Janice M. v. Margaret K.

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Janice M . v. Ma rgaret K ., No. 12 2, Septe mber T erm 20 06. Op inion b y Bell, C.J . FAMIL Y LAW - DE FACTO PARENTHOOD -VISITATION Maryland law does not recognize de facto parenthood. A legal parent possesses the constitutional rights to govern the care, custody and control of his or her child. A putative de facto parent who seek s visitatio n rights o ver the objec tion of a l egal pare nt is a third party, and, as is requ ired of o ther third parties w ho seek visitation rights, m ust demons trate exceptional circumstan ces as a pre requisite to a court s consideration of the best interests of the child . In the Circu it Court for B altimore C ounty Case No. 03-C-05-001511 IN THE COURT OF APPEALS OF MARYLAND No. 122 September Term, 2006 JANICE M. v. MARGARET K. Bell, C.J. *Raker *Cathell Harrell Battaglia Greene Wilner, Alan M. (Retired, specially assigned) JJ. Opinion by Bell, C. J. Raker, J., Dissents. Filed: May 19, 2008 *Raker, J. and Cathell, J., now retired, participated in the hearing and conference of this case while active members of this Court; after being recalled pu rsuant to the C onstitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion. We decide in this case whether Maryland recognizes de facto parenthood status and, if so, whether a person who satisfies the requirements of that status is entitled to visitation or custody rights o ver the obje ction of a f it, legal parent, 1 without h aving to esta blish that exceptional circum stances warra nting su ch righ ts exist. We sha ll hold that de facto parenthood is not rec ognize d in M aryland. Accordingly, we conclude, in order to overcome the constitutional rights of a legal parent to govern the care , custody, and control of his or her child, even a pe rson wh o would qualify as a de facto pare nt, w ho se eks v isitat ion o r cus tody, must demonstrate excep tional circumstances as a prere quisite to the court s consideration of the best interests of the child as a factor in that decision. In this case, one member of a committed same-sex relationship is seeking custody of, and/or visitation with, the child adopted by the other member of that relationship. Janice M ., the petitioner, and Margaret K., the respondent, were involved in a committed same-sex relationship for approximately eighteen years, during the course of which Janice M. adopted Maya, for whose custod y Margaret M. filed a c omplaint in the Circuit Co urt for Baltimore Cou nty. That court denied Margaret K. s prayer for custody, but, having found that Margaret K. was a de facto parent, granted her visitation. The Court of Special Appeals affirmed that judgmen t. Janice M. v. Margaret K., 171 Md. App. 528, 910 A.2d 1145 (2006). We granted Janice M. s petition for writ of certiorari and Margaret K. s cross petition to consider the 1 The ter m leg al paren t refers to any pa rty who is recogn ized as a parent b y law. See A MERICAN L AW INSTITUTE, P RINCIPLES OF THE L AW OF F AMILY D ISSOLUTION: A NALYSIS AND R ECOMMENDATIONS § 2.03(a), at 107 (softcover ed. 2003). It includes both natural and adoptive parents. standard a trial court shou ld employ when considering visitation and custody matters under the circumstan ces presen ted by this case. Janice M . v. Marga ret K., 396 Md. 524, 914 A.2d 768 (2007). I. Janice M. and Margaret K. are two women who were involved in a committed samesex relationship. T he couple met in 198 6, and, for m ost of the ap proximate ly eighteen years they were together, they lived together in a residence owned by Janice M.. In the summer of 2004, the parties separated and Margaret K. moved out of Janice M. s home. Janice M. desired v ery much to be a mo ther, a sentiment which she often expressed during the course of their relationship. When her attempts to become pregnant by use of in vitro fertilizati on pro ved un succes sful an d after d iscussin g her op tions w ith Ma rgaret K ., 2 Janice M. pursued adoption in India. That pursuit was successful; Janice M. adopted Maya, who, in Dec embe r 1999 , arrived in the United States. Ma rgaret K. did not ever attem pt to adopt Maya in Maryland.3 2 Margaret K. played no role in the formal adoption process. The record indicates that Indian adoption regulations prohibit same-sex couples from ad opting and that M argaret K. s failure to bec ome invo lved in M aya s adoption may have b een due, in part, to this fact. 3 The issue of whether same-sex couples may adopt a child in Maryland has not been briefed in this case and we express no opinion on the issue. Md. Code (1984, 2006 Repl. Vol.), § 5-3A-29 of the Family Law Article prescribes the requirements for adoption. In pertinent part, it provides: (a) Age. Any adult may petition a court for adoption under this subtitle. *** (c) Marital Status. (contin ued...) -2- From the time that Maya arrived in the United States in 1999 until the summer of 2004, when the parties separated, she lived with both Margaret K. and Janice M.. During that time, the parties shared most duties regarding Maya s care. Janice M. and Margaret K. divided the responsibilities for preparing Maya s food, changing her diapers, bathing h er, handling her schooling, addressing her healthcare needs, and performing most other caretaking duties. Following the parties sep aration, M argaret K. in itially saw Maya between three and four times a week. Those visits were largely unsupervised. As the relationship between Margaret K. and Janice M . increas ingly bec ame str ained, J anice M. placed certain restrictions on Marga ret K. s visitation . In Octobe r 2004, Jan ice M. sen t Margar et K. a letter in which she enumerated specific conditions on visitation, Margaret K.: was required to arrange visitation through Ja nice M. ra ther than w ith Maya direc tly; could take Maya only to places that Janice M. approved, could not speak disparagin gly about Janice M., and was required 3 (...continued) (1) If a petitioner under this section is married, the petitioner s spouse shall join in the petition unless the spouse: (i) is separated from the petitioner under a circumstance that gives the petitioner a ground for annulment or divorce; or (ii) is not competent to join in the petition. (2) If the marital status of a petitioner changes b efore entry of a final order, the pe titioner shall amend the petition accord ingly. Further, the Code of Maryland Regulations, COMAR 07.05.03.09(A)(2), prohibits an adoption agency from denying an individual s application to adopt beca use of the applicant s sexual orientat ion. See also COMAR 07.05.0 3.15(C)(2) (noting that the agency may not delay or deny the plac emen t of a ch ild for a doptio n on the basis of . . . sexual orientation ). -3- to inform Janice M. of any people who would accompany Margaret K. dur ing visits . Thereafter, Margaret K. continued unsupervised visitation with Maya approximately twice a week. By Januar y 2005, Margaret K. had become dissatisfied with the prescribed conditions, restrictions, on visitation. A s a result, in that month, Margaret K. s attorney sent Janice M. a letter concerning visitation with Maya. Janice M. responded by denying M argaret K. a ll visitation and prohibiting her all access to Maya. Margaret K. filed a complaint in the Circuit Court for Baltimore County, seeking custody, or, in the alternative, visitation. A t an eviden tiary hearing on the comp laint, Margaret K. testified about her relationship with Maya, as did several of the couple s friends and acqua intance s. At the conclusion of Margaret K. s case, the Circuit Court granted Janice M. s motion for judgment on the issue of custody. As an initial matter, the court determined that Janice M., as an adoptive parent, was entitled to a presumptive right of custody. After finding no evidence as to lack of fitness on the part of [Janice M.], the court considered whether extraordinary circum stances exis ted to overc ome the p resumptio n that Janice M. was entitled to custody of Maya. The Circuit Court concluded as follows: As far as extraordinary circumstances, the circumstances have to be extraordina rily exceptional or compelling, such circumstances as require the court to remove the child fro m the biolo gical paren t in order to protect the child from harm. In reviewing Karen v. Christopher, 163 Md. App. 250, 878 A.2d 646 (2005), I think that case can be distinguished from the f acts of this case. In that case the biological parent abruptly removed the child from the State of -4- Ma ryland mak ing it alm ost im poss ible f or the per son s eeki ng custo dy, Christopher in that case, to comm unicate w ith them. Th e biologica l parent did not allow the child to see Christopher except infrequently with restrictions, including that visitation had to be in her presence. Ba sically, in that case the court found that the biological parent through a pattern of immaturity and selfishness in an effort to elevate her own personal interests took actions w hich actually ren dered the c hild fatherles s to break the bond totally between the father and child. In this case we do have some restrictions being set forth in this October 6th, 2004 letter, but I don t see that those restrictions are anywhere near the level of what was going on in the cited case. In fact , very c learl y [Jan ice M .] is sa ying, I do not want to deny Maya the opportun ity to see you. Yo u have be en allowe d to commu nicate and v isit with Maya each week, etcetera, etcetera. I ve encouraged her to call you, although she may not want to invite you to be part of o ur activities. It s because I love Maya, and I know that she cares about you that you have been granted the opportun ity to visit with her. *** So I think based on this letter anyhow there are rules being set forth, but you don t ha ve a situation where th e child is being taken out of state, and so I don t see that this establishes I don t see where the facts of this case rise to the le vel o f ext raordina ry, exceptional or compelling circumstances or even close. So I m going to grant the motio n as to custody, and we ll proceed on the visita tion issu es. Following the conclusion of all the evidence, the Circuit Court addressed the issue of visitation, concluding that Margaret K. was entitled to visitation. Re lying primarily on the Court of Special Appeals decision in S.F. v. M.D., 132 Md. App. 99, 751 A.2d 9 (2000), the court found that Margaret K. was Maya s de facto parent and, therefore, visitation would be in the best interests of Maya. The court reasoned: -5- Under the case of S.F. v. M.D., since we re dealing strictly w ith visitation right now, having already dismissed the issue of custody at the end of the plaintiff s case, I fin d that the plaintiff is a de facto parent under that case. The four factors are met. The first one being, did the legal parent consent to and foster the relationship between the third party and the child? Clearly, I believe [Janice M .] did do that. There s no question that the second prong is met. The third party must have lived with the child. [M argaret K.] lived with the child for about three and a half years I believe it was. The third factor, the third party must perform parental functions for the child to a significa nt de gree . I thin k tha t s ve ry clea r fro m all the te stimony. *** And then the fourth factor, which the case says is the m ost importan t, is there a parent-child bond that had been forged? I think the evidence is clear that that s occ urred as w ell. *** So I find that the plaintiff is a de facto parent. Ha ving fou nd that in the context of visitation, there th en is no presumption in favor of the biological parent, or he re, the adop tive parent. So then you look at the best interests of the child, and the court finds as a matter of fact that it is in the best interests of the child that there be visitation with the plaintiff . It was not only her testimony, but it was also the testimony of the other witnesses that there is this relationship, and I m finding that it wo uld be d etrimen tal that it b e cut of f totally. Janice M. noted a timely appea l to the Cou rt of Specia l Appeals . The interm ediate appellate court affirmed the judgment of the Circuit Court and its finding that Margaret K. qualified as a de facto parent. The intermediate appellate court explained: -6- In S.F. v. M.D., 132 Md. App. 99, 751 A.2d 9 (2000), Judge James Eyler stated for this Court: In determining whether one is a de facto parent, we employ the test enunciated in In re Custody of H.S.H.