Mark R. Martin v. Marylou E. MacMahan

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 62
Docket: Sag-21-18
Argued: July 13, 2021
Decided: December 14, 2021

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

MARK R. MARTIN

v.

MARYLOU E. MACMAHAN

HORTON, J.

[¶1] Mark R. Martin appeals from judgments entered by the District

Court (West Bath, Raimondi, J.) establishing Dawn and James Ostrander as

de facto parents of two biological children of Martin and Marylou E. MacMahan;

allocating parental rights and responsibilities and child support among Martin,

MacMahan, and the Ostranders; and amending an existing divorce judgment

between Martin and MacMahan.1 Martin argues that that the court misapplied

the legal standards governing de facto parentage and made findings that were

not supported by evidence in the record, including by adopting a magistrate’s

findings in an interim order. We affirm the judgment establishing de facto

parentage, parental rights and responsibilities, and child support, but we vacate

1 We consolidated Martin’s appeals under the caption for the divorce matter.
2

the judgment amending the divorce judgment because it is inconsistent with

the judgment establishing parental rights and responsibilities, and we remand

so that the inconsistency can be corrected.

I. BACKGROUND

[¶2] The following facts and procedure are drawn from the procedural

record and findings made by the court that are supported by evidence admitted

at the final hearing.2 See Kilborn v. Carey, 2016 ME 78, ¶¶ 3, 16, 140 A.3d 461.

Martin and MacMahan are the biological parents of twins born in March 2014.

When the children were born, Martin and MacMahan lived in Arrowsic and did

not have a vehicle. Dawn Ostrander, MacMahan’s lifelong friend, drove

MacMahan to prenatal care appointments, drove the children home from the

hospital after they were born, and drove MacMahan and the children to

subsequent checkups. The Ostranders helped care for the children and

supplied the necessities of care, such as diapers, wipes, formula, and clothing.

[¶3] When the children were about four months old, Martin moved the

family to Kansas, believing—incorrectly—that he would have housing and

employment there. In Kansas, after staying a week with Martin’s mother and

2 The facts recited here do not include those that the court adopted from the magistrate’s interim

order without corroborative evidentiary support from the final hearing. See infra ¶ 20.
 3

grandmother, the family moved to a motel and then started living out of a car.

While they were still in the motel, Martin began shoplifting DVDs to make

money. He was arrested in December 2014 and spent about a week in jail. After

his release from jail, his criminal case was resolved and he was placed on

probation until October 2015. He has generally remained in Kansas since then.

[¶4] When Martin went to jail, MacMahan and the children had no

money, housing, or means of transportation. Desperate, MacMahan called

Dawn Ostrander, who drove to Kansas, brought MacMahan and the children

back to Maine, and helped MacMahan find a place to live. The Ostranders

resumed providing MacMahan with the necessities of care for the children,

including diapers, wipes, formula, clothing, bassinets, and car seats.

[¶5] At first, the children stayed with the Ostranders on weekends and

for some overnights during the week. By April 2016, the children were living

primarily with the Ostranders, who provided for all aspects of their care.

Martin did not provide any support for the children during this time. On several

occasions between 2015 and early 2017, MacMahan, who was homeless at

times, told Martin that she needed help and asked him to come get the children.

He responded that he could not. In April 2016, when the children had just

turned two years old, the Ostranders began providing full-time care for them at
4

the request of a community organization concerned about MacMahan’s lack of

stable housing, and, with limited exceptions, the children have resided with the

Ostranders full-time ever since. Dawn Ostrander has enrolled both children in

speech therapy and has transported them to those sessions for several years.

[¶6] In June 2017, Martin came to Maine, believing that he had an

agreement with MacMahan that he would take custody of the children for some

period of time. When he arrived, MacMahan did not permit him to see the

children. Martin initiated a divorce action against MacMahan and then

returned to Kansas. Martin returned to Maine for a visit around Christmas in

2017; it was the first time he had seen the children since being arrested in

Kansas in December 2014.

[¶7] In an agreed-upon divorce judgment issued in January 2018, a

Family Law Magistrate (Kidman, M.) awarded shared parental rights to

MacMahan and Martin, granted primary residence to MacMahan, and set a

contact schedule that included a two-month visit with Martin in Kansas during

the summer of 2018. Meanwhile, although the children were spending some

weekends at MacMahan’s home, they were otherwise living with the

Ostranders. In April 2018, the Ostranders obtained a protection from abuse
 5

order against MacMahan on behalf of the children.3 When Martin found out

about the protection order,4 he contacted the Ostranders, gave them temporary

legal authority over the children, and told them he would come to get the

children in June. Martin then moved to modify the divorce judgment, seeking

primary residence and sole parental rights.

