Kpetigo v. Kpetigo

Panel: Nazarian, Friedman, Fader, JJ. Nazarian, J. ⁵⁶⁵ Parenthood is not an object of appetite or even desire. It is an object of will. There is no appetite for parenthood; ⁹³² there is only a purpose or intention of parenthood. 1 As society evolves in its recognition of relationships and families not formed purely by biology, so too must the law.

Hale Kpetigo ("Father") asks us to reverse the judgment of the Circuit Court for Montgomery County finding his ex-wife, Rebecca MacVittie Kpetigo ("Parent"), a de facto parent-a status not recognized by the Court of Appeals until Conover v. Conover , 450 Md. 51 , 146 A.3d 433 (2016) -of F, his son from a prior relationship, and granting her visitation with him. Father also asks us to decrease the child support the court ordered him to pay Parent for the care of their son, L, and to revoke the tie-breaking authority to Parent as part of their joint legal custody of L. We reject Father's argument that Conover recognized de facto parenthood only for same-sex married couples, and we affirm the judgment except as to the child support order. We remand for the limited purpose of re-calculating child support using Parent's up-to-date income or for the circuit court to explain its rationale for using the older figure. I. BACKGROUND While they were married, Parent and Father parented two young boys.

L is their biological child and was born during the marriage. F is Father's son from a previous relationship. F was born in France and his mother was a resident of the Ivory ⁵⁶⁶ Coast; she was named as a party in this action, but never appeared and has not participated. From the time he was approximately four months old, F visited Father in the United States.

At that point, Father was not yet a U.S. citizen, but he lived here during the time he dated, and then married, Parent. Whenever F visited, both Father and Parent cared for him. They married in 2009, when F was approximately three years old; F lived practically full time with them by that point. Father and F both obtained U.S. citizenship through Parent.

After their marriage, Parent expressed interest in adopting F, but Father was reluctant to risk disrupting the relationship between F and his mother. Even so, as the circuit court observed in its memorandum opinion and order, Parent "cared for [F] as if he were her own child" and was involved in all aspects of his life: [Parent] picked him up and dropped him off at school, play dates, doctor appointments, and extracurricular activities .... [She] packed his lunches, went to parent-teacher conferences, and coordinated his education, daycare, and babysitters.... [S]he took time off and altered her work and school schedule to be with [F] as needed. With the help of her extended family, [Parent] financially supported [F]. As a result, [F] has significant relationships with many members of [Parent]'s family. [F] regularly vacationed in Cape Cod with [Parent]'s parents and established close relationships with [Parent]'s siblings, whom he calls Auntie and Uncle, and their children whom he considers his cousins.

L was born in 2013. According to testimony at trial, L and F had a close relationship, and the couple made no distinctions about who was whose biological child. In 2014, F was abducted by his mother during a trip to visit her in Africa. Both Parent and Father worked tirelessly to regain custody-both made calls to the FBI, Congressmen, local and foreign embassies, and both made personal visits to the mother's house in Africa.

F was returned after sixty-two days, and Father gained full physical and legal custody; a ^{567 933} warrant was issued for the mother's arrest. F's mother visited once in late 2015, but she has not been in the United States to see him since the warrant was issued. She does call and video chat with him. Parent and Father separated in December 2015.

Until then, F had resided full-time with Father and Parent. Although both F and L lived with Parent at first, F eventually moved to live with Father. Even after they separated, Parent continued to visit F until Father restricted her access to him. All told, F lived full-time with both for at least six-and-a-half years by the time he turned 11.

Upon separating, Father and Parent agreed to share custody of L using a 2/2/5/5 custody schedule. 2 Additionally, Father agreed to allow F to have visitation with Parent. At first, Parent had free access to F and saw him almost every day, but shortly thereafter Father restricted her access. Nevertheless, Parent purchased a home near Father's to minimize disruptions to the boys' lives. In March 2016, Parent and Father entered into a Voluntary Separation and Marital Settlement Agreement (the "Agreement") that formalized the arrangements they had been following.