-K., 193 Wis.2d 649, 533 N.W.2d 419 (1995), and V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539 (2 000). Under that test, the legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived w ith the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged . . . . Con sequen tly, . . . a non-biological, nonadoptive parent, . . . [who] is a de facto parent, . . . is not required to show unfitness of the biological parent or excep tional cir cumsta nces . . . [to be] entit led to vis itation. Id. at 111-12, 751 A .2d [at 15]. The person who claims to be a child s de facto parent must successfu lly shoulder the burdens of (1) pleading, (2) production of evidence, and (3) persuas ion. We c an take jud icial notice that in almost e very home occupied by adults and children, the adults perform some parental functions on behalf of the c hildren . Unde r the abo ve quo ted test, h owev er, a person who performed parental functions is not entitled to de facto parent status unless the court finds as a fact that the child s legal parent has actually fostered such a relationship. Because the test we adopted in S.F. v. M.D., supra, is a strict one, neither our holding in that case nor our holding in the case at bar will open the floodgates to claims of de facto parenthood asserted by persons who can prove nothing more than that, while living with the natural or adoptive parent of a child, they performed some parental functions on behalf of the child. Rare are the cases like the case at bar, in which the circuit court was presented with evidence that (as sum marized in the argument of M argaret K. s counsel) Maya was with Margare t K. every day of her life in this country until August of 2004 [and] [t]he only reason that Margaret K. has been deprived of the opportunity to have a relationship w ith her daughter is because she wasn t on that decree of adoption. Under these circumstances, there is no merit in Janice M. s argument that the evidence presented to the circuit court was insufficient to support the factual finding that Margaret K. is Maya s de facto parent. -7- Janice M. v. Margaret K., 171 Md. App. 528, 538-40, 910 A.2d 1145, 1152 (2006). The Court of Special Appeals also affirmed the Circuit C ourt s holding that a non-biolo gical, non-adoptive parent, . . . [who] is a de facto parent, . . . is not required to show unfitness of the biological parent or exceptional circumstances . . . [to be] entitled to visitation. Id. at 530, 910 A.2d at 1146-47 (quoting S.F., 132 Md. A pp. at 111-12, 751 A .2d at 15). Janice M. petitioned this Cou rt for a writ of certiorari, which we granted to address the following question: Does an exceptional circumstances standard ra ther than a b est interests standard apply to visitation with a de facto parent? We also granted Margaret K. s cross-petition, which sought resolution of the following questions: 1. Must a de facto parent prove that a legal parent is unfit or that exceptional circumstances exist for the de facto parent to obtain custody of his or h er de facto child? 2. Is a de facto parent entitled to visitation w ith his or her de facto child if it is in the child s best interest? Janice M. v. Margaret K., 396 Md. 524 , 914 A.2d 768 (2007). II. The United States Supreme Court long has recognized that the Due Process Clause of the Fourteenth Amendment protects the rights of parents to direct and govern the care, custody, and contro l of their children . See Troxel v. G ranville, 530 U.S. 57, 69-70, 120 S. Ct. 2054, 2062, 147 L. Ed.2d 49, 58-59 (2000); Santosky v. Kramer, 455 U.S. 745, 753-54, -8- 102 S. Ct. 13 88, 1394-9 5, 71 L. Ed.2d 599, 606 (1982); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed.2d 55 1, 558-59 (1972 ); Prince v. M assachuse tts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645, 6 52 (1944 ); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S. Ct. 571, 573, 69 L. Ed. 1070 , 1078 (19 25); Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S. Ct. 625, 626-27, 67 L. Ed. 1042, 104 4-46 (1923). In Troxel v. Granville , 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed.2d 49, writing for the plurality, Justice O Connor explained as follows: The Fourteenth Amendment provides that no State shall deprive any person of life, liberty, or property, without due process of law. We have long recognized that the Amendment s Due Process Clause, like its Fifth Amendment counterpart, guarantees more than fair process. The Clause also includes a substantive component that provides heightened protection against government interferences with certain fundamental rights and liberty interests. The liberty interest at issue in this case the 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. More tha n 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 [,43 S. Ct. 625, 626-27, 67 L. Ed. 1042, 10 44-46] (19 23), we h eld that the liberty protected by the Due Process Clause includes the right of parents to establish a home and bring up children and to con trol the educ ation of the ir own. Tw o years later, in Pierce v. Society of Sisters, 268 U.S . 510, 534-5 35 [,45 S . Ct. 571, 573, 69 L. Ed. 1070, 1078] (1925), we again held that the liberty of parents and guardians includes the right to direct the upbringing and education of children under their control. We explained in Pierce that [t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligati ons. Id., at 535 [,45 S. Ct. at 573, 69 L. Ed. at 1078]. We returned to the subject in Prince v. Massachusetts, 321 U.S . 158 [, 64 S . Ct. 438, 88 L. Ed. 645] (19 44), and again confirm ed that there is a constitutional dimension to the right of parents to direct the upbring ing of their children. It is cardinal w ith us that the custody, care and nurture of the child resides first in the parents, whose primary function and freedom include preparation for -9- obligations the state can neither supply nor hinder. Id., at 166 [,64 S. Ct. at 442, 88 L. Ed. at 65 2]. In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care , custody, and c ontrol of the ir children. In light of this extensive preceden t, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their chi ldren. Troxel, 530 U .S. at 65- 66, 120 S.Ct. at 2 059-6 0[, 147 L .Ed.2d at 56-57] (some internal citations and quotations om itted). In Troxel, the issue before the Supreme Court was the constitutionality of a Washington statute permitting any third party seeking visitation to subject any decision by a parent concerning visitation of the parent s children to state-court review. Id. at 67, 120 S.Ct. at 2061[,1 47 L.Ed .2d at 57]. T he respon dent, a mother o f two child ren, wante d to limit her children s visits with their grandparents, the parents of the children s deceased father. The trial court orde red visitation o ver the mo ther s objectio n. The W ashington intermediate appellate court reversed and the Washington Supreme Court affirmed in a consolidated opinion, In re Custody of Smith , 969 P.2d 21 (Wash 1998). The W ashington Suprem e Court held the statute invalid on its face on several grounds. First, the court held that the Constitution permits a State to interfere with the right of p arents to rear th eir children o nly to prevent harm or po tential harm to a child and that the statute fa iled that standard because it require d no thr eshold show ing of h arm. Id. at 29. Second, the court concluded that the visitation statute swept too broadly, by allowing any person to petition for forced -10- visitation of a child at any time, with the only requirement being that the visitation serve the best interest of the child. Id. at 30. The W ashington Suprem e Court op ined that p arents have a right to limit visitation of their children with third persons, and that, as between parents and judges, the parents should be the ones to choose whether to expose their children to certain people or ideas. Id. at 31. The United States Supreme Court, in a plurality opinion, affirmed, holding that the Washington statute interfered with the mother s fundamental right to make decisions concerning the care , custod y, and con trol of h er child ren. Troxel, 530 U.S. at 72, 120 S . Ct. at 2063[, 147 L. Ed.2d at 60]. The plurality noted three important factors. First, the trial court had failed to honor the traditional presumption that a fit parent will act in the best interest of his or her child. Id. at 68, 120 S. Ct. at 2061[, 147 L. Ed.2d at 59]. Second, the trial court erred in failing to give special weight to the mother s determination of her children s best interest. Id. at 69, 120 S. Ct. at 2062 [, 147 L. Ed.2d at 58]. Finally, the plurality gave w eight to the fa ct that the children s mother n ever soug ht to eliminate visitation with the gra ndparen ts, but instead a ttempted o nly to restrict the frequency of visits. Id. at 71, 120 S. Ct. at 2062 -63 [, 147 L. Ed.2d at 60]. The plurality declined to define the precise scope of the parental due process right in the visitation context and declin ed to answer the question of whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm. -11- Id. at 73, 120 S. Ct. at 2064, 147 L. Ed.2d at 61. Instead, the Court rested its holding on the sweeping breadth of the Washington statute, stating as follows: In this respect, we agree with Justice Kennedy that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best elaborated with care. B ecause m uch state-co urt adjudica tion in this context occurs on a case-b y-case basis, w e would be hesitant to hold that spe cific nonparental visitation statutes violate the Due Process Clause as a per se matter. Id. (internal citations omitted). Since Troxel, this Court, on several occasions, has addressed a parent s due process rights in the context of custody or visitation. In McD ermott v. D ougherty, 385 Md. 320, 869 A.2d 751 (2005), we resolved a custody dispute betw een a child s father, M cDerm ott, and the child s maternal grandparents, the Doughertys. McDermott and the child s mother had divorced shortly after the c hild s birth. Initially, the child s mo ther had prim ary cu stod y. The mother was unable to continue as custodian, however, when she was sentenced to incarceration. During her time in prison, she placed the child in the care of her parents. McD ermott, who was on a six-month tour of duty as a merchant seaman, initially consented to this arrangement. Upon McDermott s return from sea, however, he sought custody of the child. A custody battle ensued between McDermott and the grandparents. The Circuit Court awarded custody to the grandparents. The court concluded that the child s mother was unfit to have custody, and that, while not unfit, the father was not entitled to custody, it having also determined that his employment in the merchant marine, -12- requiring him to spend months-long intervals at sea, constituted exceptional circumstances as that term was defined in Ross v. Hoffman, 280 Md. 172, 191, 372 A.2d 582, 593 (1977) ... and the best interest of the child and need for a stable living situation thus warranted that custody be placed with the Doughertys, McD ermott, 385 Md. at 324, 869 A.2d at 753. The Court of Special Appeals affirmed. We granted McD ermott s petition for a writ of certiorari to determin e when and und er what circ umstance s, where a fit parent and a third party both are s eeki ng custo dy, it is appropr iate to aw ard c usto dy to the th ird party. We identified three circumstances in which the best interest of th e child standard might arise. The first category involves disputes between fit legal parents, each of whom has equal constitutional rights to parent. The second, and most frequent situation, is in the various types of state proceedings in which the state injects itself into the parenting situation in the role of parens patriae, to protect the child. The third category con sists of the third party custody dispute cases, i.e., those cases in which p ersons othe