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

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 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.

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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

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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

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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.

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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.

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 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.

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 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.

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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?”

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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

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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.

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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

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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.

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 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

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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.

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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).

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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

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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

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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).

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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

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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.

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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

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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

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[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

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 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

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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.

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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.

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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

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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.”

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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

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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

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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 parents consented to and fostered such a relationship or that a

non-consenting legal parent is unfit 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 G.D. and B.D., E.N. has not expressly or

impliedly consented to and fostered the relationship between her children and T.R. In

addition, T.R. did not establish that E.N. was an unfit parent or that exceptional

circumstances existed such that T.R. would have standing to seek custody of the children.

Although T.R. may have satisfied the second, third, and fourth factors of the H.S.H.-K.

test, she failed to satisfy the first factor and the circuit court erred in concluding that T.R.

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.

The issue in this case was not presented in Conover, as in that case, the child had

only one legal parent—Brittany, the biological mother. See Conover, 450 Md. at 55, 146

Because the trial court had dismissed D.M.’s complaint on a motion for summary
20

judgment, the Court remanded the case for a plenary hearing on whether D.M. was the
psychological parent of Arthur and, if so, whether the best interests of Arthur required
custody, visitation, or other relief. See K.A.F., 96 A.3d at 985.

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A.3d at 435. Nor was the issue presented in Kpetigo, where, although the child had two

biological parents and apparently the child’s mother never appeared before the trial court

or otherwise participated in court proceedings, no issue was raised as to whether the

consent and fostering of the ex-wife’s (the de facto parent’s) formation of a parent-like

relationship with the child required the consent of both the mother and the father and no

review by this Court was sought. See Kpetigo, 238 Md. App. at 566, 192 A.3d at 932. As

such, this case presents the first occasion on which this Court must address application of

the first factor of the four-factor test adopted in Conover to circumstances where a child

has two existing legal parents.

It is well recognized that a parent has a fundamental right, protected by the

Fourteenth Amendment of the United States Constitution, to direct and govern the care,

custody, and control of the parent’s children. See Conover, 450 Md. at 60, 146 A.3d at

438; In re Yve S., 373 Md. at 565, 819 A.2d at 1038. Significantly, there exists a well-

established presumption that a child’s best interests are served by maintaining parental

rights, such that even the Supreme Court has accepted the presumption that parents act in

the best interests of their children. See In re Yve S., 373 Md. at 571-72, 819 A.2d at 1042.

Put plainly, there is a fundamental constitutional right to parent one’s children and a

presumption in favor of a parent having the right to raise his or her own children.

In cases not involving de facto parents, i.e., cases involving third parties seeking

custody or visitation, this Court has repeatedly concluded that to award custody or

visitation to the third party, the third party must show that the parents are unfit or that

exceptional circumstances exist, before a trial court can apply the best interests of the child

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standard. See Conover, 450 Md. at 61, 146 A.3d at 438; Burak, 455 Md. at 624, 168 A.3d

at 918. And, in cases where there are two legal parents in a custody dispute, one of the key

considerations in awarding or not awarding joint legal custody is whether the parents can

communicate and make meaningful decisions together about the child. See, e.g., Santo v.

Santo, 448 Md. 620, 628, 630, 141 A.3d 74, 78, 79 (2016) (Although not the dispositive

factor, “effective parental communication is weighty in a joint legal custody situation

because, under such circumstances, parents are charged with making important decisions

together that affect a child’s future.”). With these principles in mind, we conclude that to

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

ignore whether a second legal parent has consented to and fostered the establishment of a

parent-like relationship, or is a fit parent or whether exceptional circumstances exist

undermines and, essentially, negates that parent’s constitutional right to the care, custody,

and control of the parent’s children. Moreover, completely disregarding whether both legal

parents have consented to and fostered a prospective de facto parent’s parent-like

relationship with a child, or that a parent is otherwise unfit or exceptional circumstances

exist, not only runs afoul of a parent’s constitutional rights, but also basic family law

principles.21

21
Moreover, in determining whether to award joint custody to two parents, one of
the factors a trial court is to consider, in addition to the capacity of the parents to
communicate and reach shared decisions affecting the child’s welfare, is the fitness of the
parents. See Taylor v. Taylor, 306 Md. 290, 304, 308, 508 A.2d 964, 971, 973 (1986).
Indeed, we have stated that “[t]he psychological and physical capabilities of both parents
must be considered, although the determination may vary depending upon whether a parent
is being evaluated for fitness for legal custody or for physical custody. A parent may be

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 It is without doubt that the best interest of the child standard governs all

determinations with respect to children. See, e.g., Conover, 450 Md. at 60, 146 A.3d at

438 (“The primary goal of access determinations in Maryland is to serve the best interests

of the child[.]” (Cleaned up)). “[I]n any child custody case, the paramount concern is the

best interest of the child.” Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964, 970 (1986).

Indeed, “[t]he best interest of the child is [] not considered as one of many factors, but as

the objective to which virtually all other factors speak.” Id. at 303, 508 A.2d at 970. With

our holding, a determination in keeping with the best interest of the child is ensured by

permitting de facto parenthood to be established either through the consent of both legal

parents or a showing of unfitness or exceptional circumstances. Because exceptional

circumstances may be demonstrated even in the presence of two fit legal parents, where

the consent of one parent is absent, a trial court will necessarily be in a position to review

the facts and circumstances that are unique to each case and make a determination as to a

prospective de facto parent’s standing.

Although Conover rightly recognized de facto parenthood in Maryland, the holding

in the case is not without its limitations. To the extent that, in Conover, 450 Md. at 85, 146

A.3d at 453, this Court held that parental unfitness or exceptional circumstances were not

required to establish de facto parenthood before a trial court could apply a best interest of

fit for one type of custody but not the other, or neither, or both.” Id. at 308, 508 A.2d at
973. Thus, even where there are two legal parents, let alone a de facto parent, before a trial
court determines joint or sole custody, the court considers whether one of the parents is
unfit. As such, logic dictates that courts should not allow de facto parenthood to be created
without the consent of both legal parents, a determination of unfitness, or exceptional
circumstances.

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the child analysis, the holding obviously was rendered against the backdrop of a child with

only one legal parent (a biological mother) who would have been required to consent to

and foster a relationship with the de facto parent. When using the H.S.H.-K. test, where a

child has only one legal parent, it is not necessary to find that the existing legal parent is

unfit or that exceptional circumstances exist because, if the existing parent’s conduct shows

that the parent fostered and consented to the formation of the putative de facto parent’s

relationship with the child, nothing more need be shown with respect to the parent. The

circumstances are clearly different where a child has two existing legal parents with equal

constitutional parental rights.

In light of the fundamental rights at stake and important principles expressed in our

case law, we are compelled to hold that, for the well-being of children and family

relationships in Maryland, before establishing de facto parenthood where there are two

existing legal parents, both parents must be shown to have consented to a third party’s

formation of a parent-like relationship with a child or, in the alternative, that one or both

parents are unfit or exceptional circumstances exist. A parent has a fundamental

constitutional right to raise and care for the parent’s child and where there are two legal

parents, one parent’s knowing participation in the formation of a third party’s de facto

parent relationship with a child cannot suffice to serve as the consent of the second parent.

Endorsing a holding that would permit de facto parenthood to be established with the

consent of only one parent where there are two legal parents would intrude upon the second

parent’s constitutional rights, be inconsistent with our case law concerning parental

custody (case law holding that third party intervention for custody requires a showing of

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unfitness or exceptional circumstances), and would potentially create circumstances that

are untenable for all involved.

Before going further, we pause to address one aspect of the Court of Special

Appeals’s opinion in this case concerning its view of the majority and concurring opinions

in Conover. See E.N., 247 Md. App. at 246 & n.10, 236 A.3d at 677 & n.10. In affirming

the judgment of the circuit court, the Court of Special Appeals stated:

We recognize that an interpretation of a majority opinion by a
concurring (or dissenting) member of a court is not binding because a
majority of the court has not placed its imprimatur on that interpretation. We
also recognize that [the] concurring opinion was likely circulated to the entire
Court prior to publication. That the Majority did not respond to [the
concurring opinion]’s specific and substantive concerns provides us at least
some evidence that the Court of Appeals did not disagree with [the
concurring opinion’s] interpretation of the majority opinion. Indeed, 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, 236 A.3d at 677. It appears that the Court of Special Appeals concluded that,

because the majority opinion in Conover did not comment on the concern expressed in the

concurring opinion—that where there are two legal parents, the consent of both legal

parents should be required—the majority in Conover did not disagree with the concurring

opinion’s interpretation of its opinion and the majority’s silence foreshadowed that a

majority of the Court would conclude in this case that only one parent’s consent is needed

where there are two existing parents.

From our perspective, that a majority opinion of an appellate court may not

comment on or respond to a concurring or dissenting opinion may not necessarily be an

indication of how a majority of a Court would hold when an issue that is discussed or raised

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in a concurring or dissenting opinion is before the Court. There may be any number of

instances in which a majority opinion of an appellate court does not comment on a

concurring or dissenting opinion. As but one example, on the matter of inconsistent

verdicts, in Price v. State, 405 Md. 10, 29, 949 A.2d 619, 630 (2008), this Court overruled

prior case law—in which we held that a guilty verdict and a not-guilty verdict could be

legally inconsistent where a jury tries the defendant—and held that “inconsistent verdicts

shall no longer be allowed.” In a concurring opinion, the Honorable Glenn T. Harrell wrote

separately “to note explicitly that the Majority’s holding applies only to ‘legally

inconsistent’ verdicts, not ‘factually inconsistent’ verdicts” in criminal cases. Id. at 35,

949 A.2d at 634 (Harrell, J., concurring). In addition, the concurring opinion set forth a

procedure to be followed in challenging legally inconsistent verdicts at trial. See id. at 40,

949 A.2d at 637 (Harrell, J., concurring). The majority opinion in Price did not comment

on the procedure suggested by the concurring opinion or otherwise clarify or expressly

recognize that its holding applied only to legally inconsistent verdicts, not factually

inconsistent verdicts, as the concurring opinion stated it did.