[¶8] In June 2018, after the Ostranders filed petitions seeking

guardianship of the children, a Family Law Magistrate (Adamson, M.) held a

combined interim evidentiary hearing on Martin’s motion to modify the divorce

judgment and the Ostranders’ guardianship petitions. The magistrate then

issued an interim order in which she made extensive findings and set forth

detailed arrangements for the children’s visit with Martin in Kansas, including

that they were “to be returned to [Maine] according to the [divorce] [j]udgment

. . . on August 17, 2018”5 and that they were to be allowed to have contact with

the Ostranders while they were with Martin. The magistrate declined to

3 The protection order, which prohibited MacMahan from having any contact with the children,
was based on the children’s report to the Ostranders of inappropriate behavior toward them by a
member of MacMahan’s household. The protection order was dismissed in May 2019 on the
Ostranders’ motion after MacMahan had ended her relationship with the person in question.
4 Martin later testified that the father of MacMahan’s other children called him in April 2018 and
told him about the protection order and that this was when he first became aware that the children
had been living with the Ostranders.

5According to the divorce judgment, Martin was to provide for the children’s transportation to
Kansas; MacMahan was to provide for their transportation back to Maine.
6

otherwise modify the divorce judgment and issued no decision regarding the

Ostranders’ guardianship petitions.6

[¶9] Martin did not return the children to Maine in August 2018. He also

did not comply with the interim order’s requirement that he allow the

Ostranders to have contact with the children three times per week. In late

October 2018, after the Ostranders notified the court that they had not been

allowed to speak with the children for eight days, the court (Dobson, J.) held a

hearing and then authorized the Ostranders to pick up the children in Kansas

as soon as possible.

[¶10] The Ostranders drove to Kansas to pick up the children on

November 1, 2018; when they arrived, Martin told them they could not take the

children until noon the next day. They slept in their car that night before

returning to Maine with the children. The children have resided with the

Ostranders ever since.

[¶11] Martin saw the children for Christmas in 2018 and then for two

weeks in Kansas in the summer of 2019. He speaks with the children on the

6With respect to the guardianship petitions, however, the magistrate noted that “while [Martin]
may be capable of caring for the children during [the summer 2018] visit, a strong bond has
developed between the[] children and the [Ostranders], who have provided for their care for three
years. [The Ostranders] are the only caregivers [the children] have truly known. The . . . [children]
were delayed socially and developmentally when entering [the Ostranders’] care and have since
flourished and received medical and other therapeutic care. It would jeopardize the [children’s]
well-being to break this bond out of anger or spite.”
 7

phone and over video chat. A court order would have permitted a visit in

Kansas during the summer of 2020, but restrictions related to the COVID-19

pandemic made that difficult. Martin suggested, in the alternative, that he

would come to Maine for a week-long visit, but after planning to do so, he

canceled the arrangements.

[¶12] Since 2016, the Ostranders have received a total of $100 in

financial support from Martin and $85 in financial support from MacMahan,

and they have received no state or federal financial aid in caring for the

children. According to the children’s teachers, the children are doing well

socially and academically, and the Ostranders are active and concerned

caretakers. The teachers have not had any contact with either Martin or

MacMahan. Martin agreed, during his testimony, that he never reached out to

the children’s teachers or health care providers because he “relied on [the

Ostranders] to keep [him] up to date on those things” and because he was

“relying on them to [exercise] the parental responsibilities for [his] children.”

[¶13] After returning to Maine with the children in November 2018, the

Ostranders filed a complaint and affidavit seeking a determination of de facto

parentage, parental rights and responsibilities, and child support. With the

agreement of the parties, the court found in May 2019 that the Ostranders had
8

demonstrated standing to proceed with the de facto parentage action. See

19-A M.R.S. § 1891(2) (2021); see also, e.g., Libby v. Estabrook, 2020 ME 71,

¶¶ 13-14, 234 A.3d 197.

[¶14] The court (Raimondi, J.) held a final, consolidated hearing on the

Ostranders’ guardianship petitions, their de facto parentage complaint, and

Martin’s motion to modify the divorce judgment. Over the course of two days

in September 2020, it heard testimony from, among other people, Martin,

MacMahan, the Ostranders, and the guardian ad litem. The court then issued

an order addressing both the Ostranders’ parentage complaint and Martin’s

motion to modify the divorce judgment.7 The order incorporated extensive

findings, which the court set forth in a separate document. In the middle of a

section of that document titled “FACTUAL HISTORY,” the court referred to

findings expressed by the magistrate in the June 2018 interim order and stated:

“After consideration of the evidence presented to this court at the hearing in

this matter, the court adopts those findings.” The court then restated, verbatim,

many of the findings expressed in the June 2018 interim order.

