OF PARENT-LIKE RELATIONSHIP WITH CHILD – Court of Appeals held that under first factor of test for establishment of de facto parenthood—whether biological or adoptive parent consented to, and fostered, petitioner’s formation and establishment of parent-like relationship with child—where there are two legal (biological or adoptive) parents, prospective de facto parent must demonstrate that both legal parents consented to and fostered such relationship, or that non-consenting legal parent is unfit or exceptional circumstances otherwise exist. To declare existence of de facto parentship based on consent of only one legal parent and ignore whether second legal parent has consented to and fostered establishment of parent-like relationship, or is fit parent or whether exceptional circumstances exist undermines parent’s constitutional right to care, custody, and control of parent’s children. Disregarding whether both legal parents have consented to and fostered prospective de facto parent’s parent-like relationship with child, or that parent is otherwise unfit or exceptional circumstances exist, runs afoul of parent’s constitutional rights and basic family law principles. Court of Appeals held that legal parent’s actual knowledge of and participation in formation of third party’s parent-like relationship with child may occur either through parent’s express or implied consent to and fostering of relationship.

Inquiry into whether legal parent impliedly consented to and fostered potential de facto parent’s formation of parent-like relationship with child is fact-specific inquiry to be determined on case-by-case basis. Permitting de facto parenthood to be established based on express or implied consent of both legal parents, where there are two existing legal parents, or showing of unfitness or exceptional circumstances strikes appropriate balance between parent’s fundamental right to raise child and best interest of child. Court of Appeals held that in this case conduct of one legal parent met the requirement that parent consent to and foster prospective de facto parent’s formation and establishment of parent-like relationship with children. Court of Appeals held, however, that record demonstrated that second legal parent did not expressly or impliedly consent to and foster prospective de facto parent’s formation of parent-like relationship with children.

As such, although second, third, and fourth factors of de facto parent test may have been satisfied, first factor was not, and trial court erred in concluding that person was de facto parent to children and in granting person joint legal custody and sole physical custody. Circuit Court for Prince George’s County Case No. CAD18-04949 Argued: April 13, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 44 September Term, 2020 ______________________________________ E.N. v. T.R. ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Opinion by Watts, J. Barbera, C.J., and Biran, J., dissent. ______________________________________ Filed: July 12, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-07-12 15:44-04:00 Suzanne C. Johnson, Clerk 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., 533 N.W.2d 419, 421, 435-36 (Wis. 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 1 In Conover, 450 Md. at 67 -68 & n.12, 146 A.3d at 442 -43 & n.12, we observed that the “term ‘psychological parent’ is closely related to the ‘de facto parent’ label in that the[] designations are used to describe persons who have assumed a parental role” and that the terms are used interchangeably in other jurisdictions. 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 -2- 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. -3- 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 -4- 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 2 We summarize the pertinent factual background from the circuit court’s Memorandum Opinion and Order, issued on June 24, 2019, focusing primarily on the residential history of the children. On brief in this Court, E.N. advises that, although she -5- approximately October 2009, E.N. and D.D. lived together with the children in an apartment in Upper Marlboro, Maryland. In October 2009, D.D. was incarcerated following entry of a guilty plea in the Circuit Court for Prince George’s County to possession with intent to distribute and possession of a firearm with a nexus to drug trafficking.

D.D. was sentenced to fifteen years’ imprisonment, with all but five years suspended, for possession with intent to distribute, and a concurrent five years’ imprisonment for the firearm charge. After D.D. was incarcerated, E.N. and the children lived with E.N.’s mother, the children’s maternal grandmother. Approximately four years later, in October 2013, D.D. was released from prison. Around the same time, D.D. began a relationship with T.R. and the two moved in together.

The children began visiting with D.D. and T.R. almost every weekend. In 2015, D.D. and T.R. bought a home together. E.N. was aware that D.D. had a romantic partner, but she did not know the woman’s identity or where the woman resided. Although the children lived with E.N. and her mother from late 2013 to 2015, according to the circuit court, during this time period, E.N. “was not an involved parent and demonstrated little parental responsibility for the children.” In June 2015, the children moved into D.D. and T.R.’s house, mainly because the children wanted to spend more time with D.D. To help facilitate the move, E.N. signed paperwork to permit the children to transfer from the school that they had been attending “does not agree with some of the” findings of fact made by the circuit court in the memorandum opinion, she acknowledges that she is bound by the factual findings of the circuit court and does not challenge them. -6- to a school in D.D.’s school district.

E.N. did not object to the move because she “needed a break” “to get herself right.” After the move, D.D. identified T.R. as an emergency contact for the children with their new school. The children continued to live with D.D. and T.R. until late 2017, when law enforcement officers raided the home and found three firearms, ammunition, and a significant amount of cocaine. D.D. was convicted in federal court of possession with intent to distribute cocaine and possession of firearms related to drug trafficking and sentenced to a total of ten years’ imprisonment. At the time of trial in this case, D.D. was serving his sentence at a federal prison in Pennsylvania and his approximate release date is August 2024.

T.R. and the children were reportedly unaware of D.D.’s criminal activity and that drugs and guns were located in the home. From June 2015 to late 2017, while the children were living with D.D. and T.R., E.N. saw the children once, in the spring of 2017, when she took the children out to dinner with their grandparents. In addition, the circuit court found that “there was evidence that [E.N.] attempted to locate her children a few times in order to retrieve them and bring them home.” After D.D. was incarcerated in 2017, the children continued to live with T.R. In November 2017, while T.R. and the children were visiting with the children’s paternal grandparents, E.N. went to the grandparents’ home and asked for her children to be returned to her. T.R. refused.

Law enforcement officers were called to the home to diffuse the situation. The children stayed the night at the grandparents’ home but returned to T.R.’s home the following day. E.N. did not see or have contact with the children again until September 2018, when the trial in the case began. -7- Circuit Court Proceedings On February 16, 2018, T.R., proceeding pro se, filed in the circuit court a complaint against E.N. and D.D., seeking sole legal and physical custody of the children. In the complaint, T.R. alleged that the children had lived with her for the preceding three years and that they had no contact with E.N. In support of the complaint, T.R. included a letter from D.D., dated November 30, 2017.

The entirety of the letter consisted of the following sentence: “I[, D.D.,] grant full custody to T.R. for my two children[,] GD 12 years old and BD 10 years old[,] for legal guardianship[3] while I’m incarcerated.” The letter was signed by D.D. and notarized.4 On March 12, 2018, E.N., proceeding pro se, filed an answer to the complaint, a counter-complaint for custody, and a motion for emergency relief. In the answer, which was a circuit court form answer, E.N. denied all of the allegations in the complaint and checked the box requesting that the circuit court dismiss or deny the complaint. In the counter-complaint, E.N. alleged that she should be granted sole legal and physical custody of her children, without visitation by D.D. because he was incarcerated. In the motion for emergency relief, E.N. sought an immediate order directing T.R. to return the children, stating that she had no contact with her children and alleging that D.D. and T.R. were hiding the children from her and that she knew the children were in danger.

The circuit court denied the motion for emergency relief. 3 In the letter, D.D. did not expressly seek or consent to de facto parenthood for T.R. and limited the request for legal guardianship to the period of his incarceration. 4 D.D. did not file an answer to the complaint for custody. -8- On June 8, 2018, T.R., still proceeding pro se, filed an answer to the counter- complaint. T.R. acknowledged that E.N. was the mother of G.D. and B.D. but denied that it was in the children’s best interest for E.N. to be granted custody. On September 10, 2018, an attorney entered an appearance on T.R.’s behalf. On September 13, 2018, the circuit court began a trial on the merits of the complaint and counter-complaint.

D.D. did not participate in the trial that day. During opening statements, for the first time, T.R.’s counsel advised the circuit court that T.R. sought de facto parent standing under Conover. E.N., still proceeding pro se, advised the circuit court that she had made attempts to see her children but D.D. and T.R. kept the children away from her and that she was fighting for the return of her children. T.R. began her case-in- chief by calling E.N. as her first witness.

After direct examination ended, E.N. was not offered an opportunity to give testimony by way of cross-examination. T.R. was unable to finish her case-in-chief that day, so the circuit court scheduled trial to resume on November 19 and 20, 2018. In light of the delay in resuming the trial, the circuit court issued a pendente lite order granting E.N. visitation with the children. In addition, the circuit court directed T.R. to bring the children to court with her on November 19, 2018 for the court to interview the children in camera alone.5 On November 19, 2018, T.R. and E.N. appeared with counsel for the continuation 5 On October 24, 2018, T.R. filed a motion seeking the appointment of a custody evaluator.

On November 8, 2018, an attorney entered an appearance on E.N.’s behalf. E.N., through counsel, filed an opposition to the motion seeking the appointment of a custody evaluator, and the circuit court denied the motion. -9- of the trial. D.D. appeared telephonically from federal prison. Before resuming trial, the circuit court conducted separate in camera interviews of the children.

