Janice M. v. Margaret K.

MURPHY, C.J. In this appeal from the Circuit Court for Baltimore County, 1 we (1) reaffirm our holding that “a non-biological, non-adoptive parent, ... [who] is a de facto parent, ... is not required to show unfitness of the biological parent or exceptional circumstances ... [to be] entitled to visitation.” S.F. v. M.D., 132 Md.App. 99, 112 , 751 A.2d 9 (2000); and (2) hold that the “fit parenVexceptional circumstances” standard applies to a custody dispute between the child’s “legal” (i.e., natural and/or adoptive) parent and a “third party” found to be the child’s de facto parent. Factual Background On February 5, 2005, in the Circuit Court for Baltimore County, appellee/eross-appellant Margaret K. filed a verified COMPLAINT FOR CUSTODY AND OTHER RELIEF that included the following assertions: 3. The parties [Margaret K. and appellant/cross-appellee Janice M.] are not and have never been married to each other. 4. One child was adopted as a result of the parties’ relationship, namely: Maya [M.] (hereafter “Maya”), born on January 8, 1999 and adopted from India by [Janice M.] in 2000.

Maya is in the present care and custody of [Janice M.]. 6. The parties entered into a committed domestic relationship in 1987 and continued to reside together until the Fall of 2004. ⁵³¹ 9. [Margaret K.] participated in the adoption process to the extent she was able to but was limited in some respects because of the international laws related to children being adopted by gay parents. 10. [Margaret K.] was present when Maya arrived in the United States and has acted as her parent ever since. 11. Upon Maya’s arrival home, [Margaret K.] participated fully as Maya’s parent, she fed, bathed, played with and cared for Maya. 12. Prior to the parties’ separation, [Margaret K.] regularly cared for Maya, regularly picked her up from daycare/pre-school, and regularly spent time with her attending school field trips, choir practices and horse back riding practices and competitions, family vacations and other social functions. 13. [Margaret K] has provided for Maya’s needs including purchasing essential baby and children’s products, food, toys and providing financial support for [Janice M.] to purchase necessities for Maya. 14.

Since the separation [Janice M.] has significantly, arbitrarily and unreasonably limited [Margaret K.] in her ability to participate in activities with Maya.... 16. On or about January 18th [of 2005, Janice M.] left several threatening phone messages on [Margaret K.’s] answering machine threatening to never allow her to see Maya again. [Janice M.] has placed Maya in the middle of this dispute and has not acted in Maya’s best interest.... 18. [Margaret] was listed as Maya’s parent when she began daycare, however, [Janice] listed [Margaret] as Maya’s “godparent” when Maya entered kindergarten this past fall. ⁵³² 20. [Margaret] and Maya have a parent-child bond that is being adversely affected by [Janice’s] actions. 21. [Janice] consented to the relationship between Maya and [Margaret]. 22. [Janice] has consented to and fostered the relationship between Maya and [Margaret]. 26. [Margaret] is Maya’s de facto parent. 27. It is in Maya’s best interest that custody of her be granted to [Margaret]. 29. It is in Maya’s best interest that [Margaret] have an established schedule of visitation with her.

On April 26, 2005, Margaret filed a VERIFIED EMERGENCY MOTION FOR VISITATION WITH MINOR CHILD that included the following assertions: 1. The parties in this action were in a romantic relationship for 17 years during which [Janice] adopted their daughter, Maya, from India in 1999. Neither party to this action is Maya’s birth mother and, although [Janice] was the child’s adoptive parent for reasons related to international adoption laws and preferences, the parties have at all times raised Maya as co-parents. 10. [Janice] and Maya always referred to [Margaret] as Maya’s parent. Attached as Exhibit E and incorporated here by reference are a few cards from Maya and [Janice] regarding [Margaret’s] role as Maya’s parent.

These cards overwhelmingly establish through [Janice] herself, the parent-child bond and relationship between [Margaret] and Maya. Specifically, [Janice] states in one card, “I love you & I thank God every day you are my partner & Maya’s mom [emphasis in original].” Some cards are from Maya written by [Janice] where Maya refers to [Margaret] as her “bhati” and the cards are wishing her a happy mother’s day and are Mommy ⁵³³ birthday cards from Maya. In addition, [Janice] and Maya gave [Margaret] a Mother’s Day letter attached as part of this exhibit wherein [Janice] thanks [Margaret] for “taking on such a load of responsibility for Maya, the house and me” and for “all the emotional, physical and financial support you give freely.” Maya, through [Janice’s] writings, thanks [Margaret] for “fully focusing on my needs first-always” and for “picking me up and hugging me on demand.” 12. The unjustifiable denial of all access between Maya and [Margaret] is harmful to Maya.

It is not in Maya’s best interest to be denied all access to one of her mothers. 13. Maryland law allows de facto parents to obtain visitation in cases such as this one. To determine if a person is a de facto parent, the Maryland courts rely on the test set forth in S.F. v. M.D., 132 Md.App. 99 , 751 A.2d 9 (2000) which was derived from In re Custody of H.S.H.-K, 193 Wis.2d 649 , 533 N.W.2d 419 (1995), and V.C. v. M.J.B., 163 N.J. 200 , 748 A.2d 539 (2000). The test requires that “the legal parent must consent to and foster the relationship between the third party and the child; the third party must be have lived with the child; the third party must perform parental functions for the child to a significant degree; and most importantly, a parent-child bond must be forged.” S.F. v. M.D., 132 Md.App. at 111 , 751 A.2d 9 .