[¶15] In another section of the court’s order titled “LEGAL ANALYSIS,”

the court made additional findings specifically related to the elements of the

7 The court dismissed the Ostranders’ guardianship petitions as moot.
 9

Ostranders’ de facto parentage claim, see 19-A M.R.S. § 1891(3) (2021), and

concluded that the Ostranders had met their burden to prove, by clear and

convincing evidence, that they are de facto parents of the children. Specifically,

the court made the following findings:

• The children have had regular contact with the Ostranders for their entire
lives and have resided primarily with the Ostranders since 2016, see
19-A M.R.S. § 1891(3)(A);

• The Ostranders have engaged in caretaking for the children since before
the children were born, consistently providing emotional, financial,
educational, and medical support for the children on a day-to-day basis,
see 19-A M.R.S. § 1891(3)(B);

• The Ostranders have provided the only stable parenting the children
have known, and the children are deeply bonded to them, see 19-A M.R.S.
§ 1891(3)(C);

• The Ostranders have accepted responsibility for the children without
expecting compensation, see 19-A M.R.S. § 1891(3)(D); and

• Remaining with the Ostranders is in the children’s best interests, see
19-A M.R.S. § 1891(3)(E).

The court also found that “MacMahan does not dispute that she fostered and

supported the relationship between the Ostranders and the children.” As to

Martin, the court found that he knew, by no later than April 2018, that the

children had been living with the Ostranders; that before then he either knew

or “turned a blind eye and chose not to know”; and that he had “abdicated his
10

financial and personal responsibility to care for the children and . . . continues

to do so.”

[¶16] Addressing parental rights and responsibilities, the court ordered,

inter alia, that the children’s primary residence would be with the Ostranders

and that parental rights would be shared among the Ostranders, Martin, and

MacMahan, with the Ostranders having final decision-making authority.

Accordingly, the court denied Martin’s motion to modify the divorce judgment,

declining to grant him sole parental rights and primary residence. Finally, the

court issued a child support order and amended some of the divorce judgment’s

provisions—including those for child support and for contact between Martin

and the children—to render the divorce judgment consistent with the

judgment setting forth parental rights and responsibilities and child support.8

[¶17] Without first moving for amended or additional findings, cf. M.R.

Civ. P. 52(b); Davis v. McGuire, 2018 ME 72, ¶ 2 n.2, 186 A.3d 837, Martin filed

this timely appeal. See 14 M.R.S. § 1901 (2021); M.R. App. P. 2B(c)(1).

The court made clear that its intent was to amend the divorce judgment to make it consistent
8

with the judgment establishing de facto parentage, parental rights and responsibilities, and child
support. But although the judgment establishing parental rights and responsibilities provides that
the children’s primary residence shall be with the Ostranders and awards specified rights of contact
to Martin and MacMahan, the court did not amend the divorce judgment’s conflicting provision that
the children’s primary residence shall be with MacMahan. We therefore vacate the amended divorce
judgment and remand the matter to enable the court to resolve the conflict. See infra ¶ 36.
 11

II. DISCUSSION

A. Adoption of Interim Findings

[¶18] Martin first argues that the court erred by incorporating findings

from the interim order into its final judgment. He relies primarily on 4 M.R.S.

§ 183(1)(E) (2021), which provides that “[i]nterim orders . . . are subject to

de novo review by a judge at the final hearing,” and M.R. Civ. P. 110A(b)(7),

which provides that “[a]n interim order does not constitute the law of the case,

and the issues may be decided de novo at the final hearing.” Although the

statute and rule both touch on the effect of a magistrate’s interim order, neither

governs the precise issue here, which is the proper treatment of specific

findings in an interim order by a court issuing a final judgment. Here, the court

held a two-day final hearing before adjudicating, in its final judgment, Martin’s

motion to modify the divorce judgment and the Ostranders’ parentage action.9

[¶19] Although the court stated that it was “adopt[ing]” the magistrate’s

findings, it also explained that it was doing so “[a]fter consideration of the

evidence presented to this court at the hearing in this matter.” On the record

before us, we are satisfied that the court viewed the evidence presented at the

final hearing as supporting the findings that the magistrate had made based on

9The magistrate had not addressed the Ostranders’ parentage petition at all; that petition was
not filed until after the magistrate issued the interim order.
12

the testimony presented at the interim hearing.10 Martin contends otherwise,

but he did not ask the trial court to clarify its statement, reconsider its findings,

or alter or amend its judgment. See Adoption by Jessica M., 2020 ME 118, ¶ 16,

239 A.3d 633 (“The appellant bears the burden of providing an adequate record

upon which the reviewing court can consider the arguments on appeal.”