Following the interviews, when the case was called, E.N.’s counsel objected to the in camera interviews occurring before the circuit court had received all of the evidence in the case. The circuit court overruled the objection, reasoning that it had planned to interview the children before E.N. retained counsel. The circuit court advised that a court reporter had been present during the interviews and that transcripts could be obtained, and the court summarized on the record statements it attributed to each child.6 Trial resumed the next day. D.D. testified, among other things, that, starting in the summer of 2013, the children began staying with him every weekend, rather than every other weekend.

According to the circuit court, D.D. testified that, while living with E.N. and her mother, the children would wear dirty clothes to school, ate “unhealthy and non- homecooked meals every day for dinner[,]” and slept on a couch in the basement of the home. D.D. testified that he developed concerns about the children living with E.N. and talked with her about having the children move in with him. In the spring of 2015, E.N. signed school transfer paperwork to facilitate the move. As for his relationship with T.R., D.D. testified that he and T.R. began living together in late 2013.

D.D. testified that he never introduced T.R. to E.N. D.D. testified that E.N. knew of T.R., though, and referred 6 According to the circuit court’s memorandum opinion, when interviewed individually in camera both children testified that “their relationship with [T.R.] was fantastic, that they felt loved by her like a mother, and wanted to remain living with her[.] Specifically, B.D. stated: who wouldn’t want to live in a nice, clean, loving environment; who wants to go back to roaches, dirty clothes, and sharing a blanket where you don’t feel loved?” - 10 - to T.R. as his “girlfriend.” D.D. eventually had a conversation with E.N., advising her that he and T.R. were in a relationship and that the children “[we]re around” T.R. D.D. testified that E.N. did not express any concerns at that time. As to T.R.’s relationship with the children, D.D. testified that the relationship was “out of this world” and that he is happy that the children “are around her and experiencing the good things that she offers to them.” Without referencing either de facto parent status or legal guardianship, T.R.’s counsel asked D.D. about the letter he wrote purporting to give full custody of the children to T.R. while he was incarcerated. D.D. responded that he and T.R. plan to get married and that T.R. has been around the children and knows them. D.D. testified that T.R. is financially able to take care of the children and that he can maintain his relationship with the children while incarcerated.

D.D. testified that he believed that T.R. was the best person to handle things that might arise medically with the children and that she was the person best able to provide for the children. On cross-examination, D.D. confirmed that, in 2009, he had been convicted of possession with intent to distribute a controlled dangerous substance and possession of a firearm in a drug trafficking crime in the circuit court and sentenced to fifteen years’ imprisonment, with all but five years suspended. D.D. also confirmed that, in 2017, he had been convicted in the United States District Court for the District of Maryland for possession with twenty grams or more of cocaine base and heroin with intent to distribute and possession of a firearm in furtherance of a drug trafficking crime and sentenced to sixty months’ imprisonment for each consecutively. In addition, D.D. confirmed that a search and seizure warrant had been executed at the house that he and T.R. shared with the - 11 - children and the cocaine, heroin, and three firearms that he was convicted of possessing were recovered from the house.

D.D. testified that after the children came to live him and T.R. in June 2015, E.N. could have come and picked up the children and spent time with them “any time she asked[.]” D.D. acknowledged that he wrote the letter dated November 30, 2017 purporting to grant T.R. full custody of the children for legal guardianship while he was incarcerated. D.D. agreed that he wrote the letter without consulting E.N. and did not give E.N. a copy of the letter. On redirect examination, D.D. denied that he had been keeping the children away from E.N. after 2015 and indicated that he wrote the letter of November 30, 2017 because he felt E.N. was incapable of raising the children. After D.D. was called as a witness by T.R. and cross-examined by E.N.’s counsel, the circuit court asked D.D. if there were any questions he would like to ask himself.7 D.D. responded by, among other things, describing himself as a wonderful father in spite of his “criminal activities” and stating that he has taught his children “morals and responsibilities.” Neither during the examination of D.D. by the parties’ attorneys nor during D.D.’s questioning of himself did D.D. reference or request that T.R. be made a de facto parent.

At the close of T.R.’s case, E.N.’s counsel moved for judgment on the ground that T.R. had failed to present evidence that E.N. was unfit or that there were exceptional circumstances. T.R.’s counsel opposed the motion, citing Conover and asserting that T.R. was entitled to de facto parent standing. The circuit court denied the motion for judgment 7 T.R. identified D.D. as a defendant in the case. - 12 - and stated: And I want to -- a couple of things. In the light most favorable concerning de facto parent, in the light most favorable, the Plaintiff has established that, but that’s only in the light most favorable.

We still have the -- as [E.N.’s counsel] mentioned, we still have the negative parts and things along those lines. But we -- if you go over the hurdle for the de facto parent, then you go to the best interest standards. I’m not sure that everybody’s had enough time to put on their best interest for the child standards. Because the trial had not concluded, the circuit court scheduled an additional trial day—April 4, 2019.

The trial resumed that day and E.N.’s mother testified on E.N.’s behalf. According to the circuit court, E.N.’s mother testified that, during the time the children lived with her, their clothes were clean and she contested the allegation that the children slept on a couch in the basement. The circuit court scheduled additional trial dates for May 29 and 30, 2019. T.R. and E.N. appeared on May 29, 2019, but D.D. was unavailable.

On May 30, T.R., E.N., and D.D. appeared for trial. E.N. testified on her own behalf, D.D. called his father as a witness, and T.R. testified as a rebuttal witness. At the close of all of the evidence, the circuit court heard closing argument from the parties. On June 24, 2019, the circuit court issued a Memorandum Opinion and Order, granting T.R.’s complaint for custody and denying E.N.’s counter-complaint for custody.

The circuit court concluded that T.R. was a de facto parent of the children and, as such, had standing to bring the complaint for custody and that it was in the best interest of the children to award her custody. Specifically, the circuit court awarded T.R. and E.N. joint legal custody of the children and awarded T.R. tiebreaker authority. In addition, the circuit court awarded T.R. sole physical custody of the children, with E.N. being given visitation - 13 - at specified times.8 In so awarding, the circuit court stated that the first factor of the H.S.H.-K. test was “undoubtedly the most important.” The circuit court determined that, although E.N. “was absent in the minor children’s lives since June 2015[,]” that absence did not automatically mean that E.N. consented to the formation of a de facto parent relationship between the children and T.R., as “E.N. could not consent because she lacked knowledge of T.R.’s existence and importance in the lives of the minor children.” The circuit court explained: Demonstratively, a parent is unable to consent and foster a de facto parent relationship by being absent and doing nothing. Here, E.N. was absent from the children’s lives since June 2015 and testified that she did not consent to this parental relationship.

Implied consent does not meet the burden to satisfy prong one of the Conover test. . . . [T]he consent needs to be express and explicit. Moreover, even though E.N. knew that [D.D.] had a romantic partner, she did not positively identify her, know her, or meet her until November 2017, more than two years into the living arrangement, when E.N. attempted to retrieve her children. In addition, there was evidence that E.N. attempted to locate her children a few times in order to retrieve them and bring them home. Furthermore, in this case, E.N. filed a counter complaint asking the Court to award her sole legal and physical custody directly opposing T.R.[’s] request. 8 The circuit court’s order set forth T.R.’s and E.N.’s entitlement to access to the children as follows: during the school year, E.N. would have visitation with the children on the first, third, and fourth weekends of every month, from 6:00 p.m. on Fridays until 6:00 p.m. on Sundays.

During the summer (which would be the Sunday after the children’s last day of school until the Sunday before the children restarted school in the fall), E.N.’s access would be on an alternating weekly basis from Sunday to Sunday at 6:00 p.m., with T.R. having the first week after the children’s last day of school. As to holidays, E.N. was given access on Thanksgiving break during odd years beginning in 2019, winter break and Christmas during even years beginning in 2020, each spring break, each Mother’s Day, and alternating years for each child’s birthday. T.R. was given access for each Father’s Day. - 14 - Despite concluding that E.N. did not consent to or foster the children’s relationship with T.R., the circuit court nonetheless concluded that Conover “allows a de facto parent relationship to be formed through the consent of only one parent, and once that relationship is formed, it may not be severed unless it is in the best interest of the child.” The circuit court determined that “the de facto test does not take into consideration which parent consented—the only item that matters is that a parent consented.” (Cleaned up). Utilizing this rationale, the circuit court concluded that “there was consent by a biological parent to satisfy the first prong, i.e., consent by the biological father,” D.D. The circuit court stated that there was “much testimony” showing that D.D. consented to the parent-like relationship between T.R. and the children.

Among other things, the circuit court stated: [D.D.] and T.R. would help the children with their homework and school work, buy them food and clothes, bring them to their medical appointments. There was even testimony that T.R. was listed as an emergency contact in the school for the minor children. Furthermore, there was testimony that T.R. would plan celebrations for the children on their birthdays and special accomplishments. Lastly, and most importantly, there was testimony that the children’s relationship really started to blossom and grown into a parent-like relationship in [or] about 2016, before [D.D.] was arrested on his current drug charges.

This is thus indicative of [D.D.]’s participation and fostering of the parent-like relationship. Indeed, even while still incarcerated, [D.D.] continues to consent to the parent-caliber relationship between the children and [T.R.]—and even submitted a document to the Court stating his desire for [T.R.] to have custody of the minor children. The circuit court concluded: The Court finds that this constitutes the knowing participation by a biological parent required to establish a de facto parent relationship between [T.R.] and the minor children. There is no dispute that T.R. cared for and supported the children with no expectation of financial compensation.