r than legal p arents or the State attempt, directly or indirectly, to gain or maintain custody or visitation in respect to the children of legal parents.4 As to this category, where the focus is on the standard to be applied when the dispute is between a fit parent and a private third party, we explained: 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 4 We noted that within the third party subset of custody actions, some states have recognized the status of psychological parents, i.e., third parties who have, in effect, become parents. McD ermott v. D ougherty, 385 Md. 320, 356, 869 A.2d 751, 772 (2005) We noted that courts recognizing this status consider the issues according to the standa rds that app ly betwe en lega l parents . Id. -13- 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. Genera lly, absent a constitutional statute, the non-governmental third party has no rights, constitu tional or otherw ise, to rais e some one els e s child . Id. at 353, 869 A.2d at 770. We concluded that before the trial court may consider the best interest of the child test in decidin g a custod y dispute betw een fit pare nts and a third party, the trial court must first find the legal parents unf it to have custody or extraordinary circumstances that could re sult in serious d etriment to the child if that child were to remain in the cu stody of th e paren ts. Id. at 374-75, 869 A.2d at 783. The trial court in McD ermott did not find that the fathe r was an unfit pare nt. Acc ordingly, the only issue to be resolved was whether extraordinary circumstances existed to justify granting custody to the grandparents.5 After noting that it is presum ed that fit parents act in the bes t interests of the ir children an d that a third party seeking custody bears the burden of demonstrating exceptional circumstances, we held that the grandparents had failed to establi sh th e exc eptio nal c ircumsta nces nece ssary to justify a war ding them custody. Id. at 424-25, 869 A.2d at 812-13. The Circuit Court s finding of exceptional circumstances was based on the f ather s e xtende d perio ds at sea . Id. at 324, 869 A. 2d at 753. The time 5 In McD ermott, we held: [U]nder circumstances in which there is no finding of parental unfitness, the requireme nts of a paren t's employmen t, such that he is required to be away at sea, or 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 extraordinary or exceptional circum stances to support the aw arding of cus tody to a th ird party. 385 Md. at 32 5-326, 869 A .2d at 754 (Md .,2005). -14- McD ermott spent at w ork, involun tarily spent away from his child because of the nature of his employment, was insufficient to establish th e exception al circumsta nces nece ssary to award custody to a third party, over his objection.6 Id. at 431-32, 869 A.2d at 816. The bottom line in McD ermott is that, absent a showing of parental unfitness or exceptional circumstances, the constitutional right [of parents to the care, custody, and control of their child ren] is the ultim ate dete rminativ e facto r . . . . Koshko v. Haining, 398 Md. 404, 419, 921 A.2d 171, 180 (2007) (quoting McD ermott, 385 Md. at 418, 869 A.2d at 808). Having concluded that an examination of whether exceptional circumstances exist should precede, and determine the need for, a best interest analysis, we reiterated factors set out originally in Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977), which may be probative in determining the existence of exceptional circumstances: [1] length of time the child has been away from the biological parent, [2] the age of the child when care w as assume d by the third pa rty, [3] the possib le emotional effect on the child of a change of custody, [4] the period of time which elapsed before the parent sou ght 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 a s to the c hild s fu ture in th e custo dy of the parent. McD ermott, 385 Md. at 419, 869 A.2d at 809 (quoting Hoffman, 280 Md. at 191, 372 A.2d at 593). 6 Sign ifica ntly, and appr opriately, the gran dparents seeking cu stody in McDermott v. Dough erty, 385 Md. 320, 869 A.2d 751 (20 05), were considered third parties and treated as su ch in the a nalysis as t o wh ethe r they wer e ent itled to cu stod y. -15- In Koshko v. Haining, 398 Md. 404, 419, 921 A.2d 171, 180 (2007), we revisited the due process rights of fit parents to control the upbringing of their children. That case differed from McD ermott in that the dispute arose when the children s grandparents sought visitation, rather than custody, over the objections of the natural parents. Relying on M aryland s Grandparent Visitation Statute, Md. Code (1984, 2006 Rep. Vol.) § 9-102 of the Family Law Article, the C ircuit Co urt granted visitat ion to the gran dparents. We noted in itially that Maryland s grandparent visitation statute, simply provides that grandparents may petition for reasonable visitation and empowers equity courts to grant such petition s if grandparental visitation is in the best interests of the child. Koshko, 398 Md. at 424, 921 A.2d at 182. In ord er to save the statute from con stitutional infirm ity, we read into the statute a presumption that parental decisions regarding their children are valid, both as mandated by substantive due pro cess an d Ma ryland co mmo n law. Id. at 426, 921 A.2d at 184. We concluded: To preserve fundamental parental liberty interests, we now apply a gloss to the Maryland GVS [Grandparent Visitation Statute] requiring a threshold showing of either parental unfitness or exceptional circumstances indicating that the lack of grandparental visitation has a significant deleterious effect upon the children who are the subject of the petition. We do so under the principle o f constitution al avoidan ce previou sly invoked in this opinion to engraft onto the GVS a parental presum ption. Id. at 441, 921 A.2d at 192-93. -16- As a visitatio n, rather than a c ustody, ca se, Koshko addressed the relationship between custody and visitation, and the principles to be applied in determining visitation between the legal parents and grandparents. We pointed out that visitation is a spec ies of cu stody, albeit for a more limited duration. Id. at 429, 921 A.2d at 185. We explained: There is no dispute that the grant or modification of visitation involves a lesser degree of intrusion on the fundamental right to parent than the assignment of custody. We exce pt from this notion, how ever, that, because of this conceptualization, visitation somehow ranks lower on the scale of values such that its determination does not require the application of stringent tests as is the case with cu stody. In other words, although there may be a difference in the degree of intrusion , it is not a difference of constitutional magnitude. Visitation, like custody, intrudes upon th e fundam ental right of parents to direct the care, cus tody, and con trol of their ch ildren. Tho ugh visitation decisions granting such privileges to third parties m ay tread more lightly into the pro tected g rove of parenta l rights, th ey tread n onethe less. Koshko, 398 Md. at 430-31, 921 A.2d at 186 (internal footnotes omitted). We made clear that visitation matters deserve no less scrutiny than custody matters, any language from previous decisions to the contrary notwithstanding, which language we disapproved, in the proces s. Id. at 431, 921 A.2d at 186. Citing Troxel,7 we stated that, [f]or the purposes of 7 Our hold ing in Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007), was not based solely on the Supreme Court s decision in Troxel v. G ranville, 530 U.S . 57, 120 S . Ct. 2054, 147 L. Ed.2d 49 (2000), or federal due p rocess considerations. It was based also on Article 24 of the Maryland Declaration of Rights. We stated as follows: We are aware that the plurality op inion in Troxel does not compel our holding in this regard in the present case. 530 U.S. at 73, 120 S. Ct. at 2064 [, 147 L . Ed. 2d at 61]. The result reached here illustrates the notion that the extent of protection bestowed upon liberty interests recognized as being enshrined within the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution does not dictate necessarily the full compliment of safeguards exte nded to liberty interests available under the Maryland due (contin ued...) -17- 7 (...continued) proces s analo g foun d in Ar ticle 24 o f the M aryland D eclaratio n of R ights. Koshko, 398 Md. at 443-44, 921 A.2d at 194. We continued: Our precedent states clearly that the Maryland and Federal due process provisions have been read in pari materia. Pickett v. Sears, Roebuck & Co., 365 Md. 6 7, 77, 77 5 A.2d 1218, 1224 (2001 ); Pitsenberger v. Pitsenberger, 287 Md. 20, 27, 410 A.2d 1052, 10 56 (1980); Allied Am. M ut. Fire Ins. Co. v. Comm r of Motor Vehicles, 219 M d. 607, 615-16, 150 A.2d 421, 426-27 (1959). This princip le of readin g the prov isions in a like m anner do es not, however, reduce our analysis to a mere echo of the prevailing Fourteenth Amendment jurisprudence. Aero Motors, Inc. v. Motor Vehicle Admin., 274 Md. 567, 587, 337 A.2d 685, 699 (1975) ( Although Art. [24] of the Maryland Declaration of Rights has long been equated with the due process clause of the Fourteenth Amendment by judicial construction and application, the two provisions are not synonymo us. ); see also William J. Bren nan, Jr., State Constitutions and the Pr otection of Individual R ights, 90 Ha rv. L. Rev. 489, 491 (1977) ( [S]tate courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Su preme Court s interpr etation o f fede ral law. The legal revolution which has bro ught fede ral law to the fore mus t not be allow ed to inhibit the independent protective force of state law for without it, the f ull realization of our liberties cannot be guaranteed. ). We have not hesitated, where deemed appropriate, to offer a different interpretation of the Maryland provision. For exam ple, see Dua v. C omcast C able of Maryland, Incorporated, 370 Md. 6 04, 621 , 805 A .2d 106 1, 1071 (2002 ) (catalo guing c ases). See also Borchardt v. State, 367 M d. 91, 17 5, 786 A .2d 631 , 681 (2 001) (R aker, J., dissenting) ( Although this Court has generally interpreted Article 24 in pari materia with the Due Process C lause of the Fourteen th Amendment, we have interpreted it more broadly in instances where fundamental fairness demanded that we do so. ). Judge Raker s dissent in Borchardt cited some example s in the criminal context, such as placing stricter limits on prosecutorial discretion to enter nolle prosequi and the optional merger of crimina l offen ses. Id. We have also read Maryland s due process clause more broadly than the federal constitution in granting the right to counse l, see Rutherford v. R utherford, 296 Md. 347, 358, 363, 464 A.2d 228, 234, 237 (1983), cited in Das v. Das, 133 Md. App. 1 , 28, 754 A.2d 4 41, 456 (2000), and the protection from self-incrimination, Choi v. State, 316 Md. 529, 535 n. 3, 560 A.2d 1108, 1111 (contin ued...) -18- constitutional analysis, parenta l autonom y is encroached upon equally by visitation matters as it is with custod y disputes wh en the state interference is direct and substantial. Id. at 434, 921 A .2d at 18 9. McD ermott made clear that parental unfitness and exceptional circumstances are thresho ld consider ations in third p arty custody determ inations; Koshko made clear that those considerations apply in third party visitation disputes. Because we decided that the grandparent visitation statute had been unconstitutionally applied to the Koshkos in the absence of a threshold finding of parental unfitness or exceptional circumstances, we rem anded the case to the Circuit Court for further proceedings consistent with ou r opinio n. III. With this aspect of our custody and visitation jurisprudence as backg round an d firmly in mind, we turn to the issue presented in this case whether, when the party asserting visitation rights meets the requiremen ts for de facto parent status, a court, without first finding exceptional circumstances or parental unfitness, may apply the best interests of the child standard. The term de facto parent ha s a literal mean ing, paren t in fact. It is used generally to describe a