The Agreement confirmed that they shared joint legal and physical custody of L. Father agreed to pay Parent $300 per month for L's care. But the Agreement did not address F, or Parent's right to visitation with F, because, according to Parent, Father "was holding the separation agreement over [her] head basically saying that [she] c[ould] see [F] once [they] figure out the written stuff ...." Parent testified that Father "indicated that he wouldn't negotiate [F] until [they] had signed the settlement agreement." On October, 13, 2016, Parent filed for a limited divorce. She amended her complaint (the "Complaint") to seek an absolute divorce, enforcement of the Agreement, child support, tie-breaking ⁵⁶⁸ authority for matters pertaining to L, and visitation with F. Trial was held in October 2017, and on December 7, 2017, the trial court issued an order granting Parent $1,057 per month of child support for the care of L and joint legal custody of L, with tie-breaking authority for Parent. The court also found that Parent qualified as F's de facto parent under the factors set forth in Conover v. Conover , 450 Md. 51 , 74, 146 A.3d 433 (2016), that it was in F's best interests to maintain his relationship with Parent, and that Parent was entitled to visitation with F. Father filed a timely appeal.

We include additional facts below as necessary.

II

DISCUSSION A. The Circuit Court Correctly Applied The Standard For De Facto Parenthood. First , Father challenges the circuit court's decision finding Parent a de facto parent of F and, after finding as well that continuing F's relationship with Parent was in F's best interests, ordering visitation. He quarrels less with the visitation order itself-he consented to visitation both before trial and during his trial testimony-than with the court's analytical path. He argues that the court erred in analyzing Parent's request for visitation using the de facto parenthood standard articulated in Conover rather than treating Parent as a third party, which would have required the court to find him unfit or that exceptional circumstances applied.

Conover , he says, is limited to same-sex married ⁹³⁴ couples, and he's right that Conover itself involved a same-sex divorce. But nothing in the principles underlying the Conover decision or de facto parenthood writ large limits de facto parenthood to the same-sex context. The circuit court applied the right standard and applied it correctly. We review visitation and custody orders for abuse of discretion.

Walter v. Gunter , 367 Md. 386 , 391-92, 788 A.2d 609 (2002). "There is an abuse of discretion where no reasonable person would take the view adopted by the [trial] court, or when the court acts without reference to any guiding rules ⁵⁶⁹ or principles." In re Adoption/Guardianship No. 3598 , 347 Md. 295 , 312, 701 A.2d 110 (1997) (cleaned up). If, however, the order involves an interpretation and application of statutory or case law, we review the trial court's conclusions de novo , Walter , 367 Md. at 391 -92 , 788 A.2d 609 , and Father's challenge here falls into this latter category. Generally, step-parents who have neither adopted a child nor been declared his guardian have no parental rights or obligations that survive divorce.

Bledsoe v. Bledsoe , 294 Md. 183 , 448 A.2d 353 (1982) (duty of child support does not extend to step-parent); see also Brown v. Brown , 287 Md. 273 , 412 A.2d 396 (1980) ; Rand v. Rand , 280 Md. 508 , 374 A.2d 900 (1977) ; Blades v. Szatai , 151 Md. 644 , 135 A. 841 (1927) ; Alvey v. Hartwig , 106 Md. 254 , 67 A. 132 (1907) ; Greenwood v. Greenwood , 28 Md. 369 (1868) ; see also 1 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 447 (Christian ed., Phila. 1854) ("[T]he duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation laid on them not only by nature herself, but by their own proper act, in bringing them into the world: ... By begetting them, therefore, they have entered into a voluntary obligation to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved."). Instead, step-parents previously have stood in the same shoes as other non-parental third parties. Before it could order custody or visitation to a step-parent, a court historically had to find first that the child's biological or adoptive parents were unfit or that exceptional circumstances existed, and then that custody or visitation serves the best interests of the child.