And given the - 15 - testimony, the Court finds that T.R.’s substantial degree of influence, care, and support of the children was, without question, consented to and fostered by [D.D.] The record makes clear that [D.D.] consented to and fostered T.R. assuming and acting in a parental role toward the minor children’s lives. Therefore, T.R. satisfies the first prong of the Conover test. . . . All of the actions pertaining to expressed consent were performed by [D.D.] Likewise, E.N. did not know where her children were and did not see them for three years. And as explained above, because of E.N.’s absence, she lacked the required knowledge and voluntariness required to expressly consent and foster a de facto parent relationship.

(Emphasis omitted). As to the other factors of the test for creation of a de facto parent relationship, the circuit court concluded that, because the children had lived in the same household as T.R. since June 2015, the second factor was satisfied. As to whether T.R. assumed obligations of parenthood without expectation of financial compensation, the circuit court concluded that the factor was satisfied, as “T.R.’s unrefuted testimony demonstrates that she took significant responsibility for the minor children’s care, education, and development, and contributed to their support, without any expectation of compensation.” The circuit court concluded that T.R. also satisfied the fourth factor—being “in a parental role for a sufficient amount of time to develop a parental caliber relationship”—because T.R. had shown that “she had developed a parental bond with the minor children since at least the summer of 2016.” (Cleaned up). The circuit court ultimately concluded that, because T.R. satisfied all four factors of the H.S.H.-K. test, T.R. was a de facto parent and that “her status in th[e] dispute over custody [wa]s equal to that of E.N.” The circuit court next employed the best interest of the child standard to determine the issue of custody.

Among other things, the circuit court concluded that it was - 16 - “uncontested that all parents are fit; there was no evidence to the contrary presented through the five days of trial.” The circuit court specifically determined that there had been “no voluntary abandonment or surrender of the children.” As to the financial status of the parents, the circuit court determined that T.R. earns an annual salary of $86,000, that E.N. makes $12.50 per hour, and that D.D. is incarcerated and not working. The circuit court determined that the children would “benefit from having all three parties [E.N., D.D., and T.R.] in their lives. T.R. is an integral part of the well-being of the two minor children. She takes full responsibility for the children and the children have bonded and established a parent-child relationship with her.” E.N. noted an appeal.

Opinion of the Court of Special Appeals On August 25, 2020, in a reported opinion, the Court of Special Appeals affirmed the circuit court’s judgment. See E.N., 247 Md. App. at 252, 237 , 236 A.3d at 680, 672. The Court of Special Appeals held that, where there are two extant legal parents, “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 247, 236 A.3d at 677. In so holding, the Court of Special Appeals relied largely on Conover and one of the concurring opinions in Conover.

See id. at 241, 236 A.3d at 674. The Court of Special Appeals stated: “In its most literal sense, Conover held that the conduct of one legal parent could create a de facto parent relationship between a third party and a child. But because there was only one legal parent in Conover, the Court was not required to, and indeed did not, address the issue presented here.” Id. at 242, 236 A.3d at 674 (footnote omitted). - 17 - The Court of Special Appeals relied in part on the circumstance that the Majority in Conover “did not respond to” the “specific and substantive concerns” expressed by the concurrence, which, in the Court of Special Appeals’s view, “provide[d] at least some evidence that the Court of Appeals did not disagree with [the concurring opinion’s] interpretation of the majority opinion.” Id. at 246, 236 A.3d at 677. The Court of Special Appeals cited cases in which majority opinions of this Court responded to concurring and dissenting opinions, stating that “it is not uncommon for the Court of Appeals’s majority opinion to respond to issues raised in concurring and dissenting opinions.” Id. at 246-47, 236 A.3d at 677 (cleaned up).

The Court of Special Appeals determined that, in this case, the circuit court did not err in concluding that T.R. was a de facto parent of the children based on one parent’s interaction with her, namely, D.D.’s “conduct in creating a parent- like relationship between T.R. and the children.” Id. at 247, 236 A.3d at 677 (footnote omitted). The Court of Special Appeals reasoned that E.N.’s due process rights were not constitutionally infringed upon where E.N. neither consented to nor fostered the de facto parent relationship “because, once T.R. achieved de facto parenthood status, T.R. qualified as a ‘legal parent’ entitled to co-equal fundamental constitutional protections.” Id. at 249, 236 A.3d at 679. The Court of Special Appeals concluded that “such a rule strikes the proper balance between parents’ fundamental rights to care for their children and the children’s fundamental rights to be placed with caregivers who will promote their best interests.” Id. at 249, 236 A.3d at 679 (citations omitted). The Court of Special Appeals addressed the circuit court’s best interest determination and held that the circuit court - 18 - conducted a “thorough review of the relevant custody factors” and that it did not abuse its discretion in awarding primary physical custody of the children to T.R. Id. at 252, 236 A.3d at 680.9 Petition for a Writ of Certiorari On September 25, 2020, E.N. petitioned for a writ of certiorari, raising the following issue: When a de facto parentship is formed and fostered at the behest of one legal parent without the knowledge or consent of the other legal parent, does the non-consenting parent retain her superior claim to custody, protected by the substantive component of the Fourteenth Amendment Due Process Clause, against the de facto parent, thereby requiring the de facto parent to prove that the non-consenting parent is unfit or that exceptional circumstances exist?

On December 7, 2020, this Court granted the petition. See E.N., 471 Md. 519 , 242 A.3d 1117 . DISCUSSION The Parties’ Contentions E.N. contends that a fit legal parent is entitled to custody of her children over a third party asserting de facto parentship where the objecting fit legal parent neither consented to nor fostered the de facto parentship formed on account of the other legal parent. E.N. argues that a legal parent has a fundamental, constitutional right to the care and custody of the parent’s child, such that the parent is entitled to raise the “child without being subjected to litigation brought by the government or a third party unless the legal parent is unfit or 9 The Court of Special Appeals did not expressly address the award of joint legal custody to T.R. and E.N. - 19 - exceptional circumstances make custody with the parent detrimental to the best interests of the child.” E.N. asserts that both the circuit court and Court of Special Appeals incorrectly applied the multi-factor test for de facto parentship set forth in Conover by concluding that a de facto parent relationship may be established by the conduct of only one legal parent where there are two legal parents.

E.N. maintains that, where there are two legal parents, the holding in Conover “does not eliminate the requirement that a third party prove unfitness or exceptional circumstances against a legal parent” who did not consent to or foster the de facto parent relationship. With respect to the circumstances of this case, E.N. points out that, as to the first factor of the de facto parent test, the circuit court expressly determined that she did not consent to or foster the formation and establishment of the de facto parent relationship between T.R. and the children. E.N. also points out that the circuit court concluded that she is a fit parent who did not voluntarily abandon her children and T.R. has not proven that exceptional circumstances exist. E.N. maintains that, properly applying Conover, the circuit court should have denied T.R. standing to seek custody.

E.N. maintains that “[a] third party does not qualify for de facto parenthood standing against a legal parent who did not participate in the formation or establishment of the de facto parent, . . . regardless of whether the de facto parent has a better home, job, and appears to be acting with benevolence.” T.R. responds that the Court of Special Appeals correctly held that a de facto parent relationship may be established where one biological parent consents to the fostering of the relationship and the other biological parent is absent from a child’s life for a period of - 20 - years. T.R. argues that the circumstances of this case demonstrate “intentional actions” by E.N. “that at the very least reflect implied consent to the fostering of a de facto parentship between” her (T.R.) and the children. T.R. maintains that D.D. gave express consent to de facto parenthood for her by writing a letter purporting to grant full custody of the children to her while he is incarcerated. According to T.R., E.N. gave implied consent when she, with the knowledge of D.D.’s incarceration, “chose to be absent and unavailable to care for the minor children—thereby creating the space to allow [T.R.] to give parental care to the minor children.” Although T.R. acknowledges that the circuit court did not find E.N. to be an unfit parent, she maintains that the following exceptional circumstance exists: “the strong and potent parental affection that is to lead to desire and efforts to care properly for and raise the child did not come in the form of the biological mother, based upon the testimony of the minor children.” (Cleaned up).

According to T.R., “[t]his is an exceptional circumstance in that it is not typical.” Standard of Review Maryland Rule 8-131(c) provides that, “[w]hen an action has been tried without a jury, the appellate court will review the case on both the law and the evidence.” The appellate court “will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Md. R. 8-131(c). “When a trial court decides legal questions or makes legal conclusions based on its factual findings, we review these determinations without deference to the trial court.” Plank v. Cherneski, 469 Md. 548, 569 , 231 A.3d 436 , - 21 - 448 (2020) (cleaned up). As such, “[w]here a case involves the application of Maryland statutory or case law, our Court must determine whether the [trial] court’s conclusions are legally correct under a de novo standard of review.” Id. at 569 , 231 A.3d at 448 (cleaned up). Family Law Principles, Parental Unfitness, and Exceptional Circumstances It is “well[ ] established that the right[] of parents to direct and govern the care, custody, and control of their children is a fundamental right protected by the Fourteenth Amendment of the United States Constitution.” Conover, 450 Md. at 60 , 146 A.3d at 438 (citations omitted). In In re Yve S., 373 Md. 551, 565 , 819 A.2d 1030, 1038 (2003), this Court explained: “Certain fundamental rights are protected under the U.S. Constitution, and among those rights are a parent’s Fourteenth Amendment liberty interest in raising his or her children as he or she sees fit, without undue influence by the State.” (Footnote omitted).