Yet, a few years later, in McNeal v. State, 426 Md. 455, 459, 44 A.3d 982, 984

(2012), this Court adopted the view expressed by the concurring opinion in Price, stating:

“[W]e adopt as our holding here the thrust of the concurring opinion in Price, that jury

verdicts which are illogical or factually inconsistent are permitted in criminal trials for

reasons we shall explain.” The circumstance that the majority opinion in Price did not

comment on the view expressed in the concurring opinion was of no moment. The same

rationale applies in this case with respect to the majority and concurring opinions in

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Conover. A majority opinion’s silence as to the views or concerns expressed in a

concurring opinion, or a dissenting opinion for that matter, should not be interpreted as

indicative of how the Court would hold when an issue discussed by the concurring or

dissenting opinion is later before the Court.

Returning to the matter at hand, although Conover involved only one parent, the

rationale underlying our holding in the case supports the conclusion that where there are

two legal parents the consent of both parents is necessary to establish de facto parenthood.

In Conover, 450 Md. at 74, 146 A.3d at 447, this Court recognized that de facto parenthood

“cannot be achieved without knowing participation by the biological parent.” (Citations

omitted). We observed that, in V.C. v. M.J.B., 748 A.2d 539, 552 (N.J. 2000), the Supreme

Court of New Jersey stated that the first factor of the H.S.H.-K. test “is critical because it

makes the biological or adoptive parent a participant in the creation of the [de facto]

parent’s relationship with the child.” Conover, 450 Md. at 74, 146 A.3d at 447 (cleaned

up). Additionally, we recognized that, in Marquez v. Caudill, 656 S.E.2d 737, 744 (S.C.

2008), the Supreme Court of South Carolina concluded that the first factor is not only

critical because it makes a legal parent a participant in the creation of the de facto parent’s

relationship with the child, but also because it “recognizes that when a legal parent invites

a third party into a child’s life, and that invitation alters a child’s life by essentially

providing him with another parent, the legal parent’s rights to unilaterally sever that

relationship are necessarily reduced.” Conover, 450 Md. at 75, 146 A.3d at 447 (cleaned

up).

Read to its logical conclusion, to satisfy the first factor, where there are two legal

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parents, both parents must knowingly participate in consenting to and fostering the third

party’s formation of a parent-like relationship with a child. Otherwise, we create the

incomprehensible situation in which a de facto parentship may be created by the knowing

participation of only one legal parent while an equally fit legal parent is denied the same

knowing participation in the process and denied the meaningful input that we deemed so

critical for a parent to have in creating de facto parent status for a third party.

That said, we recognize and hold that a legal parent’s actual knowledge of and

participation in the formation of a third party’s parent-like relationship with a child may

occur either through the parent’s express or implied consent to and fostering of the

relationship. There is no case law or authority that requires that the consent necessary to

satisfy the first factor of the de facto parent test be express. Rather, we conclude that so

long as the consent is knowing and voluntary and would be understood by a reasonable

person as indicating consent to the formation of a parent-like relationship between a third

party and a child, the first factor of the de facto parent test may be satisfied by a legal

parent’s express or implied consent. As we stated in Conover, 450 Md. at 74, 748 A.2d at

447, de facto parenthood requires the knowing participation of the legal parent. Requiring

that the necessary consent be knowing and voluntary imposes no greater burden on either

legal parent than already exists under the first factor of the de facto parent test. Rather, our

holding clarifies that the consent of both legal parents is required and that such consent

may be express or implied.

A review of the concept of implied consent and its application in Maryland

demonstrates that the existence of implied consent is to be determined based on the

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circumstances of a particular case and, while such consent may be inferred by a party’s

conduct, implied consent must nonetheless be knowing and voluntary and must be shown

by conduct that would be understood by a reasonable person as indicating consent. See,

e.g., Wellness, 575 U.S. at 685; Jones, 407 Md. at 51-52, 962 A.2d at 403; Turner, 133 Md.

App. at 207, 754 A.2d at 1082; Mitchell, 164 Md. App. at 510-11, 516, 883 A.2d at 1016,

1019. With respect to de facto parenthood, implied consent may be inferred from a legal

parent’s conduct. Implied consent may be 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. Cf. Mitchell, 164 Md. App. at 511, 883 A.2d at 1016. The

inaction required to establish implied consent would necessarily involve inaction in the

face of information sufficient to inform a legal parent that the other parent had consented

to and fostered the formation of a parent-like relationship between a known third party and

the legal parent’s child, with the legal parent failing to act in any way to object to the

formation of such a relationship. In other words, implied consent by inaction would consist

of the legal parent having sufficient information concerning the fostering of a parent-like

relationship between a third party and the parent’s child and the parent knowingly and

voluntarily not objecting. As such, an inquiry into whether a legal parent impliedly

consented to and fostered a potential de facto parent’s formation of a parent-like

relationship with a child is a fact-specific inquiry to be determined on a case-by-case

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basis.22

Applying these principles to the circumstances of this case, we conclude that in the

absence of E.N.’s consent either express or implied to the formation of a parent-like

relationship between T.R. and her children, the first factor of the H.S.H.-K. test has not

been satisfied. We consider the first factor of the test as it applies to each parent. At the

risk of restating what is already known, G.D. and B.D., the minor children, have two

22
Additionally, it stands to reason that, for purposes of de facto parenthood, where
a second legal parent has not consented either expressly or impliedly to a third party’s
formation of a parent-like relationship with a child, as with establishing third party standing
to seek custody in general, a parent’s knowing and voluntary abandonment of the child
may be an exceptional circumstance. As the Court of Special Appeals recently recognized
in a custody case, “[a]bandonment is a most serious allegation.” Gizzo v. Gerstman, 245
Md. App. 168, 204, 226 A.3d 372, 394 (2020) (citations omitted). Indeed, in Burak, 455
Md. at 648, 168 A.3d at 932, this Court explained that one factor a trial court may consider
in determining whether a parent is unfit is whether the parent has abandoned the child. To
that end, as the Court of Special Appeals stated in Gizzo, 245 Md. App. at 204, 226 A.3d
at 394, in Wakefield v. Little Light, 276 Md. 333, 351, 347 A.2d 228, 238 (1975), in a
related context, this Court defined child abandonment as “[a]ny wilful and intentional
conduct on the part of the parent which evinces a settled purpose to forego all parental
duties and relinquish all parental claims to the child, and to renounce and forsake the child
entirely.” (Quoting Logan v. Coup, 238 Md. 253, 258, 208 A.2d 694, 697 (1965)). Put
plainly, where a parent’s actions may “be construed to evince a settled purpose to relinquish
all parental claims to” a child, Wakefield, 276 Md. at 351-52, 347 A.2d at 238, i.e.,
abandoning that child, such abandonment may demonstrate an exceptional circumstance
sufficient to permit a trial court to determine de facto parentship.
In Logan, 238 Md. at 258, 208 A.2d at 697, we stated that the terms “voluntary
relinquishment” and “abandonment,” as used in the statute at issue in that case, were
essentially synonymous, with only “a fine, but rather slight, distinction between the proper
use of the words” being that “‘abandon’ implies a final and complete relinquishment of
something, as because of weariness, discouragement, etc., and ‘relinquish’ signifies a
giving up of something desirable, and connotes force of necessity or compulsion.”
However, the statute’s use of the adjective “voluntary” modifying the word
“relinquishment” demonstrated “that the connotation of compulsion [was] removed, and
the difference, if any, between ‘voluntary relinquishment’ and ‘abandonment’ was
minuscule.” Id. at 258, 208 A.2d at 697.

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existing biological parents—E.N. and D.D. As to D.D., the record establishes that D.D.

did not expressly seek de facto parenthood status for T.R. The record reveals that D.D.

sought for T.R. to have custody of the children via legal guardianship—an arrangement

that requires the consent of both parents—while he was incarcerated in federal prison for

drug offenses. In a letter that T.R. presented to the circuit court when seeking custody,

D.D. wrote one sentence, stating that he “grant[ed] full custody” to T.R. of the children

“for legal guardianship while I’m incarcerated.”23 Although D.D. participated in the trial

as a witness via telephone and testified about T.R.’s relationship with the children, he did

not expressly request that T.R. be made a de facto parent.24

At bottom, the circumstances of this case are not ones in which one legal parent

explicitly sought de facto parenthood for a third party. Nonetheless, in this case,

irrespective of whether D.D. actually sought de facto parenthood or legal guardianship for

T.R. or whether he knew that T.R. would seek de facto parent status, we agree that, insofar

as D.D. is concerned, T.R. satisfied the first factor H.S.H.-K. test by demonstrating that

D.D.’s conduct met the requirement that he consent to and foster her formation and

establishment of a parent-like relationship with the children. The first factor of the H.S.H.-

K. test does not require that the legal parent(s) seek de facto parenthood on behalf of a

23
At oral argument, when asked whether D.D.’s letter requested custody for legal
guardianship and not for de facto parenthood, T.R.’s counsel was reluctant to answer the
question. Ultimately, T.R.’s counsel agreed that, if it were a question of legal guardianship,
the consent of both parents was required. The record plainly reflects that in his letter D.D.
sought only for T.R. to have legal guardianship.
24
Likewise, in the initial complaint, T.R. sought custody of the children, but did not
request that she be declared a de facto parent.

