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Conover v. Conover

Court of Appeals of Maryland

July 7, 2016

MICHELLE L. CONOVER
v.
BRITTANY D. CONOVER

          Argued Date April 5, 2016

         Circuit Court for Washington County Case No.: 21-C-13-046273 DA

          Barbera, C.J. [*] Battaglia Greene Adkins McDonald Watts Raker, Irma S. (Retired, Specially Assigned), JJ.

          OPINION

          Adkins, J.

         Child custody and visitation decisions are among the most serious and complex decisions a court must make, with grave implications for all parties. The dissolution of a non-traditional marriage just compounds the difficulties of this already challenging inquiry. This appeal arises out of a divorce between a lesbian couple, and involves a dispute over one spouse's right of access to a child conceived by artificial insemination and born before the couple was married. Petitioner calls upon us to revisit the concept of de facto parenthood and our previous decision in Janice M. v. Margaret K., 404 Md. 661 (2008).

         FACTS AND LEGAL PROCEEDINGS

         Michelle[1] 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).[2] At the hearing, Michelle's counsel averred that there were "constitutional reasons" that supported this interpretation, but provided no further explanation. The Circuit Court requested supplemental memoranda. Michelle filed a legal memorandum in which no constitutional contentions were made. Brittany did not submit a memorandum.

         The Circuit Court then conducted an evidentiary hearing and took testimony from Michelle and Brittany. The following pieces of evidence were elicited at the hearing:

• Michelle helped choose an anonymous sperm donor with characteristics similar to her own;
• Brittany took on the more "female" role in the relationship, while Michelle took on the more "masculine" role;
• 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 was introduced. It 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";[3]
• Michelle testified 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. Finally, she stated:

An alternative argument is that my client has standing for custody based on extra . . . extraordinary circumstances. And . . . and I'm not sure if you want me to go into that argument or not. Ah, but for a custody proceeding, a Court can consider custody to a third party or visitation to a third party if the Court finds that there are extraordinary circumstances. And I believe that this case screams extraordinary circumstances.

         In June 2013, the Circuit Court issued a written opinion concluding that Michelle did not have standing to contest custody or visitation. First, the court found that Michelle did not have parental standing. The court took note of the common law and statutory presumption that a child born during a marriage is presumed to be the child of both spouses, but concluded that the presumption was not applicable here as Jaxon was conceived and born prior to Brittany and Michelle's marriage. The court also found Michelle did not establish parental standing under ET § 1-208(b) because she was not Jaxon's "father." The court explained:

Although it is certainly a creative argument, the statute is intended for children to claim parentage and rights to property after a parent has deceased, not for the parent to claim the child under it. Moreover, this Court finds that even under its broadest interpretation, the statute's application was intended by the [L]egislature to be applied in instances of child support, not to establish standing for visitation and custody of a child. See Md. Code Ann., Fam. Law § 5-1005(a). [Michelle] argues that although not a male, she has sufficiently satisfied three of the four criteria under [ET] § 1-208(b) to qualify as the minor child's father. [Section] 1-208(b) specifically pertains to the parentage of an illegitimate child claiming his or her "father[, ]" which [Michelle] in this case is not. During the hearing the parties testified to the fact that [Michelle] is in fact a female, had not adopted the child, and in no way was related to the child, thus not sufficiently establishing that she could be the "father" of the child.

Although the Circuit Court stated that Michelle was Jaxon's de facto parent, it relied on Janice M. v. Margaret K., 404 Md. 661 (2008) in concluding that de facto parent status was not recognized in Maryland.

         Next, the court found that Michelle did not have "third party" standing to contest custody or visitation. Relying on Janice M., the court held that Michelle, as a "third party, " had to show that Brittany was unfit or that exceptional circumstances existed to overcome the biological mother's constitutionally protected interest in the care and control of her child. Based on the testimony at the hearing, the court found Brittany to be a fit parent and that "[t]here [had] been no showing of exceptional circumstances." The Circuit Court denied Michelle's request for custody or visitation based on lack of standing.

         After the divorce was granted, Michelle timely appealed the Circuit Court's order on visitation to the Court of Special Appeals. The Court of Special Appeals affirmed in a reported decision. Conover v. Conover, 224 Md.App. 366 (2015). First, the intermediate appellate court considered it inappropriate to address the issue of whether ET § 1-208(b) must be read to include women. Id. at 376. The court noted that whether the Fourteenth Amendment of the United States Constitution or the Equal Rights Amendment of the Maryland Declaration of Rights necessitate that the term "father" in ET § 1-208(b) be given a gender-neutral construction was an issue that was neither raised nor decided below. Id. Next, the court ruled that even if Michelle qualified as a "father" under ET § 1-208(b) despite her being female, the statute did not establish parentage for purposes of child custody and visitation:

A non-biological, non-adoptive spouse who meets one, two or even three tests under ET § 1-208(b) is still a "third party" for child access purposes. Under Janice M., he or she is not a "legal parent" . . . . He or she must still show exceptional circumstances to obtain access to a child over the objection of a fit biological parent and to overcome the natural parent's due process rights.