The Supreme Court of the United States “has deemed the right to rear a child essential and encompassed within a parent’s basic civil rights.” Id. at 566 , 819 A.2d at 1039 (cleaned up). In Troxel v. Granville, 530 U.S. 57, 65 (2000), the Supreme Court stated in no uncertain terms that the liberty “interest of parents in the care, custody, and control of their children[ ] is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Moreover, we have recognized that the “best interests of the child standard embraces a strong presumption that the child’s best interests are served by maintaining parental rights” and the Supreme Court has “placed its imprimatur on the presumption that parents act in the best interests of their children[.]” In re Yve S., 373 Md. at 571-72 , 819 A.2d at 1042 (citations omitted). - 22 - Importantly, “Maryland has consistently echoed the Supreme Court, declaring a parent’s liberty interest in raising a child a fundamental one that cannot be taken away unless clearly justified.” Id. at 566 , 819 A.2d at 1039 (citations omitted). Although there may be “some tension inherent amongst the[] deep-rooted principles” of the best interest of the child and the fundamental right of a parent to raise a child as the parent sees fit, Conover, id. at 60, 146 A.3d at 438 , in McDermott v. Dougherty, 385 Md. 320, 353 , 869 A.2d 751, 770 (2005), this Court recognized: Where the dispute is between a fit parent and a private third party, [] both parties do not begin on equal footing in respect to rights to “care, custody, and control” of the children. The parent is asserting a fundamental constitutional right.

The third party is not. A private third party has no fundamental constitutional right to raise the children of others. In other words, “the rights of parents to custody of their children are generally superior to those of anyone else[.]” Conover, 450 Md. at 60 , 146 A.3d at 438 . As such, we have “held that a third party seeking custody or visitation must first show unfitness of the natural parents or that extraordinary circumstances exist before a trial court could apply the best interests of the child standard.” Id. at 61 , 146 A.3d at 438 (citations omitted); see also Burak v. Burak, 455 Md. 564, 624 , 168 A.3d 883, 918 (2017) (The Court held “that for a third-party to have standing to intervene in a custody action, he or she must plead sufficient facts that, if true, would support a finding of either parental unfitness or the existence of exceptional circumstances and demonstrates that the best interests of the child would be served in the custody of the third-party.”).

In McDermott, 385 Md. at 325 , 869 A.2d at 754 , we held: [I]n disputed custody cases where private third parties are attempting to gain - 23 - custody of children from their natural parents, the trial court must first find that both natural parents are unfit to have custody of their children or that extraordinary circumstances exist which are significantly detrimental to the child remaining in the custody of the parent or parents, before a trial court should consider the ‘best interests of the child’ standard as a means of deciding the dispute. Similarly, in Koshko v. Haining, 398 Md. 404, 444-45 , 921 A.2d 171, 195 (2007), a case involving a grandparent visitation statute, we held “that there must be a finding of either parental unfitness or exceptional circumstances demonstrating the current or future detriment to the child, absent visitation from his or her grandparents, as a prerequisite to application of the best interests analysis.” We held that the grandparent visitation statute was unconstitutionally applied to the petitioners in that case “in the absence of a threshold finding of parental unfitness or exceptional circumstances[.]” Id. at 445 , 921 A.2d at 195 . We have explained that, in custody cases, “unfitness means an unfitness to have custody of the child, not an unfitness to remain the child’s parents; exceptional circumstances are those that would make parental custody detrimental to the best interest of the child.” In re Adoption/Guardianship of H.W., 460 Md. 201, 217 , 189 A.3d 284, 293 (2018) (cleaned up). This is in contrast to termination of parental rights cases.

Indeed, “[f]acts that might demonstrate unfitness or exceptional circumstances in a custody case are not always sufficient to terminate parental rights.” Id. at 217 , 189 A.3d at 293 .10 Additionally, we have stated that, with respect to “ordinary custody cases[,]” as opposed 10 In H.W., 460 Md. at 217 , 189 A.3d at 293 , this Court explained that, to justify a decision to terminate parental rights, the focus is “on the continued parental relationship, not custody[,]” and “[t]he facts must show that the parent is unfit to continue the relationship, or exceptional circumstances make the continued relationship detrimental to the child’s best interests.” (Cleaned up). - 24 - to termination of parental rights cases, the General Assembly “has carefully circumscribed the near-boundless discretion that courts have . . . to determine what is in the child’s best interests.” Id. at 218 , 189 A.3d at 293 (cleaned up). More recently, in Burak, 455 Md. at 648 , 168 A.3d at 932 , this Court elaborated on factors that are relevant to a trial court’s “inquiry into whether a parent is unfit sufficient to overcome the parental presumption in a third-party custody dispute[,]” stating that, in determining whether a parent is unfit, a trial court may consider whether: (1) the parent has neglected the child by manifesting such indifference to the child’s welfare that it reflects a lack of intent or an inability to discharge his or her parental duties; (2) the parent has abandoned the child; (3) there is evidence that the parent inflicted or allowed another person to inflict physical or mental injury on the child, including, but not limited to physical, sexual, or emotional abuse; (4) the parent suffers from an emotional or mental illness that has a detrimental impact on the parent’s ability to care and provide for the child; (5) the parent otherwise demonstrates a renunciation of his or her duties to care and provide for the child; and (6) the parent has engaged in behavior or conduct that is detrimental to the child’s welfare. Addressing the second factor, we conclude that “neglect” for the purposes of a finding of unfitness means that the parent is either unable or unwilling to provide for the child’s ordinary comfort or for the child's intellectual and moral development. We added that these factors “are not the exclusive criteria [on] which a court must rely to determine whether a parent is unfit, but should[ ] serve as a guide for the court in making its findings.” Id. at 649 , 168 A.3d at 932 .11 And, importantly, even if a parent is found to be unfit and custody is granted to a third party based on a trial court’s finding that such placement is in the child’s best interest, the parent “is not foreclosed from seeking to regain 11 In Burak, 455 Md. at 649 , 168 A.3d at 932 , we explained that in a third-party custody dispute, “our precedent establishes that [] evidence” of parental unfitness “may be shown by a [] preponderance of the evidence.” (Citations omitted). - 25 - custody of his or her child in the future upon a showing of changed circumstances.” Id. at 649 , 168 A.3d at 933 (citation omitted).

As to exceptional circumstances, in McDermott, 385 Md. at 419 , 869 A.2d at 809 , we identified the factors pertinent to such a finding: The factors which emerge from our prior decisions which may be of probative value in determining the existence of exceptional circumstances include the [1] length of time the child has been away from the biological parent, [2] the age of the child when care was assumed by the third party, [3] the possible emotional effect on the child of a change of custody, [4] the period of time which elapsed before the parent sought to reclaim the child, [5] the nature and strength of the ties between the child and the third party custodian, [6] the intensity and genuineness of the parent’s desire to have the child, [7] the stability and certainty as to the child’s future in the custody of the parent. . . . The need to find “exceptional circumstances” is derived from the belief that extreme care must be exercised in determining a custody placement other than with a fit parent. (Brackets in original) (cleaned up); see also In re Adoption/Guardianship of H.W., 460 Md. 201, 216 , 189 A.3d 284, 292 (2018) (We reiterated that the factors set forth above were to be used in a case to determine “whether exceptional circumstances were present in a custody dispute between a parent and a third party[.]”). With respect to the first factor, in Burak, 455 Md. at 663 , 168 A.3d at 941 , we explained that the purpose of the factor “is to determine whether the child [] has been outside the care and control of the biological parent for a sufficient period of time for a court to conclude that the constructive physical custody of the child has shifted from the biological parent to a third-party[,]” i.e., “whether a biological parent has, in effect, abandoned his or her child.” In McDermott, 385 Md. at 325-26 , 869 A.2d at 754 , we held that, in the absence of a finding of parental unfitness, “the requirements of a parent’s employment, such that he is required to be away at sea, or - 26 - otherwise appropriately absent from the State for a period of time, and for which time he or she made appropriate arrangements for the care of the child, do not constitute” exceptional circumstances to support an award of custody to a third party.

De Facto Parenthood in Maryland As explained above, a de facto parent is “a party who claims custody or visitation rights based upon the party’s relationship, in fact, with a non-biological, non-adopted child.” Conover, 450 Md. at 62 , 146 A.3d at 439 (cleaned up). In other words, a de facto parent is a person other than a child’s legal, i.e., biological or adoptive, parent who has a parent-like relationship with the child. See id. at 62 , 146 A.3d at 439 . In Conover, 450 Md. at 62 n.6, 146 A.3d at 439 n.6, we noted that the American Law Institute (“ALI”) defines a de facto parent as follows: [A]n individual other than a legal parent or a parent by estoppel who, for a significant period of time not less than two years, (i) lived with the child and, (ii) for reasons primarily other than financial compensation, and with the agreement of a legal parent to form a parent-child relationship, or as a result of a complete failure or inability of any legal parent to perform caretaking functions, (A) regularly performed a majority of the caretaking functions for the child, or (B) regularly performed a share of caretaking functions at least as great as that of the parent with whom the child primarily lived.