(quotation marks omitted)); cf. M.R. Civ. P. 52(b); 59(e).

[¶20] We agree with Martin that one of the court’s findings was clearly

erroneous because there was no evidence admitted at the final hearing to

support the finding that a caseworker concluded that Martin had neglected the

children before the family moved to Kansas. Ultimately, however, the error was

harmless. Contrary to Martin’s suggestion, the vast majority of the “adopt[ed]”

findings were independently supported by competent evidence admitted at the

final hearing, including the crucial finding that, before April 2018, “if [Martin]

was unaware that the [children] were not in [MacMahan’s] direct care, it is

because he turned a blind eye to the dire situation here in Maine.” See infra

¶¶ 32-33. The court expressed that finding—along with the other findings

10 The Ostranders do not argue that the court could have adopted the interim findings pursuant

to M.R. Civ. P. 118(a)(2), which provides for review by the court of a magistrate’s final order or
judgment, or that the court could have taken judicial notice of the interim findings, see M.R.
Evid. 201(b); Adoption by Jessica M., 2020 ME 118, ¶ 14, 239 A.3d 633; In re Scott S., 2001 ME 114,
¶¶ 12-14, 775 A.2d 1144.
 13

central to its de facto parentage determination, see 19-A M.R.S. § 1891(3)—in a

separate portion of the judgment without reference to the stray, unsupported

finding concerning the caseworker’s observations. In the context of the court’s

entire order, it is highly probable that the erroneous finding did not affect

Martin’s substantial rights. See M.R. Civ. P. 61; In re Scott S., 2001 ME 114, ¶ 25,

775 A.2d 1144; see also Banks v. Leary, 2019 ME 89, ¶¶ 15, 18, 209 A.3d 109

(highlighting a “court’s limited reliance on” an erroneously admitted guardian

ad litem report to conclude that harmless error applied).

B. De Facto Parentage

[¶21] Martin argues that, because the trial court did not find that he

affirmatively fostered and supported the Ostranders’ de facto parent

relationship with the children, we would need to interpret the de facto

parentage statute unconstitutionally in order to uphold the trial court’s

determination that the Ostranders are the children’s de facto parents. The

statute provides, in relevant part, as follows:

3. Adjudication of de facto parent status. The court shall
adjudicate a person to be a de facto parent if the court finds by clear
and convincing evidence that the person has fully and completely
undertaken a permanent, unequivocal, committed and responsible
parental role in the child’s life. Such a finding requires a
determination by the court that:
14

A. The person has resided with the child for a significant
period of time;

B. The person has engaged in consistent caretaking of the
child;

C. A bonded and dependent relationship has been
established between the child and the person, the
relationship was fostered or supported by another parent of
the child and the person and the other parent have
understood, acknowledged or accepted that or behaved as
though the person is a parent of the child;

D. The person has accepted full and permanent
responsibilities as a parent of the child without expectation
of financial compensation; and

E. The continuing relationship between the person and the
child is in the best interest of the child.

19-A M.R.S. § 1891(3).

[¶22] Specifically, Martin’s argument focuses upon the required findings

that “the relationship was fostered or supported by another parent of the child”

and that “the person and the other parent have understood, acknowledged or

accepted that or behaved as though the person is a parent of the child,”

19-A M.R.S. § 1891(3)(C). Martin contends that for the statute to survive

constitutional scrutiny, the statutory references to “another parent” and “the

other parent” must be read to refer to each and every legal parent. Martin does

not challenge the court’s findings that the Ostranders proved the other
 15

elements of their de facto parentage claim, such as that they provided residence

and care and exercised parental responsibilities for the children, and we agree

that the record fully supports those findings.

[¶23] Martin’s argument raises a legal issue and a factual issue. First,

based on our case law explaining that a de facto parentage determination

implicates a legal parent’s fundamental right to control the care and custody of

his or her child, e.g., Pitts v. Moore, 2014 ME 59, ¶ 27, 90 A.3d 1169, Martin

argues that for the Ostranders to satisfy their burden under section 1891(3)(C),

the Ostranders needed to prove that he—a presumptively fit legal parent—

fostered or supported the children’s relationships with the Ostranders and

behaved as though the Ostranders were parents of the children, not just that

MacMahan did so. Second, he argues that the record contains insufficient proof

to support that finding.11

[¶24] Our task is thus to examine (1) whether, to avoid an

unconstitutional result, the statute must be read as Martin contends, and, if so,