party who claims custody or visitation rights based upon the p arty s 7 (...continued) n. 3 (19 89). Koshko, 398 Md. at 444 n.22, 921 A.2d at 194-95 n.22. -19- relationship, in fact, with a non-biological, non-adopted child.8 The American Law Institute, which has promulgated principles governing the allocation of custodial and decision-making responsibilities for children, defines de facto parent as follows: [A]n individual other than a legal parent or a parent by estoppel w ho, for a significant period of time not less than two years, (i) lived with the child and, (ii) for reason s primarily other th an financ ial compe nsation, and with the agreement of a legal parent to form a parent-ch ild 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 w hom th e child p rimarily live d. A MERICAN L AW INSTITUTE, P RINCIPLES OF THE L AW OF F AMILY D ISSOLUTION: A NALYSIS AND R ECOMMENDATIONS § 2.03(1)(c), at 107-08 (sof tcover ed. 2003). Relying on S.F. v. M.D., 132 Md. App. 99, 751 A.2d 9, the trial judge in the instant case found that Margaret K. is Maya s de facto parent and, therefore, granted Margaret K. visitation. Janice M. urges this Court to reject the concept of de facto parenthood as it may 8 Often the term de facto parent is used interchangeably with the terms in loco parentis and/or psychological parent. See In re Parentage of L.B., 122 P.3d 161, 167-68 n.7 (Wash. 2005). W hile these designations are relat ed, th ey are not a lways, or n eces sarily, identical in mea ning. In loco parentis literally means in the place of a parent, an d refers to a party [a]cting as a temporary guardian of a child. B LACK S L AW D ICTIONARY 791 (7th ed. 1999). The term psycholog ical parent is based primarily in social science theory, and refers to a party who has a parent-like relationship with a child as a result of day-to-day interaction, companionship, and shared experiences. JOSEPH G OLDSTEIN , A NNA F REUD, A LBERT J. S OLNIT , B EYOND THE B EST INTERESTS OF THE C HILD , 19, The Free Press, Simon & Schuster, Inc. (197 3). -20- bear on custody or visitation determinations, overrule S.F. v. M.D., and hold that all persons other than legal parents are to be treated as third parties, as our holdings in McD ermott and Koshko suggest, if not direct. Under Janice M. s interpretation of McD ermott and Koshko, a de facto parent is entitled to no greater consideration than any other non-parent, biological or adoptive, and, thus, shou ld, or wou ld, be treat ed no dif fere ntly th an an y othe r third party. Con sequ ently, before the best interest of the child factors may be considered in a visitation case between a legal parent and a de facto parent, the trial court would need to find that the legal parent is unfit to have custody or that there are extraordinary circumstances posing serious detriment to the child if tha t child were to remain in the custody of the legal pare nt. Janice M. argues that all third parties, including those that qualify as de facto parents under the standard enunciated by Court of Special A ppeals, mu st demon strate either that a legal parent is unfit or that extraordinary circumstances exist to justify granting that third party visitation rights over the leg al parent s ob jections. Ac cording to Janice M., because the Circuit Court fo und her to be a fit paren t, the only way that c ourt properly could have required visitation over her objection was by finding extraordinary circumstances. Because the court stated explicitly that extraordinary circumstances did not exist, she contends that the court erred in granting visitation to Margaret K. Janice M . contends th at the liberty interest of a parent in controlling the upbringing of her child mandates that conclusion and, moreover, requires the result she seeks. -21- Margaret K. responds that, once a court has determined that a person is a de facto parent, it has in fact, found the exceptional circumstances necessary to grant either visitation or custod y. Indeed, she argues that the Court of Special Appeals test demonstrates extraordinary circumstances and, therefore, that the Circuit Court was correct to grant her visitation on the bas is of the bes t interests of the child standard. Margaret K. argues also that there is no constitu tional bar to the analysis in which the Circuit C ourt and the intermediate appellate court engaged or to the determination that they reached. In fact, she continues, the de facto parenthood standard is necessary to protect a child s constitutional interest in maintaining a relationship w ith her de facto parent. This Court has not yet addressed the concept of de facto parenthood in the context of either a custody or visitation dispute. Accordingly, we have never determined what legal status, if any, a person has vis-a-vis a non-bio logically related o r non-ado pted child, w ith whom he or she has established a relationship meeting the requirements of a de facto parent, whether, in other words, such a person must demonstrate that a legal parent is unfit or that exceptional circumstances exist to justify custody or visitation rights, when the parent objects. As we have seen, the Court of Special Appeals has considered the concept, as well as the status, of a de facto parent in the context of visitation rights in the case of S.F. v. M.D., 132 Md. A pp. 99, 7 51 A.2 d 9 (2000). It did so, however, prior to the Supreme C ourt s decision in Troxel, and our decisions in McD ermott and Koshko. That case w as a dispute -22- between two women, S. F., and M.D., who had lived togeth er in a com mitted dom estic relationship for six years, from 1991 until 1997. While their relationship was on-going, M.D. gave birth to a child, conceived by means of artificial insemination. The parties separated three year s therea fter. Following the separation, M.D. denied S. F. visitation with the child. S. F. responded by filing suit for custody, or, in the alternative, visitation. The trial court found that S. F. was entitled to neither, and S. F. noted a timely appeal to the Court of Special Appeals, in which she challenged the court s ruling on the issue of visitation. The Court of Special Appeals observed , as a thresho ld matter, that a th ird party seeking custody will prevail only if that party demonstrates that a legal parent is unfit or that exceptional circum stances exist. Id. at 110-111, 751 A.2d at 15. The intermediate appellate court held, how ever, that neith er showin g is nece ssar y to grant visitation where the third party is a de facto parent to the child.9 Id. at 111-12, 751 A.2d at 15. After acknowledging that the Supr eme Co urt of the U nited States and the Court of Appeals of Maryland have recognized that a natural parent has a fundamental right regarding the care and custody of his or her child, id. at 109, 751 A.2d at 14, the Court of Special Appeals determined that [n]evertheless, the best interest o f the child m ay take preced ence ove r a parent s libe rty interests in a custody, visitation, or adoption dispute. Id. Expressing uncertainty as to the character of the pare ntal right at stake when th e issue invo lves visitation rights rather than 9 S.F. v. M.D., 132 Md. App. 99, 751 A.2d 9 (2000) is of limited usef ulness to appellee s argument that a de facto parent is a unique status because the Court of Special Appeals conclude d in S.F. that a de facto parent, such as appellant, is a third party. 132 Md. App. at 114, 751 A.2d at 16. -23- custody or the termination of pare ntal righ ts, id. (quoting Wolinski v. Browneller, 115 Md. App. 285, 302, 693 A.2d 30, 38 (1997)), the court concluded that a natural parent does not have a constitution al right to den y all visitation, if visitation would b e in the best interest of the child. S.F., 132 Md. App. at 109, 751 A.2d at 14. To determine whether a person is a de facto parent, the Court of Specia l Appeals adopted the test set out by the Wisconsin Su preme Cou rt in In re Custody of H.S.H-K., 533 N.W.2d 419 (Wis. 1995), and the New Jers ey Supreme Court in V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000). Under the Wisconsin and New Jersey test, the establishment of de facto parenthood requires a petitioner to prove the following four elements: (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 the obligations of parenthood by taking significant responsibility for the child s ca re, education and deve lopment, including contributing towards the child s support, without expectation of financial compensation [a petitioner s contribution to a child s support need not be monetary]; and (4) that the petitioner has been in a pa rental role for a length of time sufficient to have established with the child a bonded, depen dent rela tionship parenta l in natur e. V.C., 748 A.2d at 551 (quoting In re Custody of H.S .H-K., 533 N .W.2d at 421) . Applying that test, the Court of Special Appeals concluded that because S.F. qualified as a de facto parent, she was not required to show unfitness of the biological parent or the existence of exceptional circumstances making an award of visitation rights in the child s be st interest. S.F., 132 M d. App . at 111- 12, 751 A.2d a t 15. -24- We will not recognize de facto parent status, as set forth in S.F.., as a legal status in Maryland. We refuse to do so because, even assuming arguendo that we were to recognize such a status, short-circu iting the requ irement to sh ow unf itness or exc eptional circumstances is contrary to Maryland jurisprudence, as articulated in McD ermott and Koshko. Even were we to reco gnize some form of de facto parenthood, the real question in the case sub judice will remain, whether, in a custody or visitation dispute, a third party, nonbiological, non-adoptive parent, who satisfies the test necessary to show de facto parenthood should be treated differently from other third parties. We have not been persuaded that they should be. In other words, where visitation or custody is sought over the objection of the parent, before the best interest of the child test comes into play, the de facto parent must establish that the le gal pare nt is eithe r unfit o r that exc eptiona l circum stances exist. A fair reading of McD ermott and Koshko leads to no other conclusion. We reiterate what we said in McD ermott: In balancing the court-created or statutorily-created standards, such as the best interest of the child test, with fun damenta l constitutiona l rights, in private custody [and visitation] actions involving private third-parties where the parents are fit, absent extraordinary (i.e., exceptional) circumstances, the constitutional right is the ultimate determina tive factor; an d only if the pa rents are unfit or extraordinary circumstances exit is the best interest of the child test to be consid ered . . . . McDerm ott, 385 Md. at 418-19, 751 A.2d at 808-09. Clearly, in light of McD ermott and Koshko, S.F. no longer reflects Maryland law, and accordingly, is overruled. -25- The visitation dispute in this case arises in the context of two women. We are mindful of the extensive literature in the law reviews on the issue of visitation rights for same-sex partners whe n the ir relation ship s hav e term inate d and esp ecia lly the difficulties, in some states, that same-sex partners experience when custody or visitation is at issue. The issues inherent in this disagreement, however, are not limited to same-sex couples and could arise in a myriad of other circumstances, including disputes involving step-parents, grandparents, and parties in a relationship with a significant other. At oral argument, we inquired of the parties, whether the fact that the parties were of the sa me sex in the case b efore the Court should have any bearing on our analysis. Neither argued that it should. Janice M . would embrace a single test for all third parties and would give no special consideration to same-sex partners. Margaret K., when asked, also did not argue for a different test for same-sex couples. Indeed, sh e acknow ledged tha t, while there is no ex plicit legal or statu tory authority in Maryland for adoption under the circumstances presented herein, she could have petitioned to beco me a se cond-p arty adop tive pare nt to M aya. We are mindful as well that several