(Quoting American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.03(1)(c) (2003) (adopted May 16, 2000)). In Conover, id. at 85, 74, 146 A.3d at 453, 446-47 , this Court recognized de facto - 27 - parenthood and adopted the following four-part test from H.S.H.-K., 533 N.W.2d at 435 - 36, for determining whether a person is a de facto parent: (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. Because Conover is the primary case in Maryland concerning de facto parenthood, we will spend some time discussing the case. In Conover, 450 Md. at 55 , 146 A.3d at 435 , a same-sex couple, Michelle12 and Brittany, entered into a relationship in July 2002.

The two discussed having a child and agreed that Brittany would be artificially inseminated from an anonymous donor, and in April 2010, Brittany gave birth to a son. See id. at 55 , 146 A.3d at 435 . The child’s birth certificate identified Brittany as the mother, but no one was identified as the father. See id. at 55 , 146 A.3d at 435 .

Six months later, in September 2010, Michelle and Brittany married. See id. at 55 , 146 A.3d at 435 . A year later, in 12 In Conover, 450 Md. at 55 n.1, 146 A.3d at 435 n.1, on brief in this Court, Michelle advised that “she is now a ‘transgender man’ and state[d] that the record d[id] not reflect her gender identity because she transitioned to living as a man after the contested divorce hearing occurred.” Michelle advised that for consistency she would refer to herself using female pronouns. See id. at 55 n.1, 146 A.3d at 435 n.1.

As such, this Court also referred “to Michelle using female pronouns and her former name.” Id. at 55 n.1, 146 A.3d at 435 n.1. - 28 - September 2011, Michelle and Brittany separated. See id. at 55 , 146 A.3d at 435 . From September 2011 to July 2012, Michelle visited the child and had overnight and weekend access. See id. at 55 , 146 A.3d at 435 .

In July 2012, Brittany stopped allowing Michelle to visit with the child. See id. at 55 , 146 A.3d at 435 . In February 2013, Brittany filed a complaint for absolute divorce, and Michelle filed an answer requesting visitation rights with the child. See id. at 55 , 146 A.3d at 435 .

The following month, Michelle filed a counter-complaint for absolute divorce, again requesting visitation. See id. at 55 , 146 A.3d at 435 . Following an evidentiary hearing on Michelle’s request for visitation, the trial court issued a written opinion concluding that Michelle did not have standing to seek custody or visitation. See id. at 55-56 , 146 A.3d at 435-36 .

Although the trial court determined that Michelle was the child’s de facto parent, it stated that, in Janice M. v. Margaret K., 404 Md. 661 , 948 A.2d 73 (2008), the Court had concluded that de facto parenthood is not recognized in Maryland. See Conover, 450 Md. at 58 , 146 A.3d at 437 . As such, the trial court ruled that Michelle did not have third party standing to contest custody or visitation absent a showing of parental unfitness or exceptional circumstances, which Michelle had not demonstrated. See id. at 58 , 146 A.3d at 437 .

After the divorce was granted, Michelle appealed the trial court’s order as to visitation and the Court of Special Appeals affirmed. See id. at 58 , 146 A.3d at 437 . On certiorari, this Court overturned Janice M. as clearly wrong and contrary to established principles and as being superseded by significant changes in the law or facts and we recognized de facto parent status in Maryland, holding “that de facto parenthood is a viable means to establish standing to contest custody or visitation[.]” Conover, 450 Md. - 29 - at 66, 59, 146 A.3d at 442, 437 . We observed that, before Janice M., in S.F. v. M.D., 132 Md. App. 99 , 751 A.2d 9 (2000), the Court of Special Appeals had treated de facto parent status as sufficient to confer standing to seek visitation and had adopted the four-factor test set forth in H.S.H.-K. for determining whether a person is a de facto parent.

See Conover, 450 Md. at 61 , 146 A.3d at 439 . Stated otherwise, in Conover, id. at 66 , 146 A.3d at 442 , the Court determined that grounds for an exception to the principle of stare decisis13 existed and overruled Janice M. We pointed out that the cases relied on in Janice M.—primarily McDermott and Koshko—involved the rights of third parties, not those of people claiming de facto parent status. See Conover, id. at 67 , 146 A.3d at 442 . We concluded that “neither McDermott nor Koshko justified this Court’s decision in Janice M. What the Court failed to identify was any rationale for eliminating consideration of the parent-like relationship that the plaintiff sought to protect.

It seemingly ignored the bond that the child develops with a de facto parent.” Conover, id. at 69 , 146 A.3d at 443 . Moreover, we stated that Janice M. erred in its interpretation of the Supreme Court’s “narrow” decision in Troxel to reason that “Troxel undermined S.F. and the recognition of de facto parenthood.”14 13 “Under the doctrine of stare decisis, generally, a court must follow earlier judicial decisions when the same points arise again in litigation.” Sabisch v. Moyer, 466 Md. 327 , 372 n. 11, 220 A.3d 272 , 298 n.11 (2019) (cleaned up). We have explained, however, that stare decisis “is not absolute. Under [] two exceptions to stare decisis, an appellate court may overrule a case that either was clearly wrong and contrary to established principles, or has been superseded by significant changes in the law or facts.” Id. at 372 n.11, 220 A.3d at 298 n.11 (cleaned up). 14 In Troxel, 530 U.S. at 61 , grandparents of two minor children petitioned to obtain visitation rights pursuant to a state visitation statute, which provided that “[a]ny person may petition the court for visitation rights at any time, including, but not limited to, custody proceedings.

The Court may order visitation rights for any person when visitation may - 30 - Conover, id. at 69-70, 73 , 146 A.3d at 443-44, 446 . We determined that, prior to Janice M., the recognition of de facto parenthood in S.F. was, in actuality, “consistent with McDermott, Koshko, and Troxel because the [H.S.H.-K.] test [S.F.] used to determine de facto parenthood was narrowly tailored to avoid infringing upon the parental autonomy of a legal parent.” Conover, 450 Md. at 73 - 74, 146 A.3d at 446 . This Court expressly adopted the four-factor test first set forth in H.S.H.-K., stating that “[u]nder this strict test, a concern that recognition of de facto parenthood would interfere with the relationship between legal parents and their children is largely eliminated.” Conover, 450 Md. at 75 , 146 A.3d at 447 . The Court explained that de facto parenthood “does not contravene the principle that legal parents have a fundamental right to direct and govern the care, custody, and control of their children because 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.” Id. at 75 , 146 A.3d at 447 .

In addition to identifying the weak grounds on which the decision in Janice M. serve the best interest of the child whether or not there has been any change of circumstances.” (Cleaned up). A four-justice plurality held that the state visitation statute was unconstitutional as applied and that the state trial court’s visitation order in favor of the grandparents unconstitutionally infringed on the parent’s “fundamental right to make decisions concerning the care, custody, and control” of her children pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Troxel, 530 U.S. at 72-73 . As we explained in Conover, 450 Md. at 70 , 146 A.3d at 444 , the Supreme Court’s holding in Troxel was “extremely narrow” and the plurality in Troxel “expressly declined to address whether substantive due process requires a showing of harm before non-parental visitation is ordered and asserted that ‘we do not, and need not, define today the precise scope of the parental due process right in the visitation context.’” (Quoting Troxel, 530 U.S. at 73 ). - 31 - rested, we concluded that Janice M. had been undermined by subsequent events, primarily Maryland’s recognition of same-sex marriage in 2012, which demonstrated greater acceptance of different types of family units in society.

See Conover, id. at 77 , 146 A.3d at 448 (citations omitted). Moreover, at the time of the Court’s holding in Conover, “a majority of states, either by judicial decision or statute, [] recognize[d] de facto parent status or a similar concept.” Id. at 78 , 146 A.3d at 449 (citations omitted). We observed that “family law scholarship and the academic literature [] also endorsed the notion that a functional relationship—as well as biology or legal status—can be used to define parenthood.” Id. at 81 , 146 A.3d at 451 . We noted that the ALI had “recommended expanding the definition of parenthood to include de facto parents and includes a de facto parent as one of the parties with standing to bring an action for the determination of custody, subject to the best interests of the child analysis.” Id. at 81 , 146 A.3d at 451 (citation omitted).

We determined that Janice M. “sharply” deviated from the law in other jurisdictions, which reinforced “our decision to overturn Janice M. and recognize de facto parenthood” in Maryland. Conover, 450 Md. at 82 , 146 A.3d at 451 . We explained that, “[i] n light of our differentiation in McDermott, 385 Md. at 356 , 869 A.2d 751 , between ‘pure third parties’ and those persons who are in a parental role, we now make explicit that de facto parents are distinct from other third parties.” Conover, 450 Md. at 85 , 146 A.3d at 453 . We held that a de facto parent has “standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis.” Id. at 85 , 146 A.3d at 453 .