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prospective de facto parent. Rather, the first factor requires that the legal parent consented

to and fostered, the prospective de facto parent’s formation and establishment of a parent-

like relationship with the child. In other words, under the first factor of the H.S.H.-K. test

the legal parent who fostered the third party’s parent-like relationship with a child may

oppose the granting of de facto parenthood for the third party but a court may nonetheless

grant the third party’s request if all of the factors of the test are satisfied, including, where

there are two legal parents, the consent of both parents. As such, were D.D. the only legal

parent of the children, the analysis of the first factor of the H.S.H.-K. test would be

complete.

In this case, however, it is undisputed that the circuit court found that E.N. did not

expressly or impliedly consent to or foster T.R.’s parent-like relationship with the

children.25 The circuit court found that, although E.N. knew that D.D. had a “romantic

partner,” E.N. did not “positively identify” her, know her, or even meet her until November

2017. Referring to the time period between June 2015 and November 2017, the circuit

court found that “there was evidence that [E.N.] attempted to locate her children a few

times and bring them home[.]” During the time period that the children lived with D.D.

and T.R., E.N. visited the children on at least one occasion when she took the children out

to dinner with their grandparents. Moreover, the circuit court determined that this case did

not involve a voluntary abandonment or surrender of the children on either parent’s part.

25
In this case, however, the circuit court determined that implied consent does not
satisfy the burden under the first factor and rather that consent needs to be express and
explicit. We disagree, as explained above.

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The circuit court explicitly found that it was undisputed that both parents were fit as “there

was no evidence to the contrary presented through the five days of trial.” The circuit court

based these factual findings on the evidence adduced at trial and we see no basis on which

to determine that the circuit court’s findings of fact are clearly erroneous.26

We conclude that the record demonstrates, as the circuit court found, that E.N. did

not impliedly consent to and foster T.R.’s formation of a parent-like relationship with the

children. E.N. did not leave her children for a long period of time in the care of a third

party, but instead gave permission for the children to live with D.D., the other legal parent,

their biological father, which is not an uncommon occurrence among parents who live

separately. E.N. did not object to the children moving in with D.D., but that lack of

objection did not extend to a lack of objection to the children forming a parental

relationship with T.R., a person whom E.N. lacked knowledge of and her role in the

children’s lives. In addition, the record demonstrates that, after D.D. was convicted in

federal court for drug offenses and incarcerated in federal prison in late 2017, in November

2017, E.N. sought to have her children returned to her.27 Stated otherwise, once D.D. was

26
Given that T.R. did not allege in the complaint the existence of exceptional
circumstances and at trial T.R.’s counsel argued that exceptional circumstances need not
be found, the circuit court did not address whether exceptional circumstances existed. We
are aware that during argument on E.N.’s motion for judgment at the conclusion of the
plaintiff’s case, T.R.’s counsel stated that although no showing of exceptional
circumstances was required, information from the children showed exceptional
circumstances, namely, B.D. indicated that he did not want to “go back to a house with
roaches where [he had] to sleep with one cover[.]” Nonetheless, the circuit court did not
make a finding as to exceptional circumstances.
27
At trial, D.D. testified that he was indicted in federal court in May 2017, and that
he has been incarcerated since he surrendered on the indictment to law enforcement

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incarcerated again, E.N. did not abdicate all parental responsibility for her children to and

instead sought to have her children returned to her after they were no longer able to live

with their father due to his incarceration.

The circuit court specifically found that although E.N. knew that D.D. had a

romantic partner, E.N. did not know T.R. or meet her until November 2017, and E.N.

lacked knowledge of T.R.’s importance in the children’s lives. The first factor of the test

for establishing de facto parenthood requires that the legal parent consented to and fostered

the petitioner’s formation of a parent-like relationship, i.e., that the legal parent consented

to and fostered the formation of a parent-like relationship between his or her child and the

person seeking de facto parent status, not just that one legal parent had knowledge that the

other legal parent may have embarked on a relationship with someone who spends time

with or lives with a child. See Conover, 450 Md. at 74, 146 A.3d at 447. In this case, the

circuit court’s finding that E.N. did not consent—either expressly or impliedly—to T.R.’s

formation of a parent-like relationship with the children is more than supported by the

evidence developed at trial. Nothing in the record supports a determination that E.N.,

through knowing and voluntary action or inaction, impliedly consented to and fostered

T.R.’s formation of a parent-like relationship with the children.

As discussed above, in J.B.R., 336 P.3d at 649-50, the Court of Appeals of

Washington interpreted the H.S.H.-K. test prior to the enactment of a de facto parent statute

authorities that month. The circuit court found that D.D. was “charged and incarcerated
for his second drug related activity in late 2017.” It is undisputed, however, that E.N.
attempted to get her children back in November 2017.

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in the State and concluded that de facto parenthood could extend to a stepparent who

petitions for such status provided that the stepparent established the four factors of the de

facto parent test, including “that both legal parents consented to the stepparent being a

parent to the child[.]” (Emphasis omitted). The circumstances of this case, however, are

different from those in J.B.R., 336 P.3d at 653, in which the Court determined that the

biological father’s choice to not support his daughter or to have a relationship with her for

over a decade demonstrated his consent for a third party to establish a parent-like

relationship with the child and that the father’s complete non-involvement in his child’s

life for over a decade fostered the child’s relationship with the third party. To extent that

the Court in J.B.R. determined that the first factor of the de facto parent test was satisfied

through the implied consent of the biological father, we part ways with the finding insofar

as this case is concerned, as the record amply demonstrates that E.N. did not impliedly

consent to T.R.’s formation of a parent-like relationship with the children and did not

abandon her children.

In K.A.F., 96 A.3d at 982-83, the Appellate Division of the Superior Court of New

Jersey concluded that the first factor of the de facto parent test requires the consent of only

one legal parent and placed weight on the circumstance that the Supreme Court of New

Jersey had used references to a singular “legal parent” or “the legal parent” when discussing

the factor of consent. Nonetheless, in K.A.F., the Appellate Division of the Superior Court

of New Jersey made clear that, in its view, de facto parenthood cases are a subsection of

cases in which exceptional circumstances may exist for allowing a third party standing to

seek custody and that while the de facto parent test required the consent of only one legal

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parent, the second legal parent’s consent is a factor to be considered. See K.A.F., 96 A.3d

at 980, 983. As such, the holding by the intermediate court in K.A.F. does not stand for

the proposition that in determining de facto parenthood the consent of a second legal parent

is to be entirely ignored. Moreover, the view that there are no policy reasons that require

two legal parents to consent to and foster a person’s parent-like relationship with a child

prior to a court according a person de facto parent status fails to account for the

circumstance that the best interest of a child may often be fostered where two parents are

in agreement on basic issues concerning the care, custody, and upbringing of the child. In

any event, under our holding in this case, such a view is of no consequence because where

one parent may be reluctant to consent or recalcitrant, consent of the second legal parent is

not the only means by which de facto parenthood may be established, i.e., a trial court may

consider the non-consenting parent’s fitness and whether exceptional circumstances

exist.28

Although the first factor of the H.S.H.-K. test as this Court adopted it in Conover

uses the singular (referring to “the biological or adoptive parent”), unlike in K.A.F., we

place no weight on the use of the singular reference. The use of the singular reference “a

28
In addition, we are mindful of the reasoning that requiring only one parent to
consent to the formation of a third party’s parent-like relationship with a child should be
permissible because the child may have already formed a parent-like relationship with the
third party through the consent of one parent. See K.A.F., 96 A.3d at 981-82. This
reasoning, however, assumes that the other three factors of the de facto parent test would
be or have been met and that it has already been determined that a parent-like relationship
exists sufficient to satisfy the requisite factors. In other words, this reasoning is based on
the notion that because a de facto parent relationship has been established (which has yet
to be determined), it should not be necessary to have the consent of both parents.

- 65 -
parent” in adopting the H.S.H.-K. test in Conover, was due to the circumstance that in

Conover only one biological parent existed. Indeed, H.S.H.-K., 533 N.W.2d at 421-22,

involved only one legal parent. In Conover, at bottom, the Court was not confronted with

circumstances involving two existing biological or adoptive parents such that rephrasing

the first factor of the H.S.H.-K. test to account for two parents was necessary.29

In a like vein, we are unpersuaded that the ALI’s definition of a de facto parent, set

forth above, and its use of the singular “a legal parent” mandates a different outcome or

that the definition requires the consent of only one legal parent where two legal parents are

known. As we noted in Conover, 450 Md. at 62 n.6, 146 A.3d at 439 n.6, the ALI defines

a de facto parent in relevant part as someone other than a legal parent or a parent by estoppel

who, for a significant time of not less than two years, lived with the child and “with the

agreement of a legal parent to form a parent-child relationship,” performed caretaking

functions for the child. (Citation omitted).