of our sister states have created third party visitation statutes that gra nt de facto parents visitation despite objections from the legal parents. See SooHoo v. Johnson, 731 N.W.2d 815 (M inn. 2007) ; Rubano v. DiCenzo, 759 A.2d 959 (R.I. 2000). In SooHoo, 731 N.W.2d 815, the Minnesota Supreme Court considered such a statute, Minn. Stat. § 25 7C.08, subd. 4 (200 6).10 Determin ing that the 10 Minn. Stat. § 257C.08, subd. 4 (2006) provides: (contin ued...) -26- statute was constitutional on its face, 731 N. W. 2d at 818, the court upheld the trial court s decision to grant visitation to a thir d pa rty, who stood in loco parentis to the children who were the subject of the visitation action, over the objections of the children s adoptive mothe r. The Minne sota statute pe rmits a court to grant reaso nable visitation to a person with whom the child has resided for at least two years. The dispute in SooHoo arose after two women, SooHoo a nd Johnson, end ed a long-term sam e-sex relationship. The cou ple s relationship lasted twenty-two years and, prior to their separatio n, they had lived together in a home they owned jointly. During that time, Johnson adopted two children from China. SooHoo did not attempt to adopt either child. The Minnesota Supreme Court noted, however, that Johnson and SooHoo co-parented the children, recognized themselves as a 10 (...continued) If child has resided with other person. If an unm arried mino r has resided in a household with a person, other than a foster parent, for two years or more and no longer resides with the person, the person may petition the district court for an order granting the person reasonable visitation rights to the child during the child's min ority. The cour t shall grant the petition if it find s that: (1) visitation rights would be in the best interests of the child; (2) the petitioner a nd child ha d established emotional ties creating a parent and child relationship; and (3) visitation rights would not interf ere with the relationship between the custodial parent and the child. The court shall consider the reasonable preference of the child, if the court consid ers the c hild to b e of su fficien t age to e xpress a prefe rence. -27- family unit with two mothers, and represented themselves to others as such. SooHoo, 731 N.W.2d at 818. Following the couple s separation, SooHoo petitioned for sole physical and legal custody of the children or, in the alternative, visitation. The trial court awarded visitation under Minn esota s t hird pa rty visitation statute, M inn. Sta t. § 257C.08, subdivision 4 (2006). The Minnesota Supreme Court affirmed, holding the statute con stitutiona l. SooHoo, 731 N.W .2d at 821. Applying strict scrutiny analysis, the Court noted initially that the government possesses a compelling interest in promoting relationships among those in recognized family units (for example, the relationship between a child and someone in loco parentis to that child) in order to protect the general welfare of ch ildren. Id. at 822. Viewing the statute as a narrowly tailored one, the Court stated: [W]e note that sec tion 257C .08, subdivis ion 4, is, on its fa ce, more n arrowly drawn than the Washington statute at issue in Troxel. The W ashington statute allowed c ourts to award visitation to any person at any time so long as it was in the child s best interests. In contrast, section 257C.08 , subdivision 4, limits the class of individuals who may petition for visitation to those persons who have resided with the child for two years or more (ex cluding foster parents). In addition to that threshold requirement, the statute further narrows the class of those who may be awarded visitation to petitioners who have established emotional ties creating a parent and child relationship. Minn. Stat. § 257C.08, subd. 4(2). We read this requirement as mandating that the petition er stand in loco parentis with the child. . . . Therefore, unlike the statute a t issue in Troxel, the requirements that the petitioner have resided with the child for two or more years and have a parent-child relationship with the child substantially limits the class of in dividuals who may successfully petition for visitation . [11] 11 The Minnesota Supreme Court did strike down, as unconstitutional, subd. 7 of Minn. Stat. § 257C.08 (20 06). That portion of the statute was constitutionally deficient (contin ued...) -28- SooHoo, 731 N.W.2d at 822-23. The Court held: Because Minn. S tat. § 257C.08, subd. 4, limits the class of individu als who may be granted third-party visitation to those who have a longstanding parent-child relationship with the child and prohibits the district court from granting visitation if the v isitation is not in the child s best interest or interferes with the custodial parent s relationship, and because we conclude that the petitioner has the burden of proof by clear and convincing evidence, we also conclude that it is narrowly drawn to the state s compelling interest in protecting the general welfare of children by preserving the relationships of recognized family units. We therefore hold that Minn. Stat. § 257C.08, subd. 4, is not u ncons titutiona l on its fa ce. SooHoo, 731 N.W.2d at 824. Whether the Maryland General Assembly chooses to enact legislation similar to the Minne sota statute at issue in SooHoo is within its prerogative, of course, and we express no view, in the abstract, as to any such statute s constitutionality, either under the federal constitution or under Article 24 of the Maryland Declaration of Rights. Margaret K. ma intains, o n the oth er hand , that this Court has recognized de facto parenthood status as a subset of exceptional circumstances. Citing Monroe v. Monroe, 329 Md. 758, 621 A.2d 898 (1993), she argues that the putative father in that case satisfied the requireme nts for exceptional circumstances because he was a de facto parent. Margaret K. misreads Monro e. In Monroe, we determ ined that there was am ple eviden ce to supp ort a 11 (...continued) because it failed to place the burden of proof on the p arty seeking visitation. The Court opined that the petitioner seeking visitation is required to prove the requirements of subd. 4 of Minn. Stat. § 257C .08 (20 06) by cle ar and c onvinc ing evid ence. SooHoo v. Johnson, 731 N.W.2d 81 5, 824 (Minn. 20 07). -29- finding of the exceptional circumstances necessary to overcome the legal paren t s presumptive right to control her child s upbringing. We did not determine or conclude that a person who qualifies as a de facto parent is not req uired, per se, to establish exceptional circumstances. In Monroe, the mother and putative father of a child, Beth, were involved in a custody dispute following their divorce. The putative father, who had n ot been married to B eth s mother at the time of conception, and, therefore, was not presumptively the child s father, had believed h e was B eth s biological father from the time of her birth. That he was not Beth s presumptive father became important during the custody dispute, when Beth s mother sought, and the putative father submitted to, a blood test, which proved he was not the child s biological fath er. T he putati ve fa ther nevertheless sou ght c usto dy, and the master presiding over the evidentiary hearing recommended that the putative father be aw arded temporary custody of Beth. Both parties noted exceptions to the master s recommendation. The putative father challenged the admissibility of the blood test, and the biological mother challenged the custody recommendation. The Circuit Court rejected the master s findings and found, as a matter of law, that exceptional circumstances did not exist to overcome the presumption that the child s best interests were served by remaining with her biological mother. On appeal, this C ourt reite rated the w ell-settled pro posi tion that, as a third party, Beth s putative fath er was en titled to custody on ly if exceptiona l circumstan ces existed to -30- rebut the presumption that custody belong ed with the fit bio logical p arent. Id. at 773-74, 621 A.2d at 905. We then reversed the trial court s finding that exceptional circumstances had not been sh own, holdin g, instead, that there was am ple evidence to supp ort the master s determination that exceptional circumstances existed in this case to rebut the presumption that Beth s best interests lay with being in the custody of her mother. Id. at 777, 621 A.2d at 907. We reasoned: In the present case, tha t the respon dent is not B eth s father is o nly fortuitous. Prior to her birth, having been told, and after investigation, having come to believe, that she was his child, he allowed his name to be placed on the birth certificate as her father and proceeded to act as her father. He was present in the delivery room when she was b orn and h e lived with her and her mother, w ith the excep tion of perio ds of sepa ration, both before and after he married her mother, from the time of Beth s birth. He ha s, in short, treated the child as if she were his biological child from the time of her birth up to, and beyond, the determination that [s]he is not. From the time of h er birth, until rece ntly, and then o nly for a short tim e, Beth lived in Baltim ore Co unty. For much of that time, she lived with the petitioner and the respondent. Even when she was placed in the physical custody of the petitioner, th e respond ent, pursuant to the separation agreement, exercised liberal visitation. Indeed, he had joint cus tody with the petitio ner. The evidence at the hearing further tended to prove that the child v iewed the responde nt as her fath er; she is bonded to him, and he to her. A ccording to Dr. Leo n Rosenberg , the respondent is Beth s p sychological father. *** On the other side of the ledger, aside from the relationship between Beth and the petitioner, no evidence was presented concernin g what Beth s living arrangem ents wou ld be were custody to be transferred to the petitioner. Nor was there evidence presented as to the relationship that exists between Beth a nd her m other s p aramo ur. Id. at 776-77, 621 A.2d at 906-07. -31- Althoug h we no ted in Monroe that a psycholo gical bond may form b etween a child and a third party, we did not suggest that this bond alone necessarily will overcome the right of the legal parent to custody and control over visitation. No r did we c onclude th at de facto parent status necessarily overcomes such parental rights. Monroe simply is not inconsistent with our holdings in McD ermott and Koshko, or our ho lding tod ay. Monroe was based on an analysis of the record as a whole. In light of the facts before the Circuit Court, we observed that a trier of fact could find, as the master did, exceptional circumstances. Id. at 777, 621 A.2d at 907. We acknowledged, however, that the issue could not be resolved as a matter of law. On that point, we observed: We do not, of course, express any opinion as to the ou tcome of this custody matter. We do not wish to suggest that, on remand, custody could not be awarded to the petitioner; it certainly could. We simply wish to provide guidance for the trial court in addressing the issue of permanent custody. We want to make c lear that, using its independ ent judgm ent, the cour t has to determine whether the circumstances of this case are sufficiently exceptional as to rebut the presumption that cus tody shou ld be aw arded to the petitio ner. Id. Our guidance to the Circuit Court was that it was to con sider the totality of th e facts to determ ine wh ether ex ception al circum stances existed . As Margaret K. notes, one of the key issues befo re the court in Monroe was the psychological bond between the child and father. We emphasized, however, the putative father s belief that he was the child s biological father from the ti me o f her birth . We note d tha t upo n lea rning of her p regn ancy, the child s mother had taken a voice stress analysis test to prove that the putative father was -32- the child s actual parent. The mother passed tha t test and, as a re sult, the putative father took part in the birthing process and placed his name on the child s birth certificate as her father. The couple lived together with the child