As such, we reversed the judgment of the Court of Special Appeals and directed that - 32 - Court to remand the case to the trial court for a “determination of whether, applying the H.S.H.-K. standards, Michelle should be considered a de facto parent[.]” Id. at 85 , 146 A.3d at 453 . As explained above, in Conover there were two concurring opinions. One concurring opinion agreed with the recognition of de facto parenthood in Maryland, but expressed concern that, in adopting the four-factor H.S.H.-K. test, the Majority adopted “a standard that [was] too broad and that could have a negative impact on children in Maryland[,]” in large part because de facto parenthood could be established with the consent of only one legal parent. Conover, id. at 87 , 146 A.3d at 454 (Watts, J., concurring).

The concurring opinion pointed out that in holding that when seeking de facto parent status, a 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 a child, the Majority apparently held “that only one parent [was] needed to consent to and foster a parent-like relationship with the would-be de facto parent.” Id. at 87-88 , 146 A.3d at 454-55 (Watts, J., concurring). The concurring opinion explained that the first factor of the H.S.H.-K. test, as framed by the Majority, would “work” where there is only one existing legal parent, but observed that where there are two existing parents, “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.” Id. at 88 , 146 A.3d at 455 (Watts, J., concurring). Such circumstances not only ignored the reality of family life, but also could “result in a child having three parents vying for custody and visitation, and being overburdened by the demands of multiple parents.” Id. at 88 , 146 - 33 - A.3d at 455 (Watts, J., concurring). The concurring opinion expressed concern that, where there are two existing parents, children would “not be served well by the creation of a test that does not account for the second parent’s knowledge and consent.” Id. at 88 , 146 A.3d at 455 (Watts, J., concurring).15 The concurring opinion offered the following guidance for the circumstance where a child has two existing parents: In every instance in which a trial court is confronted with a request for de facto parentship, the trial court should ascertain whether there are one or two existing biological or adoptive parents.

In the case of two existing parents, the trial court should require that the second parent have notice of the de facto parent request and ascertain whether the second parent consents to the de facto parent relationship. In satisfaction of the first prong of the H.S.H.-K. test, an action for de facto parenthood may be initiated only by an existing parent or a would-be de facto parent by the filing of a verified complaint attesting to the consent of the establishment of de facto parent status. The trial court should find by clear and convincing evidence that the parent has established: [] that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child, and in the event of two existing biological or adoptive parents, that both parents consented to the establishment of a de facto parentship[.] Id. at 93 , 146 A.3d at 458 (cleaned up) (Watts, J., concurring). The concurring opinion stated that, although the holding of the majority opinion was appropriate for the parties in the case, adoption of the four-factor H.S.H.-K. test, “with no additional safeguards or limitations” resulted in a “fail[ure] to provide important safeguards as to how de facto parentships are to be created and fail[ed] to serve all litigants, including those similarly 15 The concurring opinion observed that even creating a standby guardianship in Maryland has traditionally required the consent of both parents.

See Conover, 450 Md. at 89 , 146 A.3d at 455 (Watts, J., concurring). - 34 - situated to the parties in th[e] case as well as others who do not live in a classic nuclear family.” Id. at 94 , 146 A.3d at 458 (Watts, J., concurring). In Conover, 450 Md. at 75 n.18, 146 A.3d at 447 n.18, in a footnote, the majority commented on the potential recognition of successive de facto parents and stated that “[i]n deciding whether to award visitation or custody to a de facto parent, the equity court should also take into account whether there are other persons who have already been judicially recognized as de facto parents. A court should be very cautious and avoid having a child or family to be overburdened or fractured by multiple persons seeking access.” Despite addressing the concern of multiple de facto parents, however, the majority did not comment on the issue raised in the concurrence regarding the need for the consent of both parents where there are two legal parents. In a second concurring opinion, the Honorable Clayton Greene, Jr. also agreed with the recognition of de facto parent status in Maryland and the adoption and application of the H.S.H.-K. four-factor test, but disagreed “that a person who qualifies as a de facto parent is not required, per se, to establish exceptional circumstances.” Conover, 450 Md. at 86 , 146 A.3d at 453-54 (Greene, J., concurring).

Judge Greene would have required Michelle “to demonstrate exceptional circumstances to justify the need for a best interest analysis” and would have concluded that de facto parenthood “is a relevant factor but [] not the only factor for the court to consider in reaching [an] ultimate decision to grant child access.” Id. at 86 , 146 A.3d at 454 (Greene, J., concurring). Two years after Conover, in Kpetigo v. Kpetigo, 238 Md. App. 561, 565 , 192 A.3d 929, 932 (2018), the Court of Special Appeals rejected a father’s argument that Conover - 35 - recognized de facto parenthood only for same-sex married couples and affirmed a trial court’s finding that the father’s ex-wife was a de facto parent to F, the father’s son from a prior relationship. The father and the ex-wife had parented two boys—L, their biological child, who was born during the couples’ marriage, and F, the father’s son from a previous relationship with a woman who was a resident of the Ivory Coast. See id. at 565-66 , 192 A.3d at 932 .

From the time he was four months old, F, who was born in France, visited the father in the United States, with both the father and ex-wife caring for him. See id. at 566 , 192 A.3d at 932 . When F was three years old, the father and ex-wife married; at that time, F lived mostly full time with the couple. See id. at 566 , 192 A.3d at 932 .

After the father and ex-wife married, she expressed interest in adopting F, but the father was reluctant to disrupt the relationship between F and his biological mother. See id. at 566 , 192 A.3d at 932 . The ex-wife nevertheless cared for F as if he were her child and was involved in all aspects of his life. See id. at 566 , 192 A.3d at 932 .

In 2014, F was abducted by his mother while visiting her in Africa, and the father and ex-wife worked to regain custody. See id. at 566 , 192 A.3d at 932 . After F was returned, the father gained full physical and legal custody of F. See id. at 566 , 192 A.3d at 932 . Aside from F’s mother visiting once in 2015, her communication with F thereafter was through calls and video chats as a warrant had been issued for her arrest in the United States.

See id. at 567 , 192 A.3d at 933 . In December 2015, the father and ex-wife separated. See id. at 567 , 192 A.3d at 933 . Until that time, F had resided full time with the couple and after the separation both F and L initially lived with the ex-wife until F eventually moved to live with the father. - 36 - See id. at 567 , 192 A.3d at 933 .

The ex-wife continued to visit F until the father restricted visitation. See id. at 567 , 192 A.3d at 933 . Eventually, the ex-wife filed for a limited divorce and, among other things, sought visitation with F. See id. at 567-68 , 192 A.3d at 933 . Following a trial, the trial court issued an order finding, in pertinent part, that the ex- wife qualified as a de facto parent of F under the four-factor test adopted in Conover, that it was in F’s best interest to maintain his relationship with the ex-wife, and that the ex-wife was entitled to visitation with F. See Kpetigo, 238 Md. App. at 568 , 192 A.3d at 933 .

Apparently, F’s mother was named as a party, but never appeared and did not participate. See id. at 565 , 192 A.3d at 932 . The father appealed. See id. at 568 , 192 A.3d at 933 .

On appeal, the Court of Special Appeals concluded that “nothing in Conover suggest[ed] that de facto parenthood is available only to same-sex couples.” Id. at 574 , 192 A.3d at 937 . The Court of Special Appeals explained that “Conover’s de facto parenthood test measures the relationship between the putative de facto parent and the child—a relationship formed with the biological parent’s knowledge and consent—without reference to the parent’s characteristics or the relationship’s origins.” Id. at 574 , 192 A.3d at 937 . The Court of Special Appeals determined that the trial court properly applied Conover and observed that, at trial, the father had stipulated that the ex-wife satisfied the first two factors of the four-factor test—that the father had consented to the ex-wife’s parent-like relationship with F and that the ex-wife and F had lived together in the same household. See id. at 575-76 , 192 A.3d at 938 .

The Court of Special Appeals concluded that the trial court properly ruled that the ex-wife met the burden of satisfying the third and fourth factors for establishing de facto parenthood—she had assumed the obligations of - 37 - parenthood and had a parent-child bond with F. See id. at 576 , 192 A.3d at 938 . Although there were two known biological parents, the case did not concern the issue of whether in order to satisfy the first factor both parents were required to have consented to the fostering of a de facto parent relationship. Forms of Consent in Maryland The relevant concepts of consent generally fall into two categories—express consent and implied consent. “Express consent,” otherwise known as “affirmative consent,” is “[c]onsent that is clearly and unmistakably stated[,]” whereas “implied consent” is “[c]onsent inferred from one’s conduct rather than from one’s direct expression.” Express Consent, Black’s Law Dictionary (11th ed. 2019); Implied Consent, Black’s Law Dictionary (11th ed. 2019). Black’s Law Dictionary provides as a second definition of “implied consent” that it is “[c]onsent imputed as a result of circumstances that arise, as when a surgeon removing a gall bladder discovers and removes colon cancer.” Implied Consent, Black’s Law Dictionary (11th ed. 2019).