Id. at 380.

         We granted Michelle's Petition for Writ of Certiorari presenting the following two questions for review:

(1) Should Maryland reconsider Janice M. v. Margaret K. and recognize the doctrine of de facto parenthood?
(2) Did the Court of Special Appeals err in holding that Michelle is a "third party, " where Michelle is a legal parent under ET § 1-208(b)?

         We hold that de facto parenthood is a viable means to establish standing to contest custody or visitation and thus answer yes to the first question. We shall reverse the judgment of the Court of Special Appeals. Because we overturn Janice M. and recognize de facto parent status, we need not address Michelle's arguments regarding ET § 1-208 and thus do not answer the second question.[4]

          STANDARD OF REVIEW

         Brittany and Michelle agree that the facts in this case are not in dispute. Whether we should reconsider Janice M. and recognize the doctrine of de facto parenthood is a legal question, and so we review the Circuit Court's decision without deference. Elderkin v. Carroll, 403 Md. 343, 353 (2008) ("When the ruling of a trial court requires the interpretation and application of Maryland case law, we give no deference to its conclusions of law.").

         DISCUSSION

         The primary goal of access determinations in Maryland is to serve the best interests of the child. Taylor v. Taylor, 306 Md. 290, 303 (1986) ("We emphasize that in any child custody case, the paramount concern is the best interest of the child . . . . The best interest of the child is [] not considered as one of many factors, but as the objective to which virtually all other factors speak."); Ross v. Hoffman, 280 Md. 172, 174–75 (1977) (asserting that the "best interest standard is firmly entrenched in Maryland and is deemed to be of transcendent importance"). It is also well-established that the rights of parents to direct and govern the care, custody, and control of their children is a fundamental right protected by the Fourteenth Amendment of the United States Constitution. Meyer v. Nebraska, 262 U.S. 390, 399 (1923); see Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925). Although there is some tension inherent amongst these two deep-rooted principles, we recognized in McDermott v. Dougherty, 385 Md. 320, 353 (2005), that the rights of parents to custody of their children are generally superior to those of anyone else:

Where the dispute is between a fit parent and a private third party, however, both parties do not begin on equal footing in respect to rights to "care, custody, and control" of the children. The parent is asserting a fundamental constitutional right. The third party is not.

We have thus held that a third party seeking custody or visitation must first show unfitness of the natural parents or that extraordinary circumstances exist before a trial court could apply the best interests of the child standard. McDermott, 385 Md. at 325; see Koshko v. Haining, 398 Md. 404, 445 (2007) (ruling grandparent visitation statute unconstitutional as-applied where no threshold finding was made regarding whether parents were unfit or whether exceptional circumstances existed).

         Janice M. v. Margaret K.

         In Janice M., 404 Md. at 671, we considered whether Maryland recognized de facto parenthood and if so, whether a de facto parent seeking custody or visitation had to show parental unfitness or exceptional circumstances before a trial court could apply the best interests of the child standard. In so holding, we overruled the Court of Special Appeals decision treating de facto parental status as sufficient to confer standing to seek visitation in S.F. v. M.D., 132 Md.App. 99 (2000). Janice M., 404 Md. at 683–85. That court held that a de facto parent seeking visitation need not prove the unfitness of the biological parents or exceptional circumstances as a prerequisite to a best interests of the child analysis. 132 Md.App. at 111–12.

          In revisiting this issue, we examine the basis for the intermediate appellate court's ruling in S.F. v. M.D., and this Court's rationale in rejecting that ruling in Janice M. To determine whether one is a de facto parent, the Court of Special Appeals adopted a four-part test first articulated by the Wisconsin Supreme Court in In re Custody of H.S.H.-K., 533 N.W.2d 419, 421 (Wisc. 1995):

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 (2000). 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 with 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." V.C., 163 N.J. at 223, 748 A.2d 539.

Id. at 111.[5] Certiorari was not requested in S.F. v. M.D.

         But what exactly is de facto parenthood? The Court in Janice M. explained that the phrase "de facto parent" is "used generally to describe a party who claims custody or visitation rights based upon the party's relationship, in fact, with a non-biological, non-adopted child." 404 Md. 680–81.[6] In that case, two women, Janice and Margaret, were involved in a same-sex relationship for approximately 18 years, but were not married.[7] Id. at 665. After Janice's attempts to become pregnant by use of in vitro fertilization failed, Janice, but not Margaret, adopted a child. Id. A few years after the adoption, the couple separated. Id. After they separated, Margaret filed a complaint in the Circuit Court for Baltimore County seeking custody, or in the alternative, visitation. Id. at 666–67.