from the time of her birth until nearly four years later. During that time they married. When the couple divorced, they agreed in the separation agreeme nt, to joint custo dy of the child born to the parties prior to th eir marriag e, that the primary residence of the child would be the [mother s], and that the [father] would have visitation rights. Id. at 761, 6 21 A.2 d 899. Even after the blood tests revealed that the putative father was not the child s biological parent, he continued to fight for visitation and custody. We noted that in such a situation, the putative father might even have been equitably estopped12 from disclaiming his paternal obligations: Where a man pro vides supp ort and care to a child believing, as a result of the mother s representations, that he is the child s father and, thereafter, after being told and, indeed, efforts have been made to prove that he is not, he continues to insist that he is, it is quite likely that he will be deemed to be 12 Equitable estoppel in the context of child support proceedings has been app lied in some states to prevent a party from refusing to pay child supp ort after he o r she has he ld himself or herself out to be the parent of a child. See e.g., Shondel J. v. Mark D., 853 N. E.2d 610 (N.Y. 2006). The concept is not, however, the equivalent of parenthood by estopp el. Parentho od by estopp el preven ts one legal p arent from denying a pa rty visitation or custody rights where the legal parent previously has taken affirmative steps or actions to treat that party as the actual parent of his or her child . Compare A MERICAN L AW INSTITUTE, P RINCIPLES OF THE L AW OF F AMILY D ISSOLUTION: A NALYSIS AND R ECOMMENDATIONS § 2.03(b), at 107 (softcov er ed. 2003) and § 3.03, at 41 2. While equitable estoppel and the doctrine of parenthood by estoppel may be related concepts, one does not follow necessarily from, or equate to, the oth er. See Van v. Z ahorik, 575 N.W.2d 566, 572 (Mich . Ct. A pp. 1997 ) (refusing to find that a p arty who co uld be equ itably estopped from denying child sup port would necessarily satisfy Michigan s equitable parent doctrine). But cf. § 2.03(1)(b)(i), at 107 (stating that any party obligated to pay child support qualifies as a parent by estoppel). -33- equitably estopped to deny his obligation to continue to prov ide for the care and su pport f or the ch ild. Id. at 770 n.7, 621 A.2d at 903 n.7. Contrary to Ma rgaret K . s conte ntion, Monroe demonstrates that exceptional circumstances are not estab lished throu gh a rigid test, but rather by an analysis of all of the factors before the court in a particular case.13 See Sider v. Sider, 334 Md. 512, 532-33, 639 A.2d 1076, 1 086 (1 994). See also Troxel, 530 U.S. at 73, 120 S. Ct. at 206, 147 L.Ed2d at 61,(noting that most state-court adjudication in this context occurs on a case-by-case basis ). Chief Judge Robert C. Murphy, writing for the Court in Sider, 334 Md. 512, 639 A.2d 1076, later amplified and explained this principle. In Sider, the Court remanded the case for further proceedings to resolve a dispute between a natural pare nt an d a th ird party. The issue to be 13 Margaret K. s argument that we recognized a special status for de facto parents in Monroe v. Monroe, 329 Md. 758, 621 A.2d 898 (1993), fails as well because the putative father in that case based his claim for custody on factors additio nal to those n ecessary to demons trate de facto parenthood i.e., his longtime belief that he was the child s biological father and accordingly, would meet the definition o f a paren t by estoppel m ore closely than a de facto parent. See A MERICAN L AW INSTITUTE, P RINCIPLES OF THE L AW OF F AMILY D ISSOLUTION: A NALYSIS AND R ECOMMENDATIONS § 2.03(b), at 107 (softcover ed. 2003) (noting that under the American Law Institute s definition, a parent by estoppel may include an individual who lived w ith a child for two or mo re years under a reasonab le, good-fa ith belief that he was the child s biological father and continued to make reasonable, goodfaith efforts to accept responsibilities as the child s father ). As the American Law In stitute has conclude d, the addition al factors ne cessary to meet the definition of a parent by estoppel give such parties priority over a de facto parent . . . in the allo cation of p rimary custodia l respon sibility. Id. § 2.03 C omm ent, at 11 0-11. We emph asize, however, that even after we considered the additional factors in Monroe, we refused to conclude as a matter of law that the putative father satisfied the requirements to demonstrate exceptional circumstances. -34- decided on remand was whethe r exception al circumsta nces existed to justify granting custody to the third party. Chief Judge Murphy instructed: On remand, the circuit court should consider the following factors set forth in Ross v. Hoffman, supra, and any other relevant factors, in determining whether exception al circumsta nces exist: (1) the length o f time the ch ild has been away from the biological p arent; (2) the age of the child when care w as 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 a nd 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; and (7) the stability and ce rtainty as to the child s future in the custod y of the p arent. We listed other important factors in Turner [v. Whisted, 327 Md. 106, 607 A.2d 935 (19 92)]: the stability of the child s current home environment, whether there is an ongo ing family unit, and the child s physical, men tal, and emotional needs. An important consideration is the child s past relationship with the putative fathe r. (citation omitted). Fina lly, other facto rs might ev en include the child s ab ility to ascertain genetic information for the purpose of medical treatme nt and g enealo gical his tory. 327 Md. at 116-17 [,607 A.2d 935,940]. We also stated in Monroe, supra: Whether the child has established a relationship with a third party sufficient to constitute exceptional circumstances, rebutting the presum ption of cu stody in the biolo gical paren t, is not depende nt on its deve lopment d uring 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 -35- parent/child relationship. Particularly is this true when the relationship is develope d in the con text of a fam ily unit and is fostered, facilitated and, for most of the child s life, encouraged by the biolo gical pa rent. Th at the rela tionship s, one with a known biological parent and the other with an acknowledged, though, in fact, non-biological, parent, progress at the same time, do es not re nder eith er less vi able. 329 Md. at 775-76 [,621 A.2d 898, 906]. W e would further no te that it is ordinarily in the best interest of a child to be raised with his or her siblings. See Hild v. H ild, 221 M d. 349, 3 59, 157 A.2d 442[,447 ] (1960); Melton v. Conno lly, supra, 219 Md. at 190 , 148 A.2d 387 [,390]; Hadick v. Hadick, 90 Md. A pp. 740 , 748, 60 3 A.2d 915[,9 19] (19 92). Sider, 334 Md. at 532-33, 639 A.2d at 1086. Exceptional circum stances are determined by analyzing any and all relevant factors in the parti cular cu stody or v isitation c ase. A ccordingly, while the psychological bond between a child and a third party is a factor in finding exceptional circumstances, it is not determinative. Likewise, a finding that one meets the requirements that would give that person de facto parent status, were that status to be recognized, is a strong factor to be considered in assessing whether e xceptional circumstance s exist. It is not, however, determinative as a matter of law. Accordingly, we hold that the Circuit Court erred in granting visitation to Margaret K. on the gro unds that s he was a de facto parent without first finding either that Janice M. was an unfit parent or that sufficient exceptional circumstances existed to overcome Janice M. s liberty interest in the care, custody, and control of her child. -36- Although the Circuit Court found that exceptional circumstances did not exist, we shall nonetheless rem and for rec onsideration of that ma tter. The Circ uit Court ba sed its conclusion on an improper standard. Therefore, a remand to that court is necessary, to allow it to determine whether , based on a ll relevant fac ts, exception al circumsta nces exist. JUDGMENT OF THE COURT OF SPECI AL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDG MEN T OF TH E CIRC UIT COURT FOR BALTIMORE COUNTY AND TO REMAND THE CASE TO T H A T C O U R T F O R F U RT H ER PROCEEDINGS CONSISTENT WITH THIS OPINIO N. COST S IN TH IS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENT. -37- IN THE COURT OF APPEALS OF MARYLAND No. 122 September Term, 2006 JANICE M. v. MARGARET K. Bell, C.J. *Raker *Cathell Harrell Battaglia Greene Wilner, Alan M. (Retired, specially assigned) JJ. Dissenting Opinion by Raker, J. Filed: May 19, 2008 *Raker, J. and Cathell, J., now retired, participated in the hearing and conf erence of this case while active members of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, they participa ted also in the decision and adoption of this opinion. Raker, J., dissenting: I respectfully dissent. One thing is clear: the M aryland Leg islature is silent w hen it comes to the question of visitation with children when a non-traditional family is dissolved. In the face of this silence, I believe that a de facto parent is different from th ird parties and should be treated as the equivalent of a legal parent, with the same rights and obligations.1 See Troxel v. G ranville, 530 U.S. 57, 63, 120 S. Ct. 2054, 2059, 147 L. Ed. 2d 49 (2000) (noting that [t]he demographic changes of the past century mak e it difficult to speak of an average American family ); N.A.H. v. S.L.S., 9 P.3d 354, 359 (Colo. 2000) (observing that [p]arenthood in our complex society comprises much more than biological ties, and litigants increasingly are asking courts to address issues that involve delicate balances between traditional expec tations a nd curr ent realiti es ). I would recognize the concept of de facto parenthood, and would hold that, in the context of visitation, once a party establishes that he or she fits within the status of a de facto parent, proof of parental unfitness or exceptional circumstances is inapplicable, and the decision as to visitation is controlled by the best interest of the child standard alone. The de facto parenthoo d test has its orig ins in the Wisconsin case of In Re Custody of H.S.H.-K., 533 N .W.2d 419 (W is. 1995 ), cert. denied, Knott v. Holtzman, 516 U.S. 975, 116 S. Ct. 47 5, 133 L . E. 2d 4 04 (19 95). H.S.H.