(2) whether the court’s findings are supported by the evidence. We review the

11 Martin also argues, for the first time in his reply brief, that there was insufficient evidence to

support findings that MacMahan fostered or supported the relationship with the Ostranders and
behaved as though the Ostranders were parents of the children. Because Martin has not preserved
that argument, we need not address it, see, e.g., Bayview Loan Servicing v. Bartlett, 2014 ME 37, ¶ 24,
87 A.3d 741, but we note here that we are not persuaded.
16

court’s findings for clear error, Kilborn, 2016 ME 78, ¶ 16, 140 A.3d 461, and

we examine questions of constitutional law and statutory interpretation de

novo, In re D.P., 2013 ME 40, ¶ 6, 65 A.3d 1216. “If at all possible, we will

construe [a] statute to preserve its constitutionality.” Town of Baldwin v. Carter,

2002 ME 52, ¶ 9, 794 A.2d 62. “Thus, when there is a reasonable interpretation

of a statute that will satisfy constitutional requirements, we will adopt that

interpretation notwithstanding other possible interpretations of the statute

that could violate the Constitution.” Nader v. Me. Democratic Party, 2012 ME 57,

¶ 19, 41 A.3d 551 (citation omitted).

[¶25] As we have consistently recognized, efforts by persons other than

legal parents “to obtain parental rights through litigation, over the objections

of parents, implicate the parents’ fundamental right[s] to direct the upbringing

of their children.” Philbrook v. Theriault, 2008 ME 152, ¶ 17, 957 A.2d 74; see

Pitts, 2014 ME 59, ¶¶ 11-12, 17, 24, 27, 90 A.3d 1169; Rideout v. Riendeau,

2000 ME 198, ¶ 18, 761 A.2d 291 (“[T]he right to direct and control a child’s

upbringing is a ‘fundamental’ liberty interest protected by the Due Process

Clause.” (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000) (emphasis

omitted))). Because a court’s determination that a person is a de facto parent

constitutes a “substantial” “intrusion into a [legal] parent’s fundamental rights”
 17

that is “no less permanent than the termination of parental rights,” we apply

strict scrutiny to evaluate whether that interference impermissibly burdens the

rights at issue. Pitts, 2014 ME 59, ¶¶ 12, 17, 27, 90 A.3d 1169; see C.L. v. L.L.,

2015 ME 131, ¶ 22, 125 A.3d 350 (“The creation by a court of an additional,

legally recognized parental relationship with a child permanently alters the

relationships among the child and the other parents.”).

[¶26] When we decided Pitts v. Moore, we had previously recognized that

our courts could grant parental rights to a person other than a biological or

adoptive parent,12 but neither we nor the Legislature had acted to establish

precise standards for such a determination that would account for the exacting

scrutiny required. See Pitts, 2014 ME 59, ¶¶ 19, 24, 90 A.3d 1169. In a plurality

opinion in Pitts, we held that a person seeking de facto parentage status must

prove by clear and convincing evidence “(1) [that] he or she has undertaken a

permanent, unequivocal, committed, and responsible parental role in the

child’s life, and (2) that there are exceptional circumstances sufficient to allow

the court to interfere with the legal or adoptive parent’s rights.” Id. ¶ 27

(quotation marks and citations omitted).

12 See Stitham v. Henderson, 2001 ME 52, 768 A.2d 598; C.E.W. v. D.E.W., 2004 ME 43,
845 A.2d 1146; Young v. Young, 2004 ME 44, 845 A.2d 1144; Leonard v. Boardman, 2004 ME 108,
854 A.2d 869; Philbrook v. Theriault, 2008 ME 152, 957 A.2d 74.
18

[¶27] Relevant to this case, we explained the first element in more detail,

stating,

We define a “permanent, unequivocal, committed, and responsible
parental role” by looking to the elements of de facto parenthood
employed in Massachusetts: “A de facto parent is one who has no
biological relation to the child [as a parent], but has participated in
the child’s life as a member of the child’s family. The de facto parent
resides with the child and, with the consent and encouragement of
the legal parent, performs a share of caretaking functions . . . .”

Id. ¶ 28 (quoting E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999)). “This

language,” we stated, “gives litigants and courts a list of the necessary elements

for determining whether an individual’s relationship with a child is permanent,

unequivocal, committed, and responsible.” Id. We noted that “the test accounts

for the intent of the legal parent and the putative de facto parent to co-parent,

as measured before the dissolution of their relationship, or the intent of the

legal parent that the non-parent act as parent in place of the legal parent.” Id.