Margaret [K.] meets the requirements of a de facto parent and therefore is entitled to visitation with her de facto daughter. After the parties filed many more motions than were necessary, 2 the circuit court held an evidentiary hearing on the merits of Margaret’s requests for custody and visitation. At ⁵³⁴ the conclusion of that hearing, Margaret’s counsel delivered a closing argument that included the following assertions: The law does not give [Janice M.] in this situation the unfettered right to say somebody who lived with Maya every single day that she was in this country until August of 2004 suddenly is out of her life. Let’s not miss the fact that whether [Janice M.] is a biological parent, a natural parent, an adoptive parent, this is not a situation as in many of these cases where somebody has a child or adopts a child and then takes on a partner, a spouse, a domestic partner, and you have a bond that was created between the biological mother and the child.

This is a case where regardless of who legally is the mother, both of these parties cared for and were with Maya everyday from the moment she came to this country at the end of 1999 until 2004. Other than the decree of adoption and the unquestionable fact that [Janice M.] was the adoptive parent, Maya was with Janice [M.]-I didn’t butcher it until now. Maya was with Margaret [K.] every day of her life in this country until August of 2004. ... The only reason that Margaret [K.] has been deprived of the opportunity to have a relationship with her daughter is because she wasn’t on that decree of adoption.

You have basically a scorned partner after a 15, 16, 17 year relationship who says, I’m going to get back at my partner. The hell with my child! I don’t care that she had a relationship with my child and made her breakfast every morning. Something that was not refuted.

Made her dinner every evening. Picked her up from school every single day. My kid be damned! I’m hurt.

This woman does not have a relationship with my child. Basically, everything that the testimony showed was that this relationship was no different than any committed relationship; be that, two, same sex partners, two heterosexual unmarried partners or an old married couple. I don’t mean ⁵³⁵ to offend anybody, but in the sense of old married people together for 17 years. They were together for an extended period of time and whatever precursors there may have been to have a child together, to raise that child together, and the fact that this relationship broke up is not a reason why the relationship between Maya and Margaret [K.] should be severed.

From the conflicting evidence presented at the hearing, the circuit court was not clearly erroneous in accepting that argument. At the conclusion of Margaret’s case-in-chief, the circuit court granted Janice’s “motion for judgment” on the issue of custody, 3 stating: I find that whatever rights [Janice M.] has as a natural parent she would have as a adoptive parent. ... [I]n this case where you have a disputed custody case between a third-party and a biological parent, a natural parent of the child, the presumption is in favor of custody in the biological parent. This presumption exists. It can be rebutted by a finding of a lack of fitness on the biological parent’s part or the existence of extraordinary circumstances which are significantly detrimental to the child remaining in the custody of the biological parent or parents.

At this stage in the proceedings the court has to look at all evidence—all inferences of the evidence in the light most favorable to the non-moving party, who would be the plaintiff. Even looking at this in the light most favorable to the plaintiff, there’s no evidence as to lack of fitness on the part of the defendant. So that prong is not satisfied. ⁵³⁶ ... Karen P. v. Christopher J.B. at 163 Md.App. 250 , 878 A.2d 646 [ (2005)], I think that case can be distinguished from the facts of this case.

In that case the biological parent abruptly removed the child from the State of Maryland making it almost impossible for the person seeking custody, Christopher in that case, to communicate with them. The biological parent did not allow the child to see Christopher except infrequently with restrictions, including that visitation had to be in her presence. Basically, in that case the court found that the biological parent through a pattern of immaturity and selfishness in an effort to elevate her own personal interests took actions which actually rendered the child fatherless to break the bond totally between the father and the child. ... I don’t see where the facts of this case rise to the level of extraordinary, exceptional or compelling circumstances or even close.

So I’m going to grant the motion as to custody, and we’ll proceed on the visitation issues. At the conclusion of all the evidence, the circuit court delivered an on-the-record opinion that included the following findings and conclusions: Under the case of S.F. v. M.D.[, 132 Md.App. 99 , 751 A.2d 9 (2000)], since we’re dealing strictly with visitation right now, having already dismissed the issue of custody at the end of [Margaret K.’s] case, I find that [Margaret K.] is a de facto parent under that case. The four factors are met. The first one being, did the legal parent consent to and foster the relationship between the third-party and the child?

Clearly, I believe [Janice M.] did do that. There’s no question that the second prong is met. The third-party must have lived with the child. [Margaret K.] lived with the child for about three and a half years I believe it was. The third factor, the third party must perform parental functions for the child to a significant degree.

I think that’s ⁵³⁷ very clear from all the testimony. Plus, it’s clear from a lot of exhibits, the cards and the letters—I mean, the e-mails and so forth. I don’t think it’s much in dispute, or, if it’s in dispute, Pm finding that [Margaret K.] did perform parental functions for the child to a significant degree. And then the fourth factor, which the case says is the most important, is there a parent-child bond that had