-K. involved a custody battle after a lesbian 1 Recognizing de facto parenthoo d status is espe cially relevant bec ause, as the majority notes, whether same-sex couples may adopt in Marylan d rema ins uns ettled. See Janice M. v. Margaret K., __ Md. __, __, __ A.2d __, __ [slip op. at 2-3 n.3] (2008) ( The issue of whether same-sex couples m ay adopt a ch ild in Maryland has not been briefed in this case and w e expre ss no op inion o n the issu e ). couple ended their long-term relationship. The birth mother of the child, who had become pregnant through in vitro fertilization and had given birth during the course of the relationship, sought to deny her former partner visitation and custody. The lower courts agreed with the biological mother and denied visitation or custody to the petitioner. The Wisconsin Supreme Court reversed. Two questions were presented to the Wisconsin Supreme Court: whether Holtzman could petition for cus tody and wheth er she c ould pe tition fo r visitatio n. Id. at 420. The court said that she could not petition for custody but could petition for visitation based on the judiciary s equitable power over visitation issues. Petitions for v isitation were permissible when a court determines that the petitioner has a parent-like relationship with the child and that a significan t triggering ev ent justifies state in tervention in the child s relationship w ith a biological or adoptive parent. Id. at 435. The Wisconsin Supreme Court adopted the following four-part tes t: (1) the biological or adoptive parent must have consented to, and fostered, the petitioner s formation of a parent-like relationship; (2) the petitioner and the child must have lived together in the same household; (3) the petitioner m ust have assumed the obligations of parenthood by taking significant responsibility for the child s care, education and development, including contributing to the child s support, without expectation of financial compensation a petitioner s contribution to a child s support need not be monetary; and -2- (4) the petitioner must have 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 435-36. The Wisconsin test set forth a high bar for establishing de facto parent status, minimizing concerns that it could be applied too broadly. The first factor, that the biological parent consented to and fostered the formation of a parent-like relationship, eliminates the majority s fear that recognition of de facto parenthood will open the floodgates for litigation by babysitter s, foster parents and the like. See Janice M. v. Margaret K., __ Md. __, __, __ A.2d __, __ [slip op. at 26] (2008) ( The issues . . . could arise in a myriad of other circumstances, including disputes involving step-parents, grandparents, and parties in a relationship with a significant other ). The court discussed also the necessity of a significant triggering event to justify state intervention in a child s relationship with a biological or adoptive parent. The court reasoned as follows: To establish a significant triggering event ju stifying state intervention in the child s relationship with a biological or adoptive parent, the petitioner must prove that this parent has interfered substantially with the petitioner's parent-like relationship with the child, and that the petitioner sought court ordered visitation within a rea sona ble ti me a fter t he paren t's interference. The petitioner must prove all these elem ents befor e a circuit court may consider whether visitation is in the best interest of the child. T he proceedings must focus on the child. When a -3- non-traditional adult relationship is dissolving, the child is as likely to become a victim of turmoil and adult hostility as is a child subject to the dissolution of a marriage. Such a child needs and dese rves the pro tection of the courts as much as a child of a dissolving traditional relationship. Id. at 658 (citations omitted). Since H.S.H.-K., the American Law Institute has adopted and promulgated a definition for a de facto parent in a tre atise setting fo rth principles governing the allocation of custodial and decision-making respon sibilities f or child ren. See Janice M. v. Margaret K., __ Md. __, __, __ A.2d _ _, __ [slip op . at 20] (2008 ); A MERICAN L AW INSTITUTE, P RINCIPLES OF THE L AW OF F AMILY D ISSOLUTION: A NALYSIS AND R ECOMMENDATIONS § 2.03(1)(c) (2003) (adopted May 16, 2000) ( ALI P RINCIPLES OF THE L AW OF F AMILY D ISSOLUTION ).2 In § 2.04, the American Law Institute includes a de facto parent as on e of the pa rties with 2 The definition for a de facto parent is set forth in the AMERICAN L AW INSTITUTE, P RINCIPLES OF THE L AW OF F AMILY D ISSOLUTION: A NALYSIS AND R ECOMMENDATIONS § 2.03(1)(c) (2003) ( ALI P RINCIPLES OF THE L AW OF F AMILY D ISSOLUTION ), as follows: A de facto parent is an individual other than a legal parent or a parent b y estoppe l 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 grea t as that of the parent with w hom th e child p rimarily live d. -4- standing to bring an action for the determ inati on of cus tody, subject to the best interests of the child analysis.3 The commentary to § 2.03(c) indicates that [t]he requirements for becoming a de facto parent are stric t, to avoid unneces sary and inapp ropriate intrusio n into the relationships between legal parents and their children. ALI P RINCIPLES OF THE L AW OF F AMILY D ISSOLUTION § 2.03 comm ent c. The requ irement that th e legal paren t consent to the formation of a pa rent-child relationship, barring any comp lete failure of the legal parent that would amount to parental unfitness, again assu ages any fea r that the stand ard conflic ts with the liberty interest of parents in the custody and care of the ir children ide ntified in Troxel. Many of our sister s tates have re cognized that de facto parenthood4 status entitles a party otherwise considered as a third party to equal standing as a legal paren t in visitation or custody matters. The Massachusetts Supreme Judicial Court recognized the concept of de facto parent in E.N.O. v. L.M.M., 711 N .E.2d 8 86 (M ass. 199 9), cert. denied, L.M.M. v. E.N.O., 528 U.S. 1005, 120 S. Ct. 500, 145 L. E. 2d 386 (1999). In E.N.O., the Massac husetts Supreme Court addressed a custody and visitation dispute between a same-sex 3 Other parties include a legal parent, a parent by estoppel, a biological parent, an individual allocated cu stodial respo nsibility or decision-making responsibility regarding the child under an existing parenting plan, or w here the court grants permission for intervention because it determines exceptional circumstances exist. ALI P RINCIPLES OF THE L AW OF F AMILY D ISSOLUTION § 2.04. 4 States h ave use d terms such as paren t-like statu s, and psychological parenthood to address a third party who seeks custody or visitation because that party has played a parental role in a child s upbrin ging. S ee, e.g., In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis. 1995) and V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000). -5- couple. The biological mother had denied the petitioner access to a child born during the course of their relation ship. T he court h eld that the fa mily and prob ate court trad itionally enjoyed equity jurisdiction and, in spite of a lack of statutory authority, the court could find that, pursua nt to the b est intere st of the child, the child s de facto parent sho uld be allowed visitation with th e child. Id. at 892-93. The holding of the cou rt was in part bas ed on its conclusion that recognition of de facto parents is in ac cord with notions of the modern family. Id. at 891. The court explained as follows: A child may be a member of a nontraditio nal family in which he is parented by a legal parent and a de facto parent. A de facto parent is one who has no biological relation to the child, but has participated in the child s life as a member of the child s fam ily. The de facto parent resides with the child and, with the consent and encouragement of the legal pare nt, performs a share of caretaking functions at least as great as the legal parent. The de facto parent shapes the child s da ily routine, addres ses his developmental needs, discip lines the child , provides fo r his education and medical care, and serves as a moral guide. The recognition of de facto parents is in accord with the notions of the modern family. An increasing number of same gender couples, like the plaintiff a nd defen dant, are dec iding to have children. It is to be expected that children of nontraditional families, like other ch ildren, form parent relation ships with b oth parents, whether those parents are lega l or de facto. Thus, the best interests calculus must include an examination of the child s relationship with both his legal and de facto parent. Id. at 891 (citations and footnotes omitted). See also V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000) (recognizin g special statu s for psycholo gical paren ts); Rubano v. DiCenzo, 759 A.2d 959, 976 (R.I. 2000) (finding no infer[ence] [of] legislative intent to preclude standing to -6- a de facto parent and concluding that a person who has no biolog ical connec tion to a child but who has served as a psychological or de facto parent to tha t child may . . . establish his or her entitlem ent to paren tal rights vis-a-v is the child ); A.C. v. C.B., 829 P .2d 660 (N.M . Ct. App. 20 02) (recog nizing sam e-sex dua l parent relation ship and re versing trial court s ruling that a coparenting agreement was per se unenf orceab le), cert. denied, C.B. v. A.C., 827 P.2d 837 (N.M . 1992). Courts have continued to recognize the de facto parenthoo d concep t post-Troxel. In In re Parentage of L.B., 122 P .3d 161 (Wash . 2005) , cert. denied , Britain v. Ca rvin, 547 U.S. 1143, 126 S. Ct. 2021, 164 L. Ed. 2d 806 (2006), the Washington Supreme Court was confronted with a custody and visitation dispute between former partners in a same-sex relationship. The court held that Washington s common law recognizes the status of de facto parents. Id. at 163. The court recognized that [i]n the face of advancing technologies and evolving notions of what comprises a family unit, this case causes us to confront the manner in which o ur state, throug h its statutory schem e and com mon law principles, defines the terms parents and families. Id. at 165. The court concluded that parties who satisfy the requireme nts of de facto parenthoo d are in pa rity with biological and adoptive parents in our state, explaining as follows: Reason and common sense support recognizing the existence of de facto parents and according them the rights and responsibilities which attach to parents in this state. We adapt our common law today to fill the interstices that our current legislative enactmen t fails to cove r in a manner consistent w ith our laws and state d leg islati ve policy. -7- *** We thus hold that henceforth in Washington, a de facto parent stands in leg al parity with an o therwise leg al parent, whether biological, ad optive, or oth erwise. As such, recognition of a person as a child s de facto parent necessarily authorizes [a] court to consider an award of parental rights and responsibilities . . . based on its determination of the best interest of the child. A de facto parent is not entitled to any parental privileges, as a matter o f right, but only as is de termined to be in the best interests of the child at the center of any su ch disp ute. Id. at 176- 77 (citat ions an d footn otes om itted). See also C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004) (recognizing de facto parent status and placing a de facto parent in pa rity with a statutory parent); Middleton v. Johnson, 633 S.E.2d 162 (S.C. Ct. App. 2006) (finding that an ex-boyfriend who lived with the child for nine years should be recognized as a psychological parent or de facto p arent, gaining visitation rights); In re Bon field, 780 N.E.2d 241 (Ohio 2002) (finding that becaus e state statute sp ecifically define d parent, it would be inapprop riate to . . . broaden the narrow class of persons to include biological mothe r s same-sex partner and thus partner was not entitled to the b enefit of sta tutes that are cle arly inapplicab le to such a familial arra ngemen t, but conclu ding cour ts do have jurisdiction to consider petition for shared custody as not preempted by statute); T.B. v. L.R.M., 786 A.2d 913, 920 (Pa. 2001) (concluding lesbian partner assumed a parental status and discharged parental duties with the consent of [the biological mother] and thus has standing as person in loco parentis to bring action for partial custody and visitation); In re Parentage of A.B., 818 N.E.2d 1 26, 131-3 3 (Ind. Ct. App. 20 04) (holdin g comm on law p ermits recognition of -8- former same-sex partner of biological mother as legal coparent of child conceived by artificial inseminatio n during re lationship); In re E.L.M.C., 100 P.3d 546, 558-61 (Colo. Ct. App. 2004) (finding a compelling state interest in preventing harm to child satisfies strict scrutiny analysis and affirming recognition of psychological parent doctrine in context of former same-sex partner s petition for equal p arenting time), cert. denied, Clark v. McLeod, 545 U.S. 1111 , 125 S. Ct. 1371, 162 L. E. 2d 287 (20 05). The rationale underlying the de facto parent test is not inconsistent with Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), nor does it contradict the Supreme Court s jurispruden ce, or this Co urt s jurisprud ence, in add ressing the lib erty interest of paren ts in the ca re, cu stod y, and co ntrol of their chi ldren. See In re E.L.M .C., 100 P.3d 546 (hold ing that desp ite Troxel, parenta l unfitne ss need not be s hown ). Troxel did not decide whether a finding of unfitness is a condition precedent to recognizing rights of a nonpare nt. See W.C. ex rel. A.M.K., 907 P.2d 719 (Colo. Ct. App. 1995) (rejec