See Ross v. Hoffman , 280 Md. 172 , 178-79, 372 A.2d 582 (1977) ("When the dispute is between a biological parent and a third party, it is presumed that the child's best interest is subserved by custody in the parent. That presumption is overcome and such custody will be denied if (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child."); see also ⁵⁷⁰ Koshko v. Haining , 398 Md. 404 , 419, 921 A.2d 171 (2007). In recent years, however, courts across the country have recognized as de facto parents a narrow class of third parties who have a special relationship with a child. Stated generally, a de facto parent is a non-related adult "who claims custody or visitation rights based upon the party's relationship, in fact, with a non-biological, non-adopted child." 3 Janice M. v. Margaret K. , 404 Md. 661 , 680-81, 948 A.2d 73 (2008), overruled by Conover , 450 Md. at 66 , 146 A.3d 433 .

Maryland has moved carefully toward recognizing de facto parenthood. Our ⁹³⁵ Court did so initially in S.F. v. M.D. , 132 Md. App. 99 , 111-12, 751 A.2d 9 (2000), overruled by Janice M. , 404 Md. at 685 , 948 A.2d 73 , and adopted a four-part test articulated by the Wisconsin Supreme Court in In re Custody of H.S.H.-K , 193 Wis.2d 649 , 533 N.W.2d 419 (1995). The Wisconsin court's test required a putative de facto parent to prove a parent-caliber relationship with the child that had formed with a biological or adoptive parent's consent and that demonstrated a direct and tangible commitment to parenting him: (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. ⁵⁷¹ In re Custody of H.S.H.-K , 193 Wis.2d at 694 -95 , 533 N.W.2d 419 . When first faced with the question in Janice M. v. Margaret K. , 404 Md. 661 , 682-85, 948 A.2d 73 (2008), however, the Court of Appeals declined to recognize " de facto parent status [as] a [ ] legal status in Maryland," declined at that point "to distinguish de facto parents from other third parties," and maintained the requirement that third parties seeking custody or visitation must show the biological parent was unfit or that extraordinary circumstances existed.

Id. at 684-85 , 948 A.2d 73 . The Court found de facto parenthood inconsistent with McDermott v. Dougherty , 385 Md. 320 , 353, 869 A.2d 751 (2005) and Koshko , 398 Md. at 437 -38 , 921 A.2d 171 , two cases that involved grandparents petitioning for visitation and who, in both cases, were "pure third part[ies]," McDermott , 385 Md. at 356 -57 , 869 A.2d 751 , distinct from the psychological or de facto parents recognized in other jurisdictions. Janice M. , 404 Md. at 685 , 948 A.2d 73 ; see also id. at 706 , 948 A.2d 73 (Raker, J., dissenting) ( [ McDermott and Koshko ] "dealt with the rights of pure third parties, and not those of de facto parents."); Koshko , 398 Md. at 443 , 921 A.2d 171 ("Now that we conclusively have stated in McDermott that parental unfitness and exceptional circumstances shall be threshold considerations in third party custody determinations, it is appropriate that we now also apply those considerations in third party visitation disputes."). Although the case arose in the context of a same-sex couple, the putative de facto parent in Janice M . didn't argue for a test specific to same-sex couples, 404 Md. at 686 , 948 A.2d 73 , and the Court seemed concerned that de facto parenthood would be difficult to limit.

Id. at 685 , 948 A.2d 73 ("Even were we to recognize some form of de facto parenthood, the real question in the case sub judice will remain, whether, in a custody or visitation dispute, a third party non-biological, non-adoptive parent, who satisfies the test necessary to show de facto parenthood should be treated differently from other third parties. We have not been persuaded that they should be."). As a result, all non-parents seeking custody or visitation were required to prove that the ⁵⁷² parents were unfit or that exceptional circumstances compelled a court-ordered override of the parents' wishes. In Conover , however, the Court of Appeals recognized de facto parenthood and adopted the Wisconsin test.