More basically, “consent” means “to give assent or approval[,]” “compliance in or approval of what is done or proposed by another[,]” or “agreement as to action or opinion.” Consent, Merriam- Webster.com Dictionary, Merriam-Webster, available at https://www.merriam- webster.com/dictionary/consent [https://perma.cc/EA9H-D788]. And “imply” means “to express indirectly[,]” “to involve or indicate by inference, association, or necessary consequence[,]” or “to recognize as existing by inference or necessary consequence especially on legal or equitable grounds[.]” Imply, Merriam-Webster.com Dictionary, Merriam-Webster, available at https://www.merriam-webster.com/dictionary/implied - 38 - [https://perma.cc/9RWQ-A9A7]. By way of background, as to implied consent, the concept is used in several areas, such as in torts, as a defense to a claim of trespass, and in Fourth Amendment search and seizure cases. In the context of a claim of trespass—“a tort involving an intentional or negligent intrusion upon or to the possessory interest in property of another”—the Court of Special Appeals explained that one element of such a claim is that the plaintiff must establish nonconsensual interference with a possessory interest in the plaintiff’s property.

Mitchell v. Balt. Sun Co., 164 Md. App. 497, 508 , 883 A.2d 1008, 1014 (2005), cert. denied, 390 Md. 501 , 889 A.2d 418 (2006) (cleaned up). Such interference must be without the plaintiff’s consent and “consent, either expressed or implied, constitutes a complete defense, so long as the scope of that consent is not exceeded.” Id. at 508, 883 A.2d at 1014 - 15 (citation omitted). In Mitchell, id. at 510-11 , 883 A.2d at 1016 , the Court discussed the concept of implied consent through custom and stated that “[c]onsent is willingness in fact for conduct to occur” which “may be manifested by action or inaction and need not be communicated to the actor.” (Cleaned up).

The Court of Special Appeals explained that “[i]f words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.” Id. at 511 , 883 A.2d at 1016 (cleaned up). The Court also observed: In determining whether conduct would be understood by a reasonable person as indicating consent, the customs of the community are to be taken into account. This is true particularly of silence or inaction. Thus if it is the custom in wooded or rural areas to permit the public to go hunting on private land or to fish in private lakes or streams, anyone who goes hunting or fishing may reasonably assume, in the absence of a posted notice or other manifestation to the contrary, that there is the customary consent to his entry - 39 - upon private land to hunt or fish.

Id. at 511 , 883 A.2d at 1016 (cleaned up). In the same case, the Court discussed implied consent through acquiescence—specifically, the argument that, because an occupant of a room at a private nursing home answered questions from reporters who were alleged to be intruding, he impliedly consented to their presence. See id. at 513 , 883 A.2d at 1017 . The Court reiterated that to constitute implied or apparent consent, the words or conduct at issue “must be reasonably understood by another to be intended as consent[,]” and determined that a reasonable trier of fact could have concluded that the reporters could not have reasonably believed that the occupant voluntarily responded to their questions or consented to their presence in his room.

Id. at 516 , 883 A.2d at 1019 . As such, the Court determined that there was a dispute of material fact as to whether the occupant consented to the interview. See id. at 517 , 883 A.2d at 1019 . In addition, the Court concluded that, viewing the facts in the light most favorable to the occupant, it was not persuaded that a nurse had either expressly or impliedly consented to the reporter’s presence in the room.

The Court stated that it was not persuaded that the nurse’s “silence and thankful farewell could reasonably be construed to constitute implied consent in the face of the [occupant]’s explicit directions for the reporters to leave his room.” Id. at 517 , 883 A.2d at 1020 . In the criminal law context, the Fourth Amendment prohibits warrantless searches and seizures, but it is well established that consent to a search or seizure is a recognized exception to warrant requirement. See Jones v. State, 407 Md. 33, 51 , 962 A.2d 393 , 402- 03 (2008). This Court has stated that “[a] search conducted pursuant to valid consent, i.e., - 40 - voluntary and with actual or apparent authority to do so, is a recognized exception to the warrant requirement.” Id. at 51 , 962 A.2d at 403 (cleaned up).

Where the State alleges that consent to a search or seizure was given, the State must prove that such “consent was freely and voluntarily given[,]” which “is a question of fact, to be decided based upon a consideration of the totality of the circumstances.” Id. at 51-52 , 962 A.2d at 403 (cleaned up). Consent to search “may be express, by words, but also may be implied, by conduct or gesture.” Turner v. State, 133 Md. App. 192, 207 , 754 A.2d 1074, 1082 (2000) (citation omitted). In Turner, id. at 207-08 , 754 A.2d at 1082-83 , the Court of Special Appeals elaborated that, in cases where consent was determined to have been given, the police made it known, either expressly or impliedly, that they wished to enter the defendant’s house, or to conduct a search, and within that context, the conduct from which consent was inferred gained meaning as an unambiguous gesture of invitation or cooperation or as an affirmative act to make the premises accessible for entry. By contrast, in those Fourth Circuit cases in which the court concluded that the facts could not support a finding of implied consent, the law enforcement officers either did not ask for permission to enter or search, and thus did not make known their objective, or, if they did, their request was met with no response or one that was nonspecific and ambiguous.

Finally, we observe that, in the context of federal bankruptcy law, in Wellness Int’l Network, Ltd. v. Sharif, 575 U.S. 665, 669, 683 (2015), the Supreme Court held that Article III of the Constitution of the United States “is not violated when the parties knowingly and voluntarily consent to adjudication by a bankruptcy judge” of Stern claims.16 Typically, 16 In Wellness, 575 U.S. at 673 , the Supreme Court explained that, in Stern v. Marshall, 564 U.S. 462 (2011), it “held that Article III prevents bankruptcy courts from entering final judgment on claims that seek only to augment the bankruptcy estate and would otherwise exist without regard to any bankruptcy proceeding.” (Cleaned up). - 41 - Stern claims would be adjudicated by a judge of an Article III court, but the Supreme Court concluded that bankruptcy litigants may waive the right to Article III adjudication of Stern claims. See Wellness, 575 U.S. at 679 . The Supreme Court concluded that “[n]othing in the Constitution requires that consent to adjudication by a bankruptcy court be express” and that nothing in the relevant statute requires express consent either. The Supreme Court stated that the relevant statute requires only that a bankruptcy court obtain the consent “of all parties to a proceeding before hearing and determining a non-core claim.” Id. at 684 (cleaned up).

The Supreme Court also discussed a prior case, Roell v. Withrow, 538 U.S. 580 (2003), concerning interpretation of a different statute, “which authorizes magistrate judges to conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, with the consent of the parties[,]” and in which the Court held that the consent need not be express as “the Article III right is substantially honored by permitting waiver based on actions rather than words.” Wellness, 575 U.S. at 684 (cleaned up). The Supreme Court determined that the implied consent standard set forth in in Roell provided “the appropriate rule for adjudications by bankruptcy courts[.]” Id. The Supreme Court emphasized, though, “that a litigant’s consent—whether express or implied—must still be knowing and voluntary.” Id. at 685 . To that end, according to the Supreme Court “the key inquiry is whether the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the non-Article III adjudicator.” Id.

(cleaned up). Relevant De Facto Parenthood Case Law from Other Jurisdictions Intermediate appellate courts in New Jersey and Washington, states that have or had - 42 - adopted the four-factor test from H.S.H.-K. for establishment of de facto parenthood,17 have considered whether the first factor requires the consent of both legal parents where there are two existing parents and have reached different results. Prior to the legislature in Washington enacting a statute,18 in In re Parentage of J.B.R., 336 P.3d 648, 649-50 (Wash. Ct. App. 2014), the Court of Appeals of Washington considered whether de facto parenthood could extend to a stepparent of a child who had two legal parents and held that de facto parenthood “may be so extended if the stepparent petitioner establishes the 17 See V.C. v. M.J.B., 748 A.2d 539 , 551-53 (N.J.), cert. denied, 531 U.S. 926 (2000); In re Parentage of L.B., 122 P.3d 161, 176-77 (Wash. 2005) (en banc), cert. denied sub. nom.

Britain v. Carvin, 547 U.S. 1143 (2006). 18 See Wash. Rev. Code Ann. § 26 .26A.440(4) (2019). Among other factors, the statute provides that an individual who claims to be a de facto parent of a child must demonstrate by a preponderance of the evidence that “[a]nother parent of the child fostered or supported the bonded and dependent relationship required under (e) of this subsection[.]” Id. at § 26.26A.440(4)(f). In a recent case in which the Court of Appeals of Washington addressed several issues under the new statute including whether a stepparent had alleged sufficient facts in a de facto parentage petition, the Court commented that the only requirement under Wash.

Rev. Code Ann. § 26 .26A.440(4)(f) is “that one parent – ‘another parent’ – support the petitioner’s relationship with the child.” Matter of L.J.M., 476 P.3d 636, 644 (Wash. Ct. App. 2020) (cleaned up). In a footnote, the Court observed that “[t]he court in J.B.R. analyzed under the common law whether both biological parents fostered and supported the petitioner’s relationship with the child. But [Wash.