As the ALI’s definition of de facto parent makes clear, a de facto parent is

distinguishable from a legal parent or parent by estoppel. To be sure, the definition of a

parent by estoppel includes in § 2.03(1)(b)(iii) and (1)(b)(iv) the language “agreement with

the child’s [] parent (or, if there are two legal parents, both parents)[.]” In other words,

29
Also, in Maryland, it is well established that use of the singular includes the plural
and vice versa for purposes of construction of statutory provisions and the Maryland Rules.
See Md. Code Ann., Gen. Prov. (2014, 2019 Repl. Vol.) § 1-202 (“The singular includes
the plural and the plural includes the singular.”); Md. R. 1-201(d) (“Words in the singular
include the plural[.]”). That principle may apply with equal force to factors of a test
adopted or created by this Court unless the Court’s holding, or reason, were to dictate
otherwise.

- 66 -
according to the ALI’s definition of a parent by estoppel, under certain circumstances, a

parent by estoppel can be established only by agreement of both legal parents. And, the

ALI’s definition of de facto parent refers simply to “the agreement of a legal parent[.]” Id.

at § 2.03(1)(c)(ii).

Nevertheless, the comments to the ALI’s definitions of parent by estoppel and de

facto parent are instructive. With respect to a parent by estoppel, Comment b to the ALI’s

definitions states that the ALI “treats a parent by estoppel the same as a legal parent” and

that, under § 2.03(1)(b)(iii), “[w]hen there are two legal parents, each parent must agree”

and that such an “[a]greement may be implied from the circumstances.” Id. at § 2.03 cmt.

b. Comment b also states that, under § 2.03(1)(b)(iv), “the agreement of each of the child’s

legal parents” is required and, as with § 2.03(1)(b)(iii), “sometimes the child has only one

legal parent. If the child has two legal parents, both parents must agree.” In other words,

Comment b reaffirms the definitional language of parent by estoppel, as set forth in §

2.03(1)(b)(iii) and § 2.03(1)(b)(iv)—that, where two legal parents exist, both legal parents

must agree to the formation of the relationship.

With respect to a de facto parent, Comment c to the ALI’s definitions states in

relevant part:

The requirements for becoming a de facto parent are strict, to avoid
unnecessary and inappropriate intrusion into the relationships between legal
parents and their children. The individual must have lived with the child for
a significant period of time (not less than two years), and acted in the role of
a parent for reasons primarily other than financial compensation. The legal
parent or parents must have agreed to the arrangement, or it must have arisen
because of a complete failure or inability of any legal parent to perform
caretaking functions.

- 67 -
Id. at § 2.03 cmt. c. Comment c also provides:

The only circumstance in which a de facto parent may be recognized without
the agreement of a legal parent is when there has been a total failure or
inability by the legal parent to care for the child. This circumstance exists
only when a parent is absent, or virtually absent, from the child’s life, such
as when a parent has abandoned the child or has been imprisoned or
institutionalized. While some of these circumstances may be considered
beyond the control of the legal parent, they function in the same way to
permit to develop the kind of long-term, substitute parent-child relationship
that this Chapter seeks to recognize.

Id. In other words, although the ALI’s definition of a de facto parent uses the singular “a

legal parent[,]” Comment c concerning the definition of de facto parent readily supports

the conclusion that the ALI requires the agreement of both legal parents, where two legal

parents exist, to a third party’s formation of a de facto parent relationship with a child, with

the limited exception of where there has been a total failure or inability by a legal parent to

care for the child.30 Simply put, the ALI’s definitions of parent by estoppel and de facto

parent and accompanying Comments support our holding that, where two legal parents

exist, under the first factor for establishment of de facto parenthood, both legal parents

must consent to and foster the prospective de facto parent’s formation of a parent-like

relationship with the child. The record in this case is clear that at least one legal parent—

E.N., the children’s biological mother—did not consent to and foster T.R.’s formation of a

30
ALI, Principles of the Law of Family Dissolution: Analysis and Recommendations
§ 2.04(1) includes a de facto parent as one of the parties with standing to bring an action
for a custody determination. Specifically, § 2.04(1)(c) provides that a de facto parent, as
defined in § 2.03(1)(c), “who has resided with the child within the six-month period prior
to the filing of the action or who has consistently maintained or attempted to maintain the
parental relationship since residing with the child” “should be given a right to bring an
action . . . and to be notified of and participate as a party in an action filed by another[.]”

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parent-like relationship with the children. As such, T.R. has not satisfied all four factors

of the test to establish herself as a de facto parent to the children and the circuit court erred

in determining otherwise and in proceeding to analyze the best interests of the children and

awarding custody to T.R.

Finally, we observe that in addition to infringing on a parent’s individual

constitutional right to custody and control of his or her child and being inconsistent with

applicable case law concerning standing for third party custody, 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. For instance, “[w]here 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[,]”

Conover, 450 Md. at 88, 146 A.3d at 455 (Watts, J., concurring), or, as in this case, a fit

legal parent being ordered to co-parent with a person who is a stranger to the parent, with

further conflict foreordained for the legal parent, the putative de facto parent, and children.

Moreover, although the circumstances of this case involve one legal parent who is

incarcerated and therefore presently unavailable, there 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

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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.31 Permitting de facto parenthood to be established based on the express or implied

consent of both legal parents, where there are two existing legal parents, or a showing of

unfitness or exceptional circumstances strikes the appropriate balance between the parent’s

fundamental right to raise a child and the best interest of the child.

Conclusion

For the reasons set forth herein, we hold that under the first factor of the test for

establishment of de facto parenthood—whether the biological or adoptive parent consented

to, and fostered, a petitioner’s formation and establishment of a parent-like relationship

with a child—where there are two legal (biological or adoptive) parents, the prospective

de facto parent must demonstrate that both legal parents consented to and fostered such

relationship, or that the non-consenting legal parent is unfit or exceptional circumstances

exist. Accordingly, we reverse the judgment of the Court of Special Appeals in this case.

The case is remanded to the Court of Special Appeals with instruction to remand to the

31
We note that this opinion should not be interpreted as a determination that the
formation of three-parent or tri-parent families by people who consent is prohibited in
Maryland. As our holding in this case makes clear, with the satisfaction of the four factor
test for de facto parenthood adopted in Conover, including the consent of both parents
where there are two legal parents, or in the event that a third party demonstrates the
unfitness of a non-consenting legal parent or the existence of expectational circumstances,
a third party may become a de facto parent.

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circuit court for that court to vacate the judgment awarding joint legal custody and sole

physical custody to T.R.

JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED. CASE REMANDED TO
THAT COURT WITH INSTRUCTION TO
REMAND TO THE CIRCUIT COURT FOR
PRINCE GEORGE’S COUNTY TO VACATE
JUDGMENT AWARDING CUSTODY TO
RESPONDENT. RESPONDENT TO PAY COSTS.

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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.
______________________________________

Dissenting Opinion by Biran, J.,
which Barbera, C.J., joins
______________________________________

Filed: July 12, 2021
 Respectfully, I dissent. There is no sound basis in law or policy to require that both

legal parents must consent to and foster a third party’s parental-type relationship with their

child before a family court may recognize the third party as a de facto parent with standing

to seek custody and visitation. It should suffice that one of the legal parents has consented

to the relationship. In my view, the Majority’s holding is a step backwards along the path

to a modern understanding of the best interests of children, and will inevitably result in

judicial determinations that harm children.

In this case, D.D. – one of G.D.’s and B.D.’s legal parents – consented to and

fostered T.R.’s parental-type relationship with the children, and T.R. meets all the other

requirements for de facto parent status under Conover v. Conover, 450 Md. 51 (2016).

Thus, I would affirm the Court of Special Appeals’ holding that T.R. is a de facto parent

to G.D. and B.D.

I

Conover involved a same-sex couple who had a child together through artificial

insemination of one of the women. Conover, 450 Md. at 55. The married couple separated

when the child was 17 months old and eventually contested whether the spouse who was

not the biological mother of the child had standing to seek visitation of the child. Id. Thus,

Conover involved one extant legal parent, not two as in this case. In Conover, this Court

adopted Wisconsin’s multi-part test for recognition of de facto parent status with respect

to a minor child, which requires that a third party who seeks such status show:

(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.

Id. at 74 (quoting In re Custody of H.S.H.-K., 533 N.W.2d 419, 435-36 (Wis. 1995)). We

observed that “these factors set forth a high bar for establishing de facto parent status,

which cannot be achieved without knowing participation by the biological parent.” Id.

Notably, we incorporated the H.S.H.-K. test into Maryland’s common law without altering

the first factor to require that all biological or adoptive parents of a child must have

consented to, and fostered, the would-be de facto parent’s formation and development of a

parent-like relationship with the child. Rather, we referred to “the biological or adoptive

parent” in the singular. Id. at 74.

The significance of the singular “parent,” rather than the plural “parents,” to future

cases was not lost on the members of the Conover Court. In a Concurring Opinion, Judge

Shirley M. Watts (joined by Judge Lynne A. Battaglia) explained that, by incorporating the

first factor of the H.S.H.-K. test without alteration, “the Majority [held] that only one parent

is needed to consent to and foster a parent-like relationship with the would-be de facto

parent.” Id. at 455 (Watts, J., concurring). Judges Watts and Battaglia concurred in the

Majority’s recognition of de facto parent status in Maryland, but declined to join the

Majority Opinion. In their view, in adopting the H.S.H.-K. test – in particular, the first

-2-
factor of that test – the Majority created “a standard that is too broad.” Id. at 87. The

concurring judges further stated that the Majority Opinion “does citizens, and particularly

the children, of Maryland a disservice by not including additional protections to ensure that

children and families are not overburdened by the custody and visitation demands of

multiple parents, and by not including the limitation that, in circumstances where there are

two existing parents, both parents need to have notice of, and the opportunity to consent

to, the de facto parentship of a third party.” Id. at 94.