The Court grounded its decision in the fact that "the precedent was 'clearly wrong and contrary to established principles,' " "the passage of time and evolving events have rendered ⁹³⁶ Janice M. obsolete," and that "a majority of states, either by judicial decision or statute, now recognize de facto parent status or a similar concept." Conover , 450 Md. at 77 -78 , 146 A.3d 433 . Like Janice M ., Conover involved a same-sex couple who "discussed having a child and agreed that [one] would be artificially inseminated from an anonymous donor" whose features were similar to the other. 450 Md. at 55 , 146 A.3d 433 . They married in the District of Columbia when the child was six months old and divorced two years later. The non-biological spouse sought visitation, which the biological parent opposed.

Id. The circuit court denied visitation, finding the non-biological parent spouse a third party who had failed to prove unfitness or other exceptional circumstances. We affirmed the circuit court's decision because Janice M . compelled us to: A non-biological, non-adoptive spouse who meets one, two or even three tests under ET § 1-208(b) is still a "third party" for child access purposes. Under Janice M. , he or she is not a "legal parent" ....

He or she must still show exceptional circumstances to obtain access to a child over the objection of a fit biological parent and to overcome the natural parent's due process rights. Conover v. Conover , 224 Md. App. 366 , 380, 120 A.3d 874 (2015), rev'd , 450 Md. 51 , 146 A.3d 433 (2016). And then the Court of Appeals reversed. Conover v. Conover , 450 Md. 51 , 146 A.3d 433 (2016).

The Court focused first on the ongoing viability of Janice M . in light of intervening developments (primarily marriage equality legislation), then considered whether stare decisis considerations counseled in favor of affirming that decision. Its decision that Janice M . no longer was viable was not grounded solely in equality concerns, ⁵⁷³ though. The premise was that "[t]he primary goal of access determinations in Maryland is to serve the best interests of the child," Conover , 450 Md. at 60 , 146 A.3d 433 (citing Taylor v. Taylor , 306 Md. 290 , 303, 508 A.2d 964 (1986) ), balanced against the constitutional rights of biological parents to make decisions about the care, custody, and control of their children. See Meyer v. Nebraska , 262 U.S. 390 , 399-400, 43 S.Ct. 625 , 67 L.Ed. 1042 (1923) ; see also Pierce v. Society of Sisters , 268 U.S. 510 , 534-35, 45 S.Ct. 571 , 69 L.Ed. 1070 (1925).

And this time, the Court held that the Wisconsin de facto parenthood standard balanced those rights appropriately. A putative de facto parent transcends third party status when she can establish, first and foremost, "that the biological or adoptive parent consented to and fostered the petitioner's formation and establishment of a parent-like relationship with the child." Conover , 450 Md. at 74 , 146 A.3d 433 ( citing H.S.H.-K. , 193 Wis.2d at 694 -95 , 533 N.W.2d 419 ). Not just any relationship will work: the putative de facto parent and the child must have lived together in the same household, with the de facto parent taking on real parenting responsibilities over a sustained period of time. Once a biological parent allows a relationship that can meet those stringent criteria, he "does not have the 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 433 .

Put another way, a parent who made a conscious parenting decision to foster a parent-caliber relationship between a third party and his child can't sever that tie unilaterally-at least not when severing it harms the child's best interests. Or, put yet another way, a parent's consent to a prior and intentional parental relationship counterbalances (or supersedes) his otherwise preemptive right to determine whether and to what extent another adult is involved in his child's life, ⁹³⁷ and turns the court's focus to the best interests of the child. 4 ⁵⁷⁴ Father urges us to read Conover narrowly and hold that de facto parent status can apply only to the non-biological parent in a same-sex couple. But nothing in Conover suggests that de facto parenthood is available only to same-sex couples. Had it chosen to, the Court of Appeals could have overruled Janice M . more narrowly or limited de facto parenthood to divorcing same-sex spouses.

The Court could, for example, have held simply that the General Assembly's intervening decision to recognize same-sex marriage undermined Janice M .'s holding as to same-sex married couples, and therefore that they should be allowed the same opportunity to seek visitation as opposite-sex spouses. 5 It didn't. Instead, 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. This approach follows the analytical path of other states that recognized de facto parenthood long before the general recognition of same-sex marriage. Indeed, the Wisconsin case articulating the de facto parenthood standard the Court of Appeals adopted in Conover , ⁵⁷⁵ In re Custody of H.S.H.-K. , 193 Wis.2d 649 , 533 N.W.2d 419 (1995), was decided twenty-three years ago, before any U.S. state recognized same-sex marriages.