In Kilborn, 2016 ME 78, ¶ 18, 140 A.3d 461, we reiterated that this element “can

be met by demonstrating that . . . a legal parent intended for the nonparent to

act in place of the legal parent.” We also made clear that proof that the legal

parent “implicitly, if not explicitly, consented to and encouraged” the putative

de facto parent’s parental role can suffice. Id. ¶¶ 19-21 (quotation marks

omitted).
 19

[¶28] In July 2016, when the Legislature enacted the Maine Parentage

Act, it codified these common law standards. P.L. 2015, ch. 296, § A-1 (effective

July 1, 2016); Libby, 2020 ME 71, ¶ 16 n.3, 234 A.3d 197 (noting that 19-A M.R.S.

§ 1891 “codifie[d] the common law principle that a person cannot become a

de facto parent unless the child’s legal parent recognizes the person as a

parent); Kilborn, 2016 ME 78, ¶ 1 n.1, 140 A.3d 461 (explaining that

section 1891 codified the first element of the two-part test set forth in Pitts);

L.D. 1017, Enacted Law Summary (127th Legis. 2015) (stating that the statute

“codifie[d] the de facto parent doctrine, now firmly established by case law”).

Thus, the statute provides that the court must adjudicate a person a de facto

parent if it finds by clear and convincing evidence “that the person has fully and

completely undertaken a permanent, unequivocal, committed and responsible

parental role in the child’s life,” and it further provides that “[s]uch a finding

requires” five enumerated sub-findings,13 one of which contains the language

at issue here: that

[a] bonded and dependent relationship has been established
between the child and the person, the relationship was fostered or
supported by another parent of the child and the person and the

13 These are what we described as “the necessary elements” for determining whether a putative

de facto parent “has undertaken a permanent, unequivocal, committed, and responsible parental role
in the child’s life,” which is necessary to protect a legal parent’s fundamental right to control the
upbringing of his or her children. Pitts v. Moore, 2014 ME 59, ¶¶ 27-28, 90 A.3d 1169 (quotation
marks omitted).
20

other parent have understood, acknowledged or accepted that or
behaved as though the person is a parent of the child.

19-A M.R.S. § 1891(3)(C) (emphasis added).

[¶29] In light of this precedent, we conclude that a putative de facto

parent must prove the elements of section 1891(3)(C) as to a legal parent who

appears14 and objects to the de facto parentage petition, as Martin has.15 See

Davis, 2018 ME 72, ¶ 20, 186 A.3d 837 (“Given the legislative history of the

[Maine Parentage Act], we use the common law that the [Act] later attempted

to codify as one way to understand the Legislature’s intentions.” (footnote

omitted)). We therefore agree with Martin that in order for the court to

adjudicate the Ostranders de facto parents of the children, the Ostranders

needed to prove that “the relationship was fostered or supported by” Martin

and that Martin and the Ostranders “understood, acknowledged or accepted

that or behaved as though” the Ostranders were parents of the children.

19-A M.R.S. § 1891(3)(C). To hold otherwise would potentially allow the

unilateral actions of one legal parent to cause an unconstitutional dilution of

The statute requires a person seeking to be adjudicated a de facto parent to serve the initiating
14

pleadings and affidavit “upon all parents and legal guardians of the child and any other party to the
proceeding.” 19-A M.R.S. § 1891(2)(A) (2021).

This case does not call on us to decide whether the same requirement applies to legal parents
15

who fail to appear or who appear and do not object. Nor does it present the issue of what standards
apply when an objecting parent has been deemed unfit.
 21

another legal parent’s rights. See E.N. v. T.R., 255 A.3d 1, 31 (Md. 2021) (“[T]o

declare the existence of a de facto parentship based on the consent of only one

[legal] parent . . . undermines and, essentially, negates [any other legal] parent’s

constitutional right to the care, custody, and control of the . . . children.”).16

[¶30] Our conclusion is consistent with Maine’s de facto parentage

statute, which requires “all parents and legal guardians of the child” to be

served with a de facto parentage filing, 19-A M.R.S. § 1891(2)(A), and the law

of other states, see D.C. Code § 16-831.01(1) (LEXIS through all permanent

L. effective as of Nov. 17, 2021) (defining de facto parent to require holding

16In E.N. v. T.R., the Maryland Court of Appeals articulated its rationale for requiring a showing of
consent by all legal parents:

[I]n addition to infringing on a parent’s individual constitutional right to custody and
control of his or her child . . . , there are practical concerns attendant to judicially
creating a de facto parentship without the consent of both legal parents. Creating a
de facto parentship with the consent of only one parent where there are two fit legal
parents and in the absence of exceptional circumstances would result in
circumstances that may be unworkable for the legal parents, the de facto parent, and
the children involved. . . . [T]here will inevitably be circumstances where de facto
parenthood is sought by a third party in the absence of exceptional circumstances and
with both fit legal parents available and involved in a child’s life. Under such
circumstances, to permit the consent of just one parent to create a third parent with
custodial rights to a child without the consent of the second parent may result in
families in Maryland with children being subject to custody and visitation orders
between all three or perhaps more fit parents, who have little or no ability to
co-parent, and who possibly do not even know each other, a situation that could
rarely be seen to be in the best interest of a child.