The Conover Majority did not disclaim Judge Watts’s interpretation of the Majority

Opinion. That is, the Majority did not say that it was only holding that the H.S.H.-K. test,

as set forth in the Majority Opinion, was applicable to cases where there was one extant

legal parent. Nor did the Majority say that it was expressing no opinion as to the

hypothetical two-parent situation with which the Concurrence was concerned. To the

contrary, in a footnote, the Conover Majority seemingly acknowledged the Concurrence’s

concern about overburdening children and families with custody and visitation demands of

multiple parties: “In 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 … be overburdened or fractured by multiple persons seeking

access.” Id. at 75 n.18. Thus, rather than modifying the first prong of the H.S.H.-K. test, as

suggested by the Concurrence, to eliminate standing for the third party unless both legal

parents consented to the creation of the de facto parental relationship, the Conover Majority

indicated that trial judges should address potential “overburdening” in the course of

-3-
assessing the claims of all parties with standing, including de facto parents.

In this case, the Court of Special Appeals agreed with Judge Watts’s assessment in

her Concurring Opinion that the Conover Majority adopted a requirement that, regardless

of whether there is one legal parent or more than one legal parent, only one legal parent

need consent to and foster a third party’s parental-type relationship in order to satisfy the

first prong of the H.S.H.-K. test. See E.N. v. T.R., 247 Md. App. 234, 245-47 (2020).

However, the Majority now adopts the position that the Conover Majority declined to

accept, and creates a new requirement for recognition of de facto parent status where a

child has two legal parents. In such a situation, the Majority holds, both legal parents must

consent to and foster the creation of a parental caregiving relationship between a third party

and a child in order for the third party potentially to qualify as a de facto parent. The

Majority stakes out this new position on the grounds that a contrary holding: (1)

“undermines and, essentially, negates [the nonconsenting] parent’s constitutional right to

the care, custody, and control of the parent’s children,” Maj. Op. at 51; (2) “runs afoul of

… basic family law principles,” id.; and (3) “would potentially create circumstances that

are untenable for all involved.” Id. at 54. Respectfully, I disagree with all of these

contentions.

Of course, it is “well-established that the rights 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.

However, it is equally well-established that a legal parent’s constitutional right to parent a

child is not absolute. See, e.g., In re Mark M., 365 Md. 687, 705 (2001) (a parent’s interest

-4-
in raising a child, while a fundamental right, “is not absolute and does not exclude other

important considerations”). As we stated in Taylor v. Taylor, one of this Court’s most

consequential custody cases, “in any child custody case, the paramount concern is the best

interest of the child.” 306 Md. 290, 303 (1986). “[W]e have variously characterized this

standard as being ‘of transcendent importance’ and the ‘sole question’” in such cases. Id.

(quoting Ross v. Hoffman, 280 Md. 172, 175 n.1 (1977)). “The best interest of the child is

therefore not considered as one of many factors, but as the objective to which virtually all

other factors speak.” Id. Thus, “while a parent has a fundamental right to raise his or her

own child, … the best interests of the child may take precedence over the parent’s liberty

interest in the course of a custody, visitation, or adoption dispute.” Boswell v. Boswell, 352

Md. 204, 219 (1998); see also In re Adoption/Guardianship of C.A. and D.A., 234 Md.

App. 30, 54 (2017) (“[A] child’s best interests do trump the parent’s liberty interest in

maintaining his relationship with a child.”). The fundamental flaw in the Majority’s

holding is that, by eliminating the ability to consider a parental-type relationship that has

developed in the life of a child (barring a finding of parental unfitness or “exceptional

circumstances”), it prevents a family court from fully assessing and furthering the child’s

best interests in its custody determination.

Moreover, in my view, it is inaccurate to say that the trial court’s and intermediate

appellate court’s holding in this case negates a nonconsenting parent’s right to parent their

child. The Majority seemingly views this a zero-sum situation: if the would-be de facto

parent is given standing, the nonconsenting legal parent somehow becomes less of a parent.

I do not see it that way. First of all, we are considering a question of standing, which gives

-5-
a party the opportunity to address the best interests of the child in court. The family court

in any particular case may decide not to award custody or visitation to a de facto parent.1

But even in those cases where the family court awards both the legal parent(s) and a de

facto parent custody and/or access to the child, the nonconsenting legal parent remains a

parent to the child. The nonconsenting parent may have to share custody and/or access with

a third person to some extent, but they retain their ability to live with the child, take care

of the child, and make decisions about the child’s welfare and upbringing. This

undoubtedly satisfies the Fourteenth Amendment.

In my view, the Majority errs by failing to give any weight to the rights of children

to maintain relationships with parental-type caregivers after those relationships have been

formed and fostered for a significant period of time by at least one legal parent. To be sure,

a legal parent has a fundamental right to parent their child, but that right must be balanced

in each case against the harm that will befall a child if a relationship with another parental

figure is severed. The only way a court can undertake that balancing analysis is if all parties

who have maintained a parent-child relationship for a significant period of time have

standing to make their case for custody and access to the child.

The Majority further reasons that allowing a nonconsenting legal parent to

unilaterally sever a psychological bond between a third party and a child that was fostered

1
As discussed below, a legal parent should be entitled to various preferences in a
custody dispute with a de facto parent, provided that the legal parent exercised a reasonable
amount of parenting functions prior to the dispute. This further diminishes any concern
about “undermining” or “negating” a nonconsenting legal parent’s constitutional right to
parent a child by affording standing to a person who has formed and developed a parent-
child relationship with the consent of another legal parent.

-6-
by another legal parent is consistent with this Court’s prior family law cases, specifically

“case law holding that third party intervention for custody requires a showing of unfitness

or exceptional circumstances.” Maj. Op. at 53-54. The problem with the Majority’s

position is that we are not dealing here with “any third party.” See Conover, 450 Md. at 71-

72 (quoting Smith v. Guest, 16 A.3d 920, 931 (Del. 2011) (“This is not a case … where a

third party having no claim to a parent-child relationship (e.g., the child’s grandparents)

seeks visitation rights. Guest is not ‘any third party.’ Rather, she is a [] de facto parent who

…would also be a legal ‘parent’ of [the child].”)). To the contrary, we are considering a

parental-type relationship in which a psychological bond has developed between the

putative de facto parent and a child. As we explained in Conover, “the importance – for

legal purposes – of a psychological bond between a child and non-parent confirms the

notion that de facto parenthood is distinct from pure third party status.” Id. at 77; see also

id. at 76-77 (quoting Monroe v. Monroe, 329 Md. 758, 775 (1993), an exceptional

circumstances case: “Whether the child has established a relationship with a third party

sufficient to constitute exceptional circumstances … is not dependent on its development

during the absence of the biological parent. A relationship resulting in bonding and

psychological dependence upon a person without biological connection can develop during

an ongoing biological parent/child relationship. Particularly is this true when the

relationship is developed in the context of a family unit and is fostered, facilitated and …

encouraged by the biological parent.”). The psychological bond between a putative de facto

parent and child is no less real where the parent-child relationship has been fostered by

only one of two legal parents. It stands to reason that a putative de facto parent’s status as

-7-
a “pure third party” – and, therefore, whether they must show unfitness of the legal parent

or exceptional circumstances to have standing – does not depend on whether only one or

both legal parents fostered the relationship and psychological bond with the child. If the

relationship has developed over a significant period of time in which the adult performed

caregiving functions for the child as a member of the same household, the putative de facto

parent is not a “pure third party,” regardless of whether only one legal parent or both legal

parents fostered the relationship and bond. It follows that, where either legal parent has

consented to and fostered the relationship, a putative de facto parent need not show the

unfitness of the nonconsenting parent or the existence of exceptional circumstances in

order to have standing to seek custody or visitation.

The Majority’s contrary rule leads to the result that D.D. would not be permitted to

sever the bond that T.R. formed with G.D. and B.D. because D.D. consented to and fostered

that relationship, but E.N. is allowed to sever that bond because she did not consent to and

foster it. This begs the question: From the perspective of G.D. and B.D., what difference

does it make which legal parent is the instrument of their not being able to have a

relationship with T.R. any longer? They will feel the loss of this relationship – the only

relationship they had with a maternal figure for several years – regardless of which of their

legal parents is the cause. See American Law Institute, Principles of the Law of Family

Dissolution: Analysis and Recommendations (2003) (adopted May 16, 2000) (the “ALI

Principles”) § 2.08 cmt. d (“From the child’s point of view, what matters is how he or she

was cared for and by whom, not why.”); see also Joseph Goldstein, Anna Freud & Albert

J. Solnit, Beyond the Best Interests of the Child 19 (1979) (“Whether any adult becomes

-8-
the psychological parent of a child is based thus on day-to-day interaction, companionship,

and shared experiences. The role can be fulfilled either by a biological parent or by an

adoptive parent or by another other caring adult – but never by an absent, inactive adult,

whatever his biological or legal relationship to the child may be.”).

The Majority justifies this perverse result by postulating that the lower courts’ ruling

creates “the incomprehensible situation in which a de facto parentship may be created by

the knowing participation of only one legal parent while an equally fit legal parent is denied

the same knowing participation in the process and denied the meaningful input that we

deemed so critical for a parent to have in creating de facto parent status for a third party.”

