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Importantly, Maryland statutory law is silent when it comes to de facto parenthood. As part of their broad power to fashion appropriate relief, equity courts have plenary authority to determine questions concerning the welfare of children. In other words, a court of chancery stands as a guardian of all children and may interfere at any time and in any way to protect and advance their welfare and interests.
Michelle and Brittany Conover began a relationship in July 2002. The parties discussed having a child and agreed that Brittany would be artificially inseminated from an anonymous donor arranged through the Shady Grove Fertility Clinic. The child was conceived in 2009. The couple gave birth to a son, Jaxon William Lee Eckel Conover ("Jaxon"), in April 2010. The birth certificate listed Brittany as Jaxon's mother, but no one was identified as the father. The parties married in the District of Columbia in September 2010 when Jaxon was about six months old. In September 2011, Michelle and Brittany separated. From the date of separation until July 2012, Michelle visited Jaxon and had overnight and weekend access. At some point in July 2012, Brittany prevented Michelle from continuing to visit Jaxon. In February 2013, Brittany filed a Complaint for Absolute Divorce, stating that there were no children shared by the couple from the marriage. Michelle filed an Answer later that month in which she requested visitation rights with respect to Jaxon. In March 2013, Michelle filed a Counter-Complaint for Absolute Divorce, in which she repeated her request for visitation rights. Michelle did not request custody.
In April 2013, the parties appeared at a hearing in the Circuit Court for Washington County to determine Michelle's standing to seek access to Jaxon. Brittany, appearing pro se, argued that Michelle did not have parental standing because she was not listed on the birth certificate as a parent of Jaxon, and that as a third party, she could not assert visitation rights. Michelle asserted that she had standing because she met the paternity factors for a "father" set forth in Md. Code (1974, 2011 Repl. Vol.), Estates & Trusts ("ET"), § 1-208(b). The Circuit Court then conducted an evidentiary hearing and took testimony from Michelle and Brittany. Multiple pieces of evidence were elicited at the hearing, such as the fact that Michelle helped choose an anonymous sperm donor with characteristics similar to her own; although Brittany later objected to the practice, Jaxon, at times, called Michelle "Dada" or "Daddy"; Brittany sometimes referred to Michelle as Jaxon's father; a document, dated July 16, 2010, written entirely in Brittany's handwriting stated that both parties "verified" that they agreed to "joint custody" of Jaxon with "[t]he exact terms of which to be determined at a later date”; and that the parties considered initiating a proceeding for Michelle to adopt Jaxon, but they could not afford the cost. At the conclusion of the evidentiary portion of the proceeding, Michelle's counsel contended that parental standing existed under ET § 1-208(b). She also argued that Brittany was estopped to deny that Michelle was the child's father. In June 2013, the Circuit Court issued a written opinion concluding that Michelle did not have standing to contest custody or visitation.
Is de facto parenthood a viable means to establish standing to contest custody or visitation rights?
Other jurisdictions in recognizing de facto status have cast aside the contention that recognition of such status should be left to the legislative branch where the relevant statutes were silent on de facto parenthood. In Parentage of L.B., 122 P.3d at 176, the Washington Supreme Court wrote:
Our state's current statutory scheme reflects the unsurprising fact that statutes often fail to contemplate all potential scenarios which may arise in the ever changing and evolving notion of familial relations. Yet, simply because a statute fails to speak to a specific situation should not, and does not in our common law system, operate to preclude the availability of potential redress. This is especially true when the rights and interests of those least able to speak for themselves are concerned. We cannot read the legislature's pronouncements on this subject to preclude any potential redress to [minor child] or [putative de facto parent]. In fact, to do so would be antagonistic to the clear legislative intent that permeates this field of law-to effectuate the best interests of the child in the face of differing notions of family and to provide certain and needed economical and psychological support and nurturing to the children of our state.
This reasoning was in accord with other state high courts that have recognized de facto parenthood. Although several state courts have refused to adopt de facto parent status on the grounds that such decisions should be left to the legislature, the Court found this reasoning inapt because Maryland's statutory scheme in the area of family law is not as comprehensive as such states. Indeed, Maryland statutory law on child custody and visitation illustrated that "statutes often fail to contemplate all potential scenarios which may arise in the ever changing and evolving notion of familial relations." Maryland does not have statutory factors for courts to consider in determining whether a party's access to a child is in that child's best interests. Rather than looking to codified rules, the factors courts consider in making a "best interests determination" were found in case law. This judicially determined law has been in place for many years, without legislation overruling it. Thus, the court discerned no evidence that Maryland's General Assembly intended to preempt common law jurisprudence over the "ever changing and evolving notion of familial relations" in child custody proceedings. For these reasons, the Court rejected Brittany's contention that an equity court's ability to consider de facto parent status in fashioning relief pertaining to the custody or guardianship of a child lies solely within the province of the General Assembly.
Thus, the Court of Appeals of Maryland overruled Janice M. v. Margaret K., 404 Md. 661 (2008) because it was clearly wrong and has been undermined by the passage of time. In light of its differentiation in McDermott, between pure third parties and those persons who are in a parental role, the Court now made explicit that de facto parents distinct from other third parties. The Court held that de facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis. The best interests of the child standard has been firmly entrenched in Maryland and is deemed to be of transcendent importance. With that holding the Court fortified the best interests standard by allowing judicial consideration of the benefits a child gains when there is consistency in the child's close, nurturing relationships. The Court did so carefully, adopting the multi-part test first articulated by the Wisconsin Supreme Court in H.S.H.-K. That test accommodates the dissonance between what is in the best interest of a child and a parent's right to direct and govern the care, custody, and control of their children.