ting father s argument that unfitness must be shown to interfere with fundamental right to direct upbringing of child). A de facto parent fits within the category of legal parents and should be treated as though in parity with legal parents in visitatio n matte rs. See In re Parentage of L.B., 122 P.3d at 178. As such, granting a de facto parent equal rights over a child does not implicate the liberty interest a legal pare nt po ssesses in the c are, c usto dy, and control of his or her child. Significantly, the Troxel plurality expressly de cided that it w ould not: consider the primary constitutional question passed on by the Washington Supreme C ourt whether the Due P rocess Clause -9- requires all nonparental visitation statutes to include a showing of harm or potential h arm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental du e process rig ht in the visitation context. Troxel v. G ranville, 530 U .S. at 73, 1 20 S. C t. at 2064 . Furthermore, the test to determine de facto parenthoo d is narrowly tailored and allows a person to overcome the presumption in favor of a natural parent s rights only after that party demonstrates that he or she is in essence a parent to the child. As Chief Judge Joseph F. Murphy, Jr. explained, writing for the Co urt of Spe cial Appe als in Janice M. v. Margaret K.: The person who claims to be a child s de facto parent must successfully shoulder the burdens of (1) pleading, (2) production of evidence, and (3) persuasion. We can take judicial notice that in almost every home occupied by adults and children, the adults perform some parental fun ctions on b ehalf of the children. Under the above quoted test, however, a person who performed parental functions is not entitled to de facto parent status unless the court finds as a fact that the child s legal parent has actually fostered such a relationship. Because the test we adopted in S.F. v. M.D., supra, is a strict one, neither our holding in that case nor our holding in the case at bar will open the floodgates to claims of de facto parenthood asserted by persons who can prove nothing more than that, while livin g with the natural or adoptive parent of a child, they performed some parental functions on behalf of the child. Rare are the case like the case a t bar, in which the circuit court was presented with evidence that (as summarized in the argument of Margaret K. s counsel) Maya was with Margaret [K.] every day of he r life in this cou ntry until August of 2004 [and] [t]he on ly reason t hat M argaret [K.] has been deprived of -10- the opportun ity to have a relatio nship with her daug hter is because she w asn t on that decree of ad option. Janice M. v. Margaret K., 171 Md. App. 528, 539-40, 910 A.2d 1145, 1152 (2006) (tran sliter ation in the origina l). I ag ree w ith C hief Judg e Murph y. The Supreme C ourt s opinion in Troxel v. G ranville did not prohibit the recognition of de facto parents . See Troxel, 530 U.S. at 68, 120 S. Ct. at 2061 (noting that special factors . . . might justify the State s interference with [the biological mother s] fundamental right to make decisions co ncerning the rearing of her [children] ). The Su preme Cou rt refused to define the specific scope of a parent s liberty interest, leaving the states to address the matter. As the majority in this case notes: The plurality [in Troxel] declined to define the precise scope of the parental due process right in the visitation context and declined to answer the question of whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or pote ntial har m. Id. at 73, 120 S .Ct. at 2064. Instead, the Court rested its holding on the sweeping breadth of the Washington statute, stating as follows: In this respect, we agree with Justice Kennedy that the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best elaborated with ca re. Because much state-court adjudication in this conte xt oc curs on a case -bycase basis, we would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter. -11- See Janice M. v. Margaret K., __ Md. __, __, __ A.2d __, __ [slip op. at 11-12] (2008) (citation omitted). The Troxel plurality noted the lack of special factors justifying interference with the parent s liberty interest, comparing the Washington statute to other states, where a standard is required show ing that a pa rent has de nied (or un reasonab ly denied) visitation to the concerned third party. Troxel, 530 U.S. at 68, 71, 120 S.Ct. at 2061, 2063. Justice Souter, in his concurrence, criticized the Washington statute for not requiring a substantial relationship as a threshold matter. Id. at 77, 120 S.Ct. at 2066. Justice Kennedy went further, noting in his dissent that a fit parent s right vis-a-vis a complete stranger is one thing; her right vis-a-vis another parent or a de facto parent may be another. Id. at 100-01, 120 S.Ct. at 2079. We have attempted to clarify the principles noted in Troxel in McD ermott v. Dough erty, 385 Md. 320, 869 A.2d 751 (2005), and Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007). In McD ermott we explained that parental unfitness and exceptional circumstances are threshold consid erations in third party custody dete rminations; Koshko made clear that those considerations apply in third party visitation disputes. See Janice M. v. Margaret K., __ Md. __, __, __ A.2d __, __ [slip op. at 19] (2 008). Both op inions dealt with the rights of pure third parties, and not those of de facto parents . See Mc Dermo tt, 385 Md. at 356, 869 A.2d at 772 (delineating the distinction between pure third-party cases and cases involving psychological parents, third parties who have, in eff ect, become paren ts ); -12- Koshko, 398 Md. at 443, 921 A.2d at 194. They do not addre ss the issue before the C ourt toda y. In my view, Monroe v. Monroe, 329 Md. 758 , 621 A.2d 898 (1993), provides support for adoption of the de facto parent doctrine. Monroe dealt with a non-biological party who sought custody and visitation. Writing for the Court, Chief Judge Bell pointed out that [w]hat is important, ra ther, is the relationship that exists between the child and each of the parties. Id. at 775, 621 A.2d at 906. Significantly, we noted as to a man denying supp ort to a child, even though the child turns out not to be his biological child, we stated as follows: Where a man provides support and care to a child believing, as a result of the mother s representations, that he is the child s father and, thereafter, after being told and, indeed, efforts have been made to prove that he is not, he continues to insist that he is, it is quite likely that he will be deem ed to be eq uitably estopped to deny his ob ligation to continue to provide for the care an d supp ort of th e child. Id. at 770 n.7, 621A.2d at 903 n.7 (citation omitted). We noted in Monroe that protection of a child s relation ship with a non-biolo gical paren t is warranted when the relationsh ip is developed in the conte xt of a f amil y unit and is fostered, facilitated and, for most of the child s life, encouraged by the biological parent. Id. at 775, 621 A.2d at 90 6. Althoug h in Monroe we were discussing exceptional circumstances, the rationale of our discussion applies to the de facto parent discussion. We stated as follows: Whether the child ha s established a relationship with a third party sufficient to constitute exceptional circumstances, rebutting the presum ption of cu stody in the biolo gical paren t, is not dependent on its development during the absence of the -13- 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 develope d in the con text of a fam ily unit and is fostered, facilitated and, for most of the child s life, encouraged by the bio logical p arent. Id. Monroe supports the argumen t that de facto parent status, if established, is different from a pure third party. Monroe provides support also for an alternative basis for applying the best intere sts of the child analysis, the recognition of a parent by estoppel. As the majority notes, we theorized that the putative father might even have been equitably estopped from disclaiming his parental obligations. See Janice M. v. Margaret K., __ Md . __, __, __ A .2d __, __ [ slip op. at 33] (2008 ). We exp licitly said in Monroe that it is quite likely that [a man providing support and care b elieving that he is the child s father] w ill be deeme d to be equ itably estopped to deny his obligation to continue to provide for the care and support for the child . Id. at 770 n.7, 621 A .2d at 903 n .7. While the majority argue s that equitab le estoppel is not an equivalen t concept to parenth ood by e stoppe l, see Janice M. v. Margaret K., __ Md. __, __, __ A.2d __, __ [slip op. at 33 n.12] (2008), the American Law Institute s definition of a parent by estoppel includes any individual who, though not a legal p arent, is obliga ted to pay child support under § 3 of the treatise.5 Section 3.03 provides for the kind of equitable 5 Section 2.03(b) of the A LI P RINCIPLES OF THE L AW OF F AMILY D ISSOLUTION provides as follows: A parent by estoppel is an individual who, though not a legal (contin ued...) -14- estoppel we discussed in Monroe. The reco gnition of th e psycholog ical bond a nd equitab le estoppel from denying pare ntal s upport su ggested by Monroe provide strong foundation for the recognition of de facto parenthood status in Maryland law. As Margaret K. points out in her brief, a finding that a person qualifies as a de facto parent does not re sult automatically in visitation rights. Such determination only leads to the next question: W hat is in the best interest of the child? See ,e.g., In re Parentage of L.B., 122 P. 3d at 177 (stating that [a] de facto parent is not entitled to any parental privileges, as a 5 (...continued) parent, (i) is obligated to pay child support under Chapter 3; 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 re asonable, g ood-faith e fforts to accept responsibilities as the child's father; or (iii) lived with the c hild since the child 's birth, holding out and accepting full and pe rmanent re sponsibilities as parent, as part of a prior co-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 recogn ition of the ind ividual as a p arent is in the child's best interests; or (iv) lived with th e child for at least two years, holding out and accepting full and pe rmanent re sponsibilities as a parent, pursuant to an agree ment with the child's parent (or, if there are two legal parents, both parents), when the court finds that recognition of the indiv idual as a pa rent is in the child's best interests . -15- matter of rig ht, but only as is de termined to be in the best interest of the child at the center of any such dispute ). Several of our sister s tates, in considering non-parents assertions of parental rights, reject a finding of parental un fitness as a predicate for state interference with the paren t s right to contr ol the up bringin g of the ir childre n. See, e.g., Downs v. Scheffler, 80 P.3d 775 (Ariz. Ct. App. 2 003); In re C ustody of C.C .R.S., 892 P.2d 246 (Colo. 1995) (rejecting parental unfitness standard in favor of the best interests of the child test in contest between biological mother and psychologica l parents); Roth v. Weston, 789 A.2d 431(Conn. 20 02); Rideout v. Riendeau, 761 A.2d 291 (Me. 2000); Blixt v. Blixt, 774 N.E.2d 1052 (Ma ss. 2002); Moriarty v. Bradt, 827 A.2d 203 (N.J. 2 003); Williams v. Williams, 50 P.3d 194 (N.M. C t. App. 2002); State ex rel. B randon L . v. Moats , 551 S .E.2d 6 74, 684 (W. Va. 2001) (concluding that two-prong standard of best interests of child and lack of substantial interference with parents right meets Troxel requirements). For the reasons noted above, I would hold that a de facto parent stand s in legal parity with a legal parent, whether biological, adoptive, or otherwise, for the purposes of visitation. Acc ordingly, I would not apply the threshold determinations of parental unfitness or exceptional circumstances that we required in McD ermott and Koshko. A party who has demonstrated that he or she is a child s de facto parent sho uld be entitled to v isitation rights if such a result is in the best interest of the child. -16-

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