Maj. Op. at 57. But the Majority’s position ignores a reality that all parents understand

when they have a child: the union that produced the child may not last forever. Thus, it is

reasonably foreseeable to any legal parent at the time a child is born that there may come

a day when the other legal parent will “invite[] a third party into a child’s life,” and thereby

“alter a child’s life by essentially providing him with another parent.” Marquez v. Caudill,

656 S.E.2d 737, 744 (S.C. 2008). When they have the child, the two legal parents typically

do not know whether the union will end and, if so, which one of them may consent to and

foster a parental-type relationship between the child and a new partner. All they usually

know at the time they bring the child into the world is that it is possible they will not be the

only two people who ever form a parental-type psychological bond with their child.

I do not in any way minimize the pain and frustration that a legal parent of a child

may feel about a third person – without the legal parent’s consent – having developed a

psychological bond with their child and then seeking de facto parent status and an

-9-
allocation of custody. But the nonconsenting parent’s understandable anguish is not a

sufficient reason to empower that parent unilaterally to sever the parental-type

psychological bond that the would-be de facto parent has formed with the child through no

fault of the adult or child. When a person becomes one-half of a union that produces a

child, they assume the risk that they one day may be confronted with this very situation. In

short, although it undoubtedly can be very difficult for a nonconsenting parent to accept

that a bond has formed between a new partner and their child sufficient to confer de facto

parent status, it is not “incomprehensible.”

The Majority’s policy arguments also are unpersuasive. The Majority is concerned

that the lower courts’ ruling could lead to, “as in this case, a fit legal parent being ordered

to co-parent with a person who is a stranger to the parent, with further conflict foreordained

for the legal parent, the putative de facto parent, and children.” Maj. Op. at 69. It is not

clear how the Majority is able to divine that conflict is “foreordained” in all such cases.

Certainly, the family court in some cases may be concerned about the potential for conflict

and can tailor its custody and access orders accordingly. In other cases, however, two adults

who did not previously know each other well (or even at all), but who both have the best

interests of a child at heart, may well find a way to co-parent effectively. Indeed, it may

even be the case that, because they do not have a prior romantic history complicating their

relationship, a legal parent and de facto parent may end up co-parenting more effectively

than two legal parents sometimes do.

This is exactly the type of point that should be considered by a family court that has

all the parties before it and is able to delve into the unique dynamics of the case. Those

- 10 -
unique dynamics may militate in some cases toward awarding only a small amount of

physical custody to the de facto parent and awarding legal custody solely to the legal

parent(s). In other cases, such as this one, the best interests of the child may result in an

order of joint legal custody. The Majority does Maryland children a disservice by adopting

a blanket rule that prevents family courts from considering the unique facts and

circumstances of these situations and, in appropriate cases, allowing the parties the

opportunity to try to work together in the best interests of a child.

The Majority’s concern about a child having three or more fit parents, “who have

little or no ability to co-parent, and who possibly do not even know each other,” Maj. Op.

at 70, also does not provide support for the rule the Majority adopts today. Even if I felt

confident enough to opine, as the Majority does, that such “a situation could rarely be seen

to be in the interest of a child,” id., the Majority’s formulation proves my point. If legal

recognition of a tri-parent family, without the consent of all three parents, even “rarely”

will be in the best of interest of the affected child, this Court should allow a family court

to determine if the matter before it is one such case. To be sure, as this Court said in

Conover, in response to Judge Watts’s point along these lines in her Concurring Opinion,

“[a] court should be very cautious and avoid having a child or family … be overburdened

or fractured by multiple persons seeking access.” Conover, 450 Md. at 75 n.18. But this

advisement by the Conover Majority presupposes that the decision is the family court’s to

make after hearing evidence and being able to inquire of all parties and their counsel. In

my view, the Majority here errs to the detriment of Maryland children and families by

- 11 -
taking such determinations away from the family court.2

By constraining the family court’s ability to assess these cases based on their

individual circumstances, the Majority’s holding will lead to undesirable results. First and

foremost, it will lead to psychological harm for children as they suffer the sudden loss of a

parental-type relationship. Further, it will disincentivize people like T.R. from filling a void

left by a parent who, for whatever reason, is not present for their children for a substantial

period of time. This will not be a good outcome for children who find themselves in

situations similar to the one G.D. and B.D. faced.

The Majority’s references to the ability of a third party to obtain standing by

showing parental unfitness or exceptional circumstances, see, e.g., Maj. Op. at 65, 69-70,

are not reassuring, because those mechanisms do not solve the problem the Majority creates

by requiring two-parent consent for all the other cases that do not fall into either of these

two categories. The psychological bond between a would-be de facto parent and a child –

and the harm that may befall the child if that bond is severed – is no less real where a

nonconsenting parent is fit or where a court otherwise would not find the presence of

exceptional circumstances.3

2
As discussed below, the ALI Principles make a similar point in the course of noting
a preference for legal parents and parents by estoppel over de facto parents in cases where,
“in light of the number of other adults to be allocated responsibility, the allocation is
impractical.” ALI Principles § 2.18 cmt. b.
3
If the Majority were of the view that the existence of a psychological bond between
a child and a parental-type figure, developed with the consent of one legal parent over a
significant period of time, qualified in every instance as “exceptional circumstances,” that
would, of course, alleviate my concerns. However, I do not understand that to be the
Majority’s position.

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 I find further support for the lower courts’ ruling from other jurisdictions and from

the ALI Principles. As the Majority explains, in K.A.F. v. D.L.M., 96 A.3d 975 (N.J. Super.

Ct. App. Div. 2014), the court held that the first factor of the H.S.H.-K. test requires the

consent of only one legal custodial parent. There, one of the child’s two legal parents

(K.A.F.) initially consented to and fostered a parental-type relationship between her new

partner, D.M., and the child. Id. at 978. The child’s other legal parent (F.D.) opposed

D.M.’s relationship with the child at all times. Id. By the time the case came to court, both

K.A.F. and F.D. opposed D.M.’s claim of de facto parent status and her request for custody

and visitation. Id. The trial court dismissed D.M.’s claim on the ground that F.D. had

always opposed the parent-like relationship, holding 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 appellate court reversed, explaining 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 opined 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 further explained that the “clear policy underlying” prior New Jersey Supreme

Court rulings regarding “exceptional circumstances” cases

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

- 13 -
 legal parent, however expressed, for such a length of time that a parent-child
bond has developed, and terminating that bond may cause serious
psychological harm to the child. It is 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.
If we were to accept the arguments of K.A.F. and F.D., a court would be
powerless to avert harm to a child through the severance of the child’s
parental bond with a third party.

Id. at 981-82 (citations omitted). The court further explained:

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.

Id. at 983.

Like the New Jersey appellate court, I believe it is crucial that one of the legal

parents must “voluntarily create[] the relationship and thus … permit[] the third party to

enter the zone of privacy between her and her child,” id., but that only one legal parent

need do so for the third party potentially to qualify as a de facto parent.4

4
As the Majority notes, the K.A.F. Court added that a legal parent’s consent, or lack
thereof, to a third party’s relationship with the parent’s child “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. at 983. Given
this language, the Majority opines that the K.A.F. Court’s holding “does not stand for the
proposition that in determining de facto parenthood the consent of a second legal parent is
to be entirely ignored.” Maj. Op. at 65. Nevertheless, it is clear that the Majority’s holding
today is at odds with K.A.F., in that the Majority requires a showing of consent by the
second legal parent to the formation of the parental-type relationship between the putative

- 14 -
 The Majority disagrees with K.A.F.’s holding and, instead, prefers that of the

Washington Court of Appeals in In re Parentage of J.B.R., 336 P.3d 648 (Wash. App. Ct.

2014). In summarizing its holding in the first paragraph of the opinion in J.B.R., the

intermediate appellate court of Washington stated that the doctrine of de facto parentage

“may be extended to a stepparent of a child with two legal parents … if the stepparent

petitioner establishes that both legal parents consented to the stepparent being a parent to

the child.” Id. at 649-50. However, in the body of the opinion, the court provided no

analysis explaining why the consent of both legal parents is necessary. Instead, the court

focused on the long-absent biological father’s implied consent for the biological mother’s

partner to fill the vacant paternal role. See id. at 653.

Notably, in 2018, the Washington State Legislature superseded J.B.R.’s holding

when it enacted a statute entitled “Adjudicating claim of de facto parentage of child.”

Wash. Rev. Code Ann. § 26.26A.440 (2019). Pertinent to the issue before us, the new

statute provides:

In a proceeding to adjudicate parentage of an individual who claims to be a
de facto parent of the child, the court shall adjudicate the individual who
claims to be a de facto parent to be a parent of the child if the individual
demonstrates by a preponderance of the evidence that:

(a) The individual resided with the child as a regular member of the
child’s household for a significant period;

(b) The individual engaged in consistent caretaking of the child;

(c) The individual undertook full and permanent responsibilities of a

de facto parent and the child. In my view, the consent of the second legal parent (or the
lack thereof) is properly considered as part of the best interests analysis, not in deciding
whether the first prong of the H.S.H.-K. test has been met.

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 parent of the child without expectation of financial compensation;

(d) The individual held out the child as the individual’s child;

(e) The individual established a bonded and dependent relationship
with the child which is parental in nature;

(f) Another parent of the child fostered or supported the bonded and
dependent relationship required under (e) of this subsection; and

(g) Continuing the relationship between the individual and the child is
in the best interest of the child.