Rev. Code Ann. §] 26.26A.440(4)(f) clearly refers to ‘another parent,’ not both parents.” Id. at 644 n.4 (cleaned up). In L.J.M., id. at 645, the Court remanded the stepparent’s de facto parentage petition for a full adjudication. The Court concluded “that whether one parent’s support of the petitioner’s relationship with the child comes at the expense of the other genetic parent is not relevant to the ‘parental support’ requirement under [Wash. Rev. Code Ann. §] 26.26A.440(4)(f).

The trial court erred in suggesting otherwise.” L.J.M., 476 P.3d at 645 ; see also Matter of Custody of SA-M, ___ P.3d ___, 2021 WL 2431598 , ⁵ (Wash. Ct. App. June 15, 2021). Despite subsequent changes in Washington law establishing a different test, in J.B.R., the Court of Appeals of Washington necessarily interpreted the four factors of the H.S.H.-K. test for establishment of de facto parenthood, the same factors that were adopted by this Court in Conover and that are before us in this case. - 43 - relevant four factors, which include establishing that both legal parents consented to the stepparent being a parent to the child.” (Emphasis in original). In that case, J.B.R. was born to Lacey Shows-Re and James Candler, who ended their relationship when J.B.R. was an infant.

See id. at 650. When J.B.R. was about two years old, Candler stopped visiting her and then had no contact with his daughter for over the next ten years. See id. Also, when J.B.R. was about two years old, Shows-Re entered into a relationship with Nathanial York, who treated J.B.R. as his own child.

See id. J.B.R. referred to York as her father and Shows-Re encouraged the relationship between the two. See id. Shows-Re and York had a child, N.A.Y., while together.

See id. Four years after beginning their relationship, Shows-Re and York ended it. See id. York sporadically visited N.A.Y. and J.B.R. for about two years, but then visitation became more regular.

See id. Four years later, a regular visitation schedule was set with N.A.Y. and Shows-Re allowed J.B.R. to accompany N.A.Y. on most of the visits. See id. After a disagreement about visitation, York filed a petition to establish himself as a de facto parent of J.B.R., who was eleven years old at the time.

See id. The trial court entered a temporary parenting plan for J.B.R. and the following month Candler responded to the de facto parent petition and filed a counterclaim for visitation. See id. The trial court appointed a guardian ad litem (GAL) to investigate whether J.B.R. would benefit from continuing the parent-child relationship with York, who recommended that York be declared J.B.R.’s de facto parent given the close relationship between the two.

See id. Among other things, the GAL found that York had a ten-year relationship with J.B.R. and that Candler had no contact with J.B.R. until the de facto parent petition was filed. See id. - 44 - Shows-Re moved to dismiss the de facto parent petition and the trial court denied the motion. See id. at 650-51.

The trial court specifically “found that J.B.R. did not have two existing, fit parents in her life at the time that [] York was introduced into [her] life.” Id. at 651. The trial court concluded that York had “made a prima facie showing of de facto parentage to defeat [] Shows-Re’s motion” and Shows-Re appealed. Id. On appeal, Shows-Re contended that de facto parenthood “is available only when a child does not have two legal parents whose roles are already established under [Washington’s] statutory scheme” and that, because J.B.R. has two biological parents, York and the trial court could not “carve out a space for a third parent without eroding the rights of the other two.” Id. at 653.

The Court of Appeals rejected that argument, determining based on Washington case law that “[t]he fact that J.B.R. has two living biological parents does not prohibit [] York from petitioning for de facto parentage.” Id. The Court observed that, in a prior case, the Supreme Court of Washington had concluded that “[t]he long-absent biological father’s emergence into [the child]’s life at the time of the petition did not prohibit application of the” de facto parent doctrine. Id. The Court turned to the four factors for establishment of de facto parenthood and concluded that York had clearly set forth a prima facie case for the second, third, and fourth factors.

See id. As to the first factor—whether “the natural or legal parent consented to and fostered the parent-like relationship”— the Court stated that it was undisputed that Shows-Re consented to and fostered the formation of a parent-child relationship between York and J.B.R. Id. The Court determined that York entered J.B.R.’s life while she was young and filled a role left vacant by her absent biological father, Candler. Id.

The Court - 45 - stated that Candler’s choice to not support J.B.R. or even to seek to have a relationship with her for over a decade demonstrated “his consent for [] York to establish a parent-child relationship with J.B.R.” Id. The Court observed that Candler’s complete non- involvement in J.B.R.’s life for over a decade “fostered th[e] relationship, as J.B.R. did not have an alternative person acting as a father figure.” Id. The Court stated: “If [] York undertook an unequivocal and permanent parental role with the consent of all existing parents but does not have a statutorily protected relationship, justice prompts us to apply the de facto parent test. This adequately balances the rights of biological parents, children, and other parties.” Id.

(cleaned up). By contrast, in K.A.F. v. D.L.M., 96 A.3d 975, 983 (N.J. Super. Ct. App. Div. 2014), the Appellate Division of the Superior Court of New Jersey concluded that the first factor of the H.S.H.-K. test requires the consent of only one legal custodial parent. In that case, K.A.F. and F.D. entered into a relationship and a few years later, a child, Arthur, was conceived by K.A.F. through artificial insemination.

See id. at 977 . F.D. adopted Arthur. See id. Later, K.A.F. and F.D. ended their relationship and K.A.F. entered into a relationship with D.M.,19 a mutual friend of K.A.F. and F.D. See id. at 977-78 .

K.A.F. apparently consented to and fostered the formation of a parent-like relationship between D.M. and Arthur, although F.D. opposed the relationship at all times. See id. at 978 . K.A.F. and D.M. eventually ended their relationship and D.M. sought custody of and visitation with Arthur. See id.

Both K.A.F. and F.D., the legal parents, opposed custody 19 In K.A.F., 96 A.3d at 977 , the Appellate Division of the Superior Court of New Jersey referred to D.L.M. as “D.M.” - 46 - and visitation by D.M. See id. The trial court dismissed D.M.’s claim based on F.D.’s opposition to the parent-like relationship between D.M. and Arthur, ruling that “where there are two fit and involved parents, both must have consented to the creation of a psychological parent relationship before a third party can maintain an action for visitation and custody based on the existence of that relationship.” Id. The intermediate appellate court disagreed, determining that it “fail[ed] to perceive any basis for th[e] argument either in the law or the policies underlying the concept of a psychological parent.” Id. at 979 . The Court explained that, where a third party seeks custody, a trial court must conduct a two-step analysis—first, to determine whether the presumption in favor of the legal parent is overcome by either a showing of unfitness or exceptional circumstances and then two, if the presumption has been rebutted, to determine whether awarding custody or other relief to the third party would promote the best interests of the child.

See id. at 981 . The Court indicated that psychological parent cases (i.e., de facto parent cases) are “a subset of ‘exceptional circumstances’ cases.” Id. at 980 (cleaned up). The Court stated that “it would be difficult to ignore the ‘psychological harm’ a child might suffer because he is deprived of the care of a psychological parent simply because only one of his ‘legal parents’ consented to the relationship.” Id. at 981 . The Court explained that the clear policy underlying cases from the Supreme Court of New Jersey “is that ‘exceptional circumstances’ may require recognition of custodial or visitation rights of a third party with respect to a child where the third party has performed parental duties at home for the child, with the consent of a legal parent, however expressed, for such a length of time that a parent-child bond has developed, and terminating that bond - 47 - may cause serious psychological harm to the child.” Id. at 981-82 (cleaned up).

The Court stated that it was “fatuous to suggest that this fundamental policy may be subverted, and that a court may not even examine the issue at a plenary hearing, where one of the child’s legal parents colorably claims lack of consent, in circumstances where the other legal parent has consented.” Id. at 982 . The Court also found significant the wording of the first factor of the test as well as the Supreme Court of New Jersey’s discussion of the test, stating: The Court’s continual reference to “a” legal parent or “the” legal parent in the singular strengthens our conclusion that the consent of both legal parents is not required to create a psychological parent relationship between their child and a third party. Nothing in the historical development of the psychological parent policy, in the policy itself, or in the language of the Court, therefore, suggests that both legal parents must consent before a court may consider a claim of psychological parenthood by a third party. Rather, it is sufficient if only one of the legal custodial parents has consented to the parental role of the third party.

In that circumstance, a legal custodial parent has voluntarily created the relationship and thus has permitted the third party to enter the zone of privacy between her and her child. K.A.F., 96 A.3d at 982-83 . The Court nonetheless stated that, in so holding, it was “not discount[ing] the importance of F.D.’s ‘consent’, or lack thereof[.]” Id. at 983 . Referring to F.D.’s consent, the Court stated that “[i]t may be used by a trial court, in an appropriate context, as one factor among many in determining whether a third party has established that he or she is a psychological parent of a child, and, if so, whether the best interests of the child warrant some form of custody or visitation.” Id.

(cleaned up). The Court noted “that in most cases, the longer and more established the parental role of a third party has become, the lack of - 48 - consent by one legal parent would diminish in analytical significance.” Id.20 Analysis After careful review of the matter, 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, where there are two legal (biological or adoptive) parents, a prospective de facto parent must demonstrate that both legal