And over the years, all sorts of people have qualified as de facto parents: grandparents, 6 opposite-sex step-parents, 7 ⁹³⁸ boyfriends and girlfriends, 8 aunts and uncles, 9 and even, in at least one instance, a neighbor. 10 What matters, elsewhere and now here, is the relationship between the putative de facto parent and the child and the child's best interests, not the relationship's title or consanguinity. The trial court read and applied Conover correctly. At trial, Father stipulated that Parent satisfied the first two factors of the Conover test, i.e ., that Father consented to her parent-like relationship with F and that she and F had lived ⁵⁷⁶ together in the same household. This left the trial court only to determine whether Parent had assumed obligations of parenthood and whether she and F had a parent-child bond.

Parent met this burden easily. The trial testimony of both Father and Parent yielded ample evidence that Parent had "assumed [the] obligations of parenthood by taking significant responsibility for [F]'s care, education and development, including contributing towards [F]'s support, without expectation of financial compensation." H.S.H.-K , 193 Wis.2d at 695 , 533 N.W.2d 419 . When asked to describe her involvement with F, Parent did not distinguish between L, her biological child, and F. She also testified about how, even when she and Father were only dating, she had stayed awake to care for F throughout the night while she and F both had fevers. Her role in caring for F encompassed all aspects of parenthood: I gave him baths at night.

I changed the sheets in the middle of the night when he peed the bed. I did diaper changes. I did bottle changes. I took him to dentist appointments, pediatric appointments.

I did every parent/teacher that I could attend with [Father] whether he wasn't there. I arranged play dates. There wasn't one aspect of that child's life, other than the conversations with his biological mom and that part because I don't speak French, that I didn't, I wasn't involved in and for the most part I did, [F] would request me for bedtimes. I mean for the most part I did both children's bedtimes 95 percent of the time.

At the time, when [F] was younger [Father] would travel a lot. I would be the sole provider of, for [F]. I picked his daycares. * * * I did sign him up for camps, swim lessons. I taught him how to swim when he was an infant.

I know I'm kind of jumping all over in the time frame but when he was an infant I taught him how to blow raspberries, you know, when they are babies. To me there was no separation between the kids, [L] and [F]. * * * ⁵⁷⁷ I was in law school for three years from 2008 to 2011 so I had more flexibility in terms of daytime hours so I would do a lot in terms of picking up and dropping off [F] at daycares and then I would bring him to school. I cooked dinners. I packed lunches.

I think I always packed his lunch.... I was the person that did everything with [F] unless I wasn't available would be the best way to put it. * * * ⁹³⁹ As I said for the preschool period I helped pick the daycares and picked some of them myself. I brought him to the first day of preschool by myself. I picked babysitters and nannies and I picked camps and paid for camps up until [Father] eventually wanted him to go to the French school but I participated in that decision....

And ultimately [F] before we separated transferred back to the American system and that was with my demand actually to [Father] that he go back because I was very involved with [F]'s learning how to read and write and he was struggling with reading and we had had a lot of parent/teacher conferences that I attended where the French system just wasn't adequately helping him learn to read in 4th grade. * * * At that point in time I knew that [Father] and I were likely separating and [F] couldn't read and I didn't think the, couldn't read well and the French system just was not coping with his, his delayed reading. They weren't providing adequate, they have some extra classes but I think the language, the dual language was too difficult and so I felt that it was in [F]'s best interest to go into the American system .... * * * I vividly remember taking [F] to one of his first toddler appointments in the U.S. by myself, fighting with the doctor over which vaccines to gives. And then after that we didn't, I didn't like that practice and so I talked to one of [Father]'s ⁵⁷⁸ friends and found a different practice and both of our kids to this day still use that new pediatrician. And I think for the majority of [F]'s visits to doctors I was there.

As I said earlier, he was very clingy with me so to the extent that I