Id. § 26.26A.440(4) (emphasis added).

The Washington Court of Appeals has explained that the “parental support”

requirement set forth in § 26.26A.440(4)(f) only requires a showing that one legal parent

“fostered or supported” the requisite “bonded and dependent relationship.” Matter of

L.J.M., 476 P.3d 636, 644 (Wash. Ct. App. 2020) (noting that “RCW 26.26A.440(4)(f)

does not reference the child’s other genetic parent. The only requirement is that one parent

– ‘[a]nother parent’ – support the petitioner’s relationship with the child.”) (emphasis

removed). The court acknowledged 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 recognized that the new statute takes a different approach by “clearly

refer[ring] to ‘[a]nother parent,’ not both parents.” Id. at 644-45 n.4.

Thus, to the extent the Majority relies on J.B.R. as support for its holding that both

legal parents’ consent is required to create a de facto parentship, it not only relies on a case

- 16 -
that provided no reasoned analysis,5 but also has no effect under current Washington law.

To the contrary, the Washington State Legislature has codified the approach taken by the

Court of Special Appeals in this case.

As the Majority notes, in Conover, this Court cited the ALI Principles favorably.

See Conover, 450 Md. at 81 (citing §§ 2.03 and 2.04 of the ALI Principles and noting that

the ALI “has 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”). Section

2.03 of the ALI Principles includes three types of parents in its definition of a “parent”: (1)

a “legal parent”; (2) a “parent by estoppel”; and (3) a “de facto parent.”

For our purposes, a “legal parent” is a biological or adoptive parent. See Conover,

450 Md. at 74. Under the ALI Principles, a “parent by estoppel” is “an individual who,

though not a legal parent,”

(i) is obligated to pay child support …; or
(ii) lived with the child for at least two years and
(A) over that period had a reasonable, good-faith belief that he was
the child’s biological father, based on marriage to the mother or
on the actions or representations of the mother, and fully accepted
parental responsibilities consistent with that belief, and
(B) if some time thereafter that belief no longer existed, continued
to make reasonable, good-faith efforts to accept responsibilities as
the child’s father; or
(iii) lived with the child since the child’s birth, holding out and accepting
full and permanent responsibilities as parent, as part of a prior co-

5
The Majority asserts that, “[d]espite 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[.]” Maj. Op. at 43 n.18. However, one searches J.B.R. in vain for any
substantive analysis bearing on the question of one-parent versus two-parent consent.

- 17 -
 parenting agreement with the child’s legal parent (or, if there are two
legal parents, both parents) to raise a child together each with full
parental rights and responsibilities, when the court finds that
recognition of the individual as a parent is in the child’s best interests;
or
(iv) lived with the child for at least two years, holding out and accepting
full and permanent responsibilities as a parent, pursuant to an
agreement with the child’s parent (or, if there are two legal parents,
both parents), when the court finds that recognition of the individual
as a parent is in the child’s best interests.

ALI Principles § 2.03(1)(b).

The ALI Principles’ definition of a de facto parent is substantially similar to the one

we adopted in Conover. Under the ALI’s definition, a de facto parent is “an 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.

Id. § 2.03(1)(c).

Notably, the ALI’s definition of a parent by estoppel based on the existence of a

prior agreement (§§ 2.03(1)(b)(iii) and (iv)) explicitly refers to the agreement having been

made with both legal parents, if there are two legal parents. In contrast, the text of the

definition of a de facto parent does not refer to “both parents.” Rather, § 2.03(c)(ii) refers

to the formation of a parent-child relationship with “the agreement of a legal parent” or “as

- 18 -
a result of a complete failure or inability of any legal parent to perform caretaking

functions.” Thus, as I read the definitions in the ALI Principles, the ALI distinguishes

between a parent by estoppel and a de facto parent with respect to the consent necessary to

create these different types of third-party parent. In this regard, it is telling not only that the

definition of a de facto parent uses the singular when referring to the agreement of “a legal

parent,” but also that it uses the singular when addressing the “complete failure or inability

of any legal parent to perform caretaking functions.” (Emphasis added). That is, if neither

of two legal parents consents to the formation of a parental-type relationship, but the

relationship nevertheless arises due to the “complete failure or inability” of the legal parent

with whom the third party lives to perform caretaking functions, the ALI Principles will

recognize the third party as a de facto parent (assuming the other necessary conditions are

met). Suppose, for example, that D.D. had not fostered a parental-type relationship between

T.R. and the children before 2017, but instead of being incarcerated at that time, he was

incapacitated by a stroke, after which T.R. became the children’s primary caregiver,

thereby forming a psychological bond with them. In that instance, according to the ALI’s

definition of de facto parent, T.R. might qualify for de facto parent status, regardless of

whether E.N. had knowledge of or consented to the relationship.

Contrary to the Majority’s interpretation of the comments to the relevant definitions,

I find that the comments provide further support for the conclusion that the ALI views the

consent of one legal parent to be sufficient to potentially confer de facto status. The

comment to § 2.03(1)(b)(iii) explicitly states that, for a parent-by-estoppel relationship to

be created by virtue of a co-parenting agreement, if there are more than two extant legal

- 19 -
parents, “each parent must agree” to the co-parenting agreement. With respect to co-

parenting arrangements that come into effect after the child’s birth, § 2.03(1)(b)(iv) also

requires that, if there are two or more extant legal parents, all such legal parents agree to

the co-parenting arrangement by which a third party agrees to accept “full and permanent

responsibilities as a parent.” Id. cmt. b(iv).

As the Majority notes, in the introductory portion of the comment to the de facto

parent definition, the comment states that the “legal parent or parents must have agreed to

the arrangement” by which the would-be de facto parent formed the parent-child

relationship. Id. cmt. c. Significantly, however, the ALI here does not repeat the phrase

“each parent must agree” that it uses a few pages earlier when discussing the parent-by-

estoppel definition. Moreover, in the portion of the comment specifically addressing

consent, the de facto parent comment does not repeat the phrase “or parents.” Rather, the

comment provides:

(iii) Agreement of a parent to the de facto parent relationship. Like a parent-
by-estoppel status, a de facto parent relationship cannot arise by accident, in
secrecy, or as a result of improper behavior. The agreement requirement of
Paragraph (1)(c)(ii) limits de facto parent status, in most circumstances, to
those individuals whose relationship to the child has arisen with knowledge
and agreement of the legal parent. Although agreement may be implied by
the circumstances, it requires an affirmative act or acts by the legal parent
demonstrating a willingness and an expectation of shared parental
responsibilities….

The only circumstance in which a de facto parent may be recognized without
the agreement of a legal parent is when there has been a total failure or
inability by the legal parent to care for the child. This circumstance exists
only when a parent is absent, or virtually absent, from the child’s life, such
as when a parent has abandoned the child or has been imprisoned or
institutionalized. While some of these circumstances may be considered
beyond the control of the legal parent, they function in the same way to

- 20 -
 permit to develop the kind of long-term, substitute parent-child relationship
that this Chapter seeks to recognize.

Id. cmt. c(iii) (emphasis added).

Finally, the comment explains that, in order to be a de facto parent, the individual

either must have performed the majority share of caretaking functions for the child, or must

have performed a share of caretaking functions that was equal to or greater than that

performed by the parent with whom the child primarily lived. Id. cmt. c(v). With respect

to the second of these possibilities, the comment notes: “An individual who is sharing

caretaking responsibility equally with a child’s only other parent will meet this criterion.

So will an individual who is sharing caretaking responsibility for a child whose parents live

in different households, if the child lives primarily in the household in which that individual

also lives and the individual performs at least as much caretaking responsibility as the

parent in that household.” Id. This part of the comment says nothing about the nonresident

parent necessarily having any knowledge of, or consenting to, the third party’s equal or

greater caretaking role in the household. Nor is such knowledge something that a

nonresident parent would be expected to have. However, the third party’s share of

caretaking functions in the household is something the resident parent would know about

and consent to. In my view, this is key to the creation of de facto parent status, at least

according to the ALI.

Based on the texts of the ALI’s definitions and a careful reading of the relevant

comments, I conclude that the ALI requires a greater showing with respect to consent for

recognition as a parent by estoppel than it does for recognition as a de facto parent. This

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makes sense because, under the ALI Principles, a parent by estoppel has taken on greater

responsibilities than a de facto parent and, as a result, also has greater rights than a de facto

parent with respect to custody.

Whereas a de facto parent has “regularly performed a majority of the caretaking

functions for the child, or … regularly performed a share of caretaking functions at least as

great as that of the parent with whom the child primarily lived,” id. § 2.03(1)(c)(ii),6 a

parent by estoppel, pursuant to a prior agreement with the legal parent(s), has “accept[ed]

full and permanent responsibilities as parent,” id. §§ 2.03(1)(b)(iii) & (iv), including

financial obligations. Full and permanent responsibilities as a parent include performing

“parenting functions,” which the ALI Principles define to include the same “caretaking

functions” a de facto parent has performed, as well as providing economic support,

participating in decisions concerning the child’s welfare, maintaining or improving the

family residence, doing and arranging financial planning and organization, car repair and

maintenance (and other tasks supporting the consumption and savings needs of the

household), and “performing any other functions that are customarily performed by a

6
The ALI Principles define “caretaking functions” as “tasks that involve interaction
with the child or that direct, arrange, and supervise the interaction and care provided by
others,” including (among other things) satisfying the child’s nutritional needs, managing
the child’s bedtime and wake-up routines, caring for the child when sick or injured,
protecting the child’s physical safety, providing transportation, directing the child’s various
developmental needs (such as toilet training and the acquisition of motor and language
skills), attending to the child’s needs for behavioral control and self-restraint (such as by
providing discipline), arranging for the child’s education, communicating with teachers
and counselors, supervising homework, helping the child to develop and maintain
appropriate interpersonal relationships with peers, siblings, and other family members, and
arranging for healthcare providers, medical follow-up, and home health care. Id. § 2.03(5).