         Relying on S.F. v. M.D., the Circuit Court concluded that Margaret was entitled to visitation because she was a de facto parent and that a de facto parent is not required show unfitness of the biological parent or exceptional circumstances. Id. at 668–69. The Court of Special Appeals affirmed. See Janice M. v. Margaret K., 171 Md.App. 528 (2006). Certiorari was granted, and this Court overruled the intermediate court's eight-year-old decision in S.F., holding de facto parent status was not a recognized legal status in Maryland. Janice M., 404 Md. at 685. In rejecting the S.F. holding, the Court refused to distinguish de facto parents from other third parties and asserted that de facto parents seeking access rights must first show parental unfitness or exceptional circumstances before a trial court can apply the best interests of the child standard:

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-circuiting the requirement to show unfitness or exceptional circumstances is contrary to Maryland jurisprudence, as articulated in McDermott and Koshko.
Even were we to recognize some form of de facto parenthood, the real question in the case sub judice will remain, whether, in a custody or visitation dispute, a third party, non-biological, non-adoptive parent, who satisfies the test necessary to show de facto parenthood should be treated differently from other third parties. We have not been persuaded that they should be. 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 legal parent is either unfit or that exceptional circumstances exist. A fair reading of McDermott and Koshko leads to no other conclusion.

Id. Accordingly, the Court found that the trial court erred in granting Margaret visitation based on her status as the child's de facto parent without first determining whether Janice was unfit or whether exceptional circumstances existed to overcome Janice's "liberty interest in the care, custody, and control of her child." Id. at 695. The Court then remanded the case so that the trial court could determine whether exceptional circumstances existed. Id. at 695–96. In doing so, we explained that "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 exceptional circumstances exist[, ]" but would not be "determinative as a matter of law." Id. at 695.

         The Court's decision in Janice M. was not unanimous. In a dissenting opinion, Judge Irma Raker asserted "that a de facto parent is different from 'third parties' and should be treated as the equivalent of a legal parent, with the same rights and obligations." Id. at 696 (Raker, J., dissenting). The dissent contended that it "would hold that a de facto parent stands in legal parity with a legal parent, whether biological, adoptive, or otherwise, for the purposes of visitation" and "would not apply the threshold determinations of parental unfitness or exceptional circumstances." Id. at 709.

         Stare Decisis

         Stare decisis is the bedrock of our legal system because "it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Livesay v. Balt. Cnty., 384 Md. 1, 14 (2004) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). Stare decisis, however, must sometimes yield to another judicial duty:

[The common law] may be changed by legislative act as Art. 5 of the Declaration of Rights expressly provides . . . . It may also be changed by judicial decision . . . . 'We have frequently held that it is our duty to determine the common law as it exists in this State . . . .' The doctrine of stare decisis does not preclude the exercise of this duty.

Boblitz v. Boblitz, 296 Md. 242, 274 (1983), modified by Bozman v. Bozman, 376 Md. 461 (2003).[8] In the course of abrogating the doctrine of interspousal immunity in tort claims, the Boblitz Court stated:

We are persuaded that the reasons asserted for its retention do not survive careful scrutiny. They furnish no reasonable basis for denial of recovery for tortious personal injury. We find no subsisting public policy that justifies retention of a judicially created immunity that would bar recovery for injured victims in such cases as the present.

Id. at 273. We further explained in Boblitz:

'[W]e have never construed [the doctrine of stare decisis ] to inhibit us from changing or modifying a common law rule by judicial decision where we find, in light of changed conditions or increased knowledge that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people.'

Id. at 274 (quoting Harrison v. Montgomery Cnty., 295 Md. 442, 459 (1983)).[9] We have also considered Supreme Court analysis of stare decisis:

The Supreme Court has stated that 'it is common wisdom that the rule of stare decisis is not an 'inexorable command, ' and certainly it is not such in every constitutional case.' Planned Parenthood v. Casey, 505 U.S. 833, 854, 112 S.Ct. 2791, 2808, 120 L.Ed.2d 674 (1992).
Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process . . . . Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent. Stare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision. [Citations omitted] [Internal quotation omitted.] Payne v. Tennessee, 501 U.S. 808, 827-28, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991).

Bozman, 376 Md. at 493–94 (quoting Perry v. State, 357 Md. 37, 96–100 (1999)) (emphasis added).

         In short, we have recognized two circumstances for departing from stare decisis: (1) when the prior decision is "clearly wrong and contrary to established principles" or (2) when "the precedent has been superseded by significant changes in the law or facts." DRD Pool Serv., Inc. v. Freed, 416 Md. 46, 64 (2010) (citations and internal quotation ...


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