255 A.3d 1, 40 (Md. 2021) (citation omitted). The court also recognized that “consent” may be
“implied” and may be “inferred from a legal parent’s conduct” and “shown through action or inaction,
so long as the action or inaction is knowing and voluntary and is reasonably understood to be
intended as that parent’s consent to and fostering of the third party’s formation of a parent-like
relationship with the child.” Id. at 34.
22

oneself out as a parent “with the agreement of the child’s parent or, if there are

2 parents, both parents”); E.N., 255 A.3d at 30-32.17

[¶31] Importantly, however, section 1891(3)(C) does not require proof

that every legal parent has given express consent to the de facto parent

relationship. If such consent were required, there could be no litigation of any

de facto parentage claim because a legal parent’s objection would necessarily

defeat the claim. Rather, the proof that section 1891(3)(C) requires is that the

legal parent or parents have recognized, accepted, and supported the formation

and growth of “[a] bonded and dependent relationship” between the putative

de facto parent and the child, 19-A M.R.S. § 1891(3)(C). See Kilborn,

2016 ME 78, ¶¶ 18-20, 140 A.3d 461; Pitts, 2014 ME 59, ¶ 28, 90 A.3d 1169;

Young v. King, 2019 ME 78, ¶¶ 9-12, 208 A.3d 762. A person seeking de facto

parentage status can satisfy the section 1891(3)(C) burden by demonstrating

17 Although we have not had occasion to address the issue directly before, our conclusion is also

consistent with our own decisions. In Kilborn v. Carey, in affirming a de facto parentage
determination on the merits before Maine’s de facto parentage statute became effective, we
addressed separately whether sufficient evidence existed to support the trial court’s findings that
each legal parent fostered and supported the relationship with the de facto parent. 2016 ME 78,
¶¶ 18-21, 140 A.3d 461. Until this case, our de facto parentage decisions under the statute addressed
only issues of standing. See Libby v. Estabrook, 2020 ME 71, ¶ 1, 234 A.3d 197; In re Child of Philip S.,
2020 ME 2, ¶ 1, 223 A.3d 114; Young v. King, 2019 ME 78, ¶ 1, 208 A.3d 762; Lamkin v. Lamkin,
2018 ME 76, ¶ 1, 186 A.3d 1276; Davis v. McGuire, 2018 ME 72, ¶ 1, 186 A.3d 837. In some of those
decisions, however, we affirmed the dismissal of a de facto parentage petition for lack of standing
because one legal parent had not fostered and supported the relationship or acknowledged the
putative de facto parent as a parent, and we did so without considering whether any other legal
parent had fostered or supported the putative de facto parenting relationship. See Davis, 2018 ME 72,
¶¶ 10, 30, 32, 186 A.3d 837; In re Child of Philip S., 2020 ME 2, ¶¶ 3, 9, 22, 223 A.3d 114.
 23

that the child’s legal parent or parents have implicitly, through acts or

omissions if not through words, fostered, supported, and accepted the person’s

parental role. Kilborn, 2016 ME 78, ¶¶ 18-21, 21 n.6, 140 A.3d 461; Young,

2019 ME 78, ¶ 10, 208 A.3d 762.

[¶32] Here, the trial court found, contrary to Martin’s testimony, that at

least by April 2016, Martin knew or should have known that the children were

living with the Ostranders and that he “abdicated his financial and personal

responsibility to care for the children.” See Principles of the L. of Fam.

Dissolution: Analysis and Recommendations § 2.03 cmt. c (Am. L. Inst. 2002)

(explaining that a de facto parent relationship may form without the agreement

of “[t]he legal parent or parents” where there is “a complete failure or inability

of any legal parent to perform caretaking functions,” such as “when a parent is

absent, or virtually absent, from the child’s life”); In re Parentage of J.B.R.,

336 P.3d 648, 653-54 (Wash. Ct. App. 2014) (concluding that a trial court did

not err in finding that a parent “consent[ed] to and foster[ed] a relationship”

with a de facto parent by “voluntarily absent[ing] himself from his child’s life”).

Martin’s pervasive failure to exercise either his parental rights or his parental

responsibilities illustrates the principle that a legal parent’s omissions or
24

absence may create a vacuum in terms of care and nurture that is filled by the

de facto parent relationship. See Libby, 2020 ME 71, ¶ 16, 234 A.3d 197.