- 22 -
parent or guardian and that are important to a child’s welfare and development.” Id. §

2.03(6)(e).

Given the relatively greater responsibilities of a parent by estoppel, the ALI

Principles also provide, in general, relatively greater rights of custody and access to parents

by estoppel than to de facto parents – indeed, the ALI Principles provide parents by

estoppel with rights that are equal to those of legal parents. First, the Principles provide

that legal parents and parents by estoppel who have performed a reasonable share of

parenting functions should receive an allocation of custodial responsibility that is “not less

than a presumptive amount of custodial time set by a uniform rule of statewide

application.” Id. § 2.08(1)(a). There is no similar requirement requiring an allocation of

custodial responsibility to a de facto parent. Second, “[t]he court should presume that an

allocation of decisionmaking responsibility jointly to each legal parent or parent by

estoppel who has been exercising a reasonable share of parenting functions is in the child’s

best interests.” Id. § 2.09(2).7 Third, “[t]he court should not allocate the majority of

custodial responsibility to a de facto parent over the objection of a legal parent or parent

by estoppel who is fit and willing to assume the majority of custodial responsibility unless

(i) the legal parent or parent by estoppel has not been performing a reasonable share of

parenting functions, as defined in § 2.03(6), or (ii) the available alternatives would cause

7
The ALI defines “decisionmaking responsibility” as “authority for making
significant life decisions on behalf of the child, including decisions about the child’s
education, spiritual guidance, and health care.” Id. § 2.03(4). Thus, “[d]ecisionmaking
responsibility is the [ALI Principles’] term for what most states call ‘legal custody.’” Id. §
2.03 cmt. f.

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harm to the child.” Id. § 2.18(1)(a). Fourth, “an allocation that would otherwise be made

to a de facto parent may be limited or denied if, in light of the number of other adults to be

allocated responsibility, the allocation is impractical.” Id. § 2.18 cmt. b.

In sum, the ALI Principles provide that, before a person is recognized as a parent

by estoppel, who is entitled to custodial rights equal to that of a legal parent, both legal

parents must have consented to the co-parenting arrangement that predated the custody

dispute. However, given that a de facto parent is not entitled to the same rights as a legal

parent or a parent by estoppel, a de facto parent need not show that both legal parents

consented to the formation of the psychological bond between the third person and the

child.

For all the above reasons, I would retain the Conover test for de facto parent status

without alteration. There is no sound reason to require that both legal parents consent to a

third party’s formation of a parental bond with a child sharing the same household in order

for de facto parent status to be recognized. As the Majority explains, “de facto parent”

means “parent in fact.” Maj. Op. at 1. Nothing in the Majority Opinion can change the fact

that a meaningful and psychologically important parental-type bond can be formed with

the consent of only one legal parent.

The Majority’s holding requiring that both legal parents consent to the relationship

in order to prevent one of the parents from severing that bond inevitably will result in

judicial determinations that harm children. In my view, the better course of action is to

allow the circuit court, regardless of whether one or both of a child’s legal parents

consented to the parental-type relationship, to consider all the facts and circumstances of

- 24 -
each case and allocate custody among legal parents and de facto parents in furtherance of

the best interests of the child. This is in accord with the principles stated in Taylor v. Taylor

and other Maryland cases that have recognized that the best interests of the child take

precedence over all other interests, including a legal parent’s liberty interest in raising a

child. See, e.g., Taylor, 306 Md. at 303; Boswell, 352 Md. at 219; see also ALI Principles

§ 2.02 cmt. b (noting that the primary objective of the Principles’ Chapter on custodial and

decisionmaking responsibility is “serving the child’s best interests. The priority of the

child’s interests over those of the competing adults is premised on the assumption that

when a family breaks up, children are usually the most vulnerable parties and thus most in

need of the law’s protection.”). Regrettably, the Majority loses sight of that goal through

its overemphasis of the rights of a nonconsenting parent.

II

Applying the Conover test without alteration, I would affirm the Court of Special

Appeals’ holding that T.R. is a de facto parent to G.D. and B.D. It is undisputed that D.D.,

a legal parent to the two children, consented to and fostered the parental relationship

between T.R. and the children. That is sufficient to establish the first part of the H.S.H.-K.

test as adopted in Conover. It is undisputed that T.R. meets all the other parts of the H.S.H.-

K. test. That is, T.R. lived with G.D. and B.D. in the same household; she assumed

obligations of parenthood by taking significant responsibility for the children’s care,

education, and development, including contributing towards their support, without

expectation of financial compensation; and she fulfilled this parental role for a length of

time sufficient to have established with the children a bonded, dependent relationship,

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parental in nature. See Conover, 450 Md. at 74.

Although generally it is appropriate to afford a preference to legal parents in the

allocation of legal and physical custody when the dispute is between a legal parent and a

de facto parent, see ALI Principles §§ 2.08(1)(a), 2.09(2) & 2.18(1)(a), that preference does

not apply when the legal parent has not been “exercising a reasonable share of parenting

functions.” See id. § 2.18 cmt. b. Because it is clear from the record that E.N. voluntarily

absented herself from the children’s lives for more than two years after they moved in with

D.D., and indeed largely was an absent parent for the two years preceding their move, the

circuit court’s allocation of legal and physical custody between E.N. and T.R. was

reasonable.8 The Court of Special Appeals summarized some of the trial court’s “salient

8
Although the Majority’s discussion of implied consent is not germane to the issue
that causes me to dissent, I do have concerns about the Majority’s treatment of implied
consent. It seems that the Majority would require that, unless a legal parent has abandoned
a child, to establish implied consent the putative de facto parent must show that the legal
parent had actual knowledge of the identity of the de facto parent and the nature of the de
facto parent’s relationship with the child. That sets too a high a bar for a finding of implied
consent in this context. In my view, a legal parent gives implied consent to the formation
of a de facto parental relationship where, as in this case, the legal parent for a significant
period of time “voluntarily absented himself from [the children’s lives],” J.B.R., 336 P.3d
at 654, leading to the foreseeable result that the other legal parent’s partner filled the void
left by the legal parent. As the Majority notes, the circumstances of this case differ from
those of J.B.R., see Maj. Op. at 64, but only by degrees. To be sure, the biological father in
J.B.R. chose not to have a relationship with his daughter for over a decade, whereas, here,
the record reflects that E.N. was effectively an “absent mother” for approximately two to
four years. As E.N. reasonably should have foreseen, however, that was more than enough
time for D.D.’s romantic partner to fill the maternal void that E.N. had left in her children’s
lives, if the partner chose to do so and if the children accepted her in a maternal role. Thus,
I agree with the Court of Special Appeals that E.N.’s course of conduct at least “arguably
manifests … implied consent.” E.N., 247 Md. App. at 247 n.11. The Majority’s contrary
determination will encourage legal parents in similar situations in the future to deliberately
fail to learn details concerning their child’s relationship with the other legal parent’s

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findings” in the best-interests analysis, “none of which [E.N.] challenges on appeal”:

• T.R. is a “wonderful mother,” while [E.N.] “needs advice and guidance on
daily parenting responsibilities.”

• Although T.R.’s request for custody is sincere, “the [c]ourt is less than
convinced of [E.N.’s] sincerity.”

• The children expressed clear preference to live with T.R., and they told the
court that “they felt abandoned by their mother” and saw T.R. as “their ‘real’
mother.”

• The children have developed friendships “in the neighborhood and school”
while living with T.R., and they are thriving in school with T.R.’s assistance.
[E.N.], on the other hand, “has trouble knowing and obtaining information
about the children’s activities,” and “does not assist the ... children with their
homework.”

• T.R. is an “integral part” of the children’s lives and the “children have
bonded and established a parent-child relationship with her.”

E.N., 247 Md. App. at 251-52. The Court of Special Appeals “discern[ed] no abuse of

discretion in the court’s decision to award primary physical custody of the children to T.R.”

Id. at 252. I would reach the same conclusion.

Conclusion

The best interests of G.D. and B.D. are not furthered by the Court’s holding allowing

E.N. – who voluntarily absented herself from the children’s lives for more than two years

and who was not an active parent to the children when they lived with her before then – to

sever T.R.’s parental-type bond with the children. T.R. formed that bond with the consent

of their father and gave the children love and stability. T.R.’s bond with G.D. and B.D. is

partner, and later claim insufficient knowledge of the situation to provide implied consent
to the formation of a parental-type relationship.

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a relationship that this Court should respect. It exists. It cannot be ignored. By failing to

give any weight to that bond, the Majority takes a position that necessarily will harm these

two children and others in future cases. I cannot join an opinion that will lead to the

severing of parental-type relationships without first giving a family court the opportunity

to consider whether it is in the best interests of a child to allow a psychological parent to

have some measure of access to the child and, thereby, keep intact the bond that has formed.

Instead, I would hold that the consent of one legal parent is sufficient to establish the

necessary “consent” under the first part of the H.S.H.-K. test.

Chief Judge Barbera has authorized me to state that she joins this opinion.

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