[¶33] The court’s findings regarding Martin’s abdication of his rights and

responsibilities are amply supported by the evidence in the record and they are

sufficient to support the determination that Martin—at least implicitly—

understood and accepted that the Ostranders were fulfilling parental roles for

his children. The record evidence went beyond mere omissions on Martin’s

part and included his testimony that he voiced affirmative support for the

Ostranders’ de facto parentage relationship with the children when he

expressed his appreciation to them for “raising [his] girls,” and also that he took

an affirmative step to foster the relationship when he granted them temporary

legal authority over the children. It is true that Martin’s motion to modify

reflected a step toward asserting his own parental rights, but given the

evidence of commitments made but not kept on his part, it did not detract from

the record evidence supporting the court’s findings in favor of the Ostranders.

See Sulikowski v Sulikowski, 2019 ME 143, ¶ 14, 216 A.3d 893 (“The trial court

is the sole arbiter of witness credibility and it is therefore free to accept or reject

portions of the parties’ testimony based on its credibility determinations and

to give their testimony the weight it deems appropriate.” (citation omitted));
 25

Handrahan v. Malenko, 2011 ME 15, ¶ 14, 12 A.3d 79 (“A court is not required

to believe the testimony of any particular witness, . . . even when the witness’s

testimony is uncontradicted.” (quotation marks and citations omitted)).

C. Martin’s Motion to Modify the Divorce Judgment

[¶34] Martin also challenges the court’s denial of his request, made via

his motion to modify the divorce judgment, for sole parental rights and for the

children to live primarily with him in Kansas. See 19-A M.R.S. § 1657(1) (2021).

“We review an order on a post-divorce motion for an abuse of discretion or

error of law and review factual findings contained therein for clear error.”

Lewin v. Skehan, 2012 ME 31, ¶ 24, 39 A.3d 58. “[O]nly a substantial change in

circumstances since the entry of the most recent decree can justify the

modification of the decree, and . . . the overriding consideration whenever a

proposed modification is sought is the best interest[s] of the minor children.”

Levy, Maine Family Law § 6.6[1] at 6-61 (8th ed. 2013) (quotation marks

omitted).

[¶35] We do not agree with Martin that the court acted outside its

discretion when it declined to find that Martin had demonstrated a change in

circumstances—since the entry of the divorce judgment in January 2018—that

was substantial enough to justify the modifications he sought. See Smith v.
26

Rideout, 2010 ME 69, ¶¶ 15-18, 1 A.3d 441; Villa v. Smith, 534 A.2d 1310, 1312

(Me. 1987) (explaining that the trial court has broad discretion to determine

whether a change in circumstances has affected the children’s best interests to

a degree significant enough to justify a change of primary custody). The court

thoroughly examined the children’s best interests in its consolidated order and

determined that those interests would be served by continued residence

primarily with the Ostranders and shared parental rights. It did not err or

abuse its discretion when, in accordance with those supported findings, it

declined Martin’s request for sole parental rights and primary residence.

D. Conclusion

[¶36] We affirm the judgment granting the Ostranders parental rights

and vacate the judgment amending the divorce judgment for three reasons.

First, to the extent that the trial court erred by “adopt[ing]” the magistrate’s

interim findings, the error was harmless. Second, although the Ostranders

were required to prove that Martin—as a legal parent objecting to the

Ostranders’ de facto parentage petition—“fostered or supported” the

Ostranders’ parental role and “understood, acknowledged or accepted that

[role] or behaved as though the” Ostranders were the children’s parents,

19-A M.R.S. § 1891(3)(C), the court did not err when it determined that the
 27

Ostranders had sustained their burden. Finally, because the court’s amended

divorce judgment does not provide that the children’s primary residence is to

be with the Ostranders, we vacate the judgment amending the divorce

judgment and remand to allow the court to remedy that remaining

inconsistency.

The entry is:

The judgment establishing de facto parentage,
parental rights and responsibilities, and child
support is affirmed. The judgment amending the
divorce judgment is vacated. The matter is
remanded for the trial court to enter a new
amended divorce judgment that is consistent
with the judgment establishing parental rights
and responsibilities and provides that the
children’s primary residence shall be with the
Ostranders.

E. Anne Carton, Esq., Brunswick, and Matthew C. Garascia, Esq. (orally), Auburn,
for appellant Mark R. Martin

John F. Zink, Esq. (orally), Freeport, for appellees Dawn and James Ostrander

Vanessa A. Bartlett, Esq., Law Offices of Vanessa A. Bartlett, Portland, for
appellee Marylou E. MacMahan

West Bath District Court docket numbers FM-2017-186; FM-2018-340’
FOR CLERK REFERENCE ONLY