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Kpetigo v. Kpetigo

Court of Special Appeals of Maryland

August 30, 2018


          Circuit Court for Montgomery County Case No. 0000139854FL

          Nazarian, Friedman, Fader, JJ.


          Nazarian, J.

Parenthood is not an object of appetite or even desire. It is an object of will. There is no appetite for parenthood; there is only a purpose or intention of parenthood.[1]

         As society evolves in its recognition of relationships and families not formed purely by biology, so too must the law. Hale Kpetigo ("Father") asks us to reverse the judgment of the Circuit Court for Montgomery County finding his ex-wife, Rebecca MacVittie Kpetigo ("Parent"), a de facto parent-a status not recognized by the Court of Appeals until Conover v. Conover, 450 Md. 51 (2016)-of F, his son from a prior relationship, and granting her visitation with him. Father also asks us to decrease the child support the court ordered him to pay Parent for the care of their son, L, and to revoke the tie-breaking authority to Parent as part of their joint legal custody of L. We reject Father's argument that Conover recognized de facto parenthood only for same-sex married couples, and we affirm the judgment except as to the child support order. We remand for the limited purpose of re-calculating child support using Parent's up-to-date income or for the circuit court to explain its rationale for using the older figure.

         I. BACKGROUND

         While they were married, Parent and Father parented two young boys. L is their biological child and was born during the marriage. F is Father's son from a previous relationship. F was born in France and his mother was a resident of the Ivory Coast; she was named as a party in this action, but never appeared and has not participated.

         From the time he was approximately four months old, F visited Father in the United States. At that point, Father was not yet a U.S. citizen, but he lived here during the time he dated, and then married, Parent. Whenever F visited, both Father and Parent cared for him. They married in 2009, when F was approximately three years old; F lived practically full time with them by that point. Father and F both obtained U.S. citizenship through Parent.

         After their marriage, Parent expressed interest in adopting F, but Father was reluctant to risk disrupting the relationship between F and his mother. Even so, as the circuit court observed in its memorandum opinion and order, Parent "cared for [F] as if he were her own child" and was involved in all aspects of his life:

[Parent] picked him up and dropped him off at school, play dates, doctor appointments, and extracurricular activities . . . . [She] packed his lunches, went to parent-teacher conferences, and coordinated his education, daycare, and babysitters. . . . [S]he took time off and altered her work and school schedule to be with [F] as needed. With the help of her extended family, [Parent] financially supported [F]. As a result, [F] has significant relationships with many members of [Parent]'s family. [F] regularly vacationed in Cape Cod with [Parent]'s parents and established close relationships with [Parent]'s siblings, whom he calls Auntie and Uncle, and their children whom he considers his cousins.

         L was born in 2013. According to testimony at trial, L and F had a close relationship, and the couple made no distinctions about who was whose biological child.

         In 2014, F was abducted by his mother during a trip to visit her in Africa. Both Parent and Father worked tirelessly to regain custody-both made calls to the FBI, Congressmen, local and foreign embassies, and both made personal visits to the mother's house in Africa. F was returned after sixty-two days, and Father gained full physical and legal custody; a warrant was issued for the mother's arrest. F's mother visited once in late 2015, but she has not been in the United States to see him since the warrant was issued. She does call and video chat with him.

         Parent and Father separated in December 2015. Until then, F had resided full-time with Father and Parent. Although both F and L lived with Parent at first, F eventually moved to live with Father. Even after they separated, Parent continued to visit F until Father restricted her access to him. All told, F lived full-time with both for at least six-and-a-half years by the time he turned 11.

         Upon separating, Father and Parent agreed to share custody of L using a 2/2/5/5 custody schedule.[2] Additionally, Father agreed to allow F to have visitation with Parent. At first, Parent had free access to F and saw him almost every day, but shortly thereafter Father restricted her access. Nevertheless, Parent purchased a home near Father's to minimize disruptions to the boys' lives.

         In March 2016, Parent and Father entered into a Voluntary Separation and Marital Settlement Agreement (the "Agreement") that formalized the arrangements they had been following. The Agreement confirmed that they shared joint legal and physical custody of L. Father agreed to pay Parent $300 per month for L's care. But the Agreement did not address F, or Parent's right to visitation with F, because, according to Parent, Father "was holding the separation agreement over [her] head basically saying that [she] c[ould] see [F] once [they] figure out the written stuff . . . ." Parent testified that Father "indicated that he wouldn't negotiate [F] until [they] had signed the settlement agreement."

         On October, 13, 2016, Parent filed for a limited divorce. She amended her complaint (the "Complaint") to seek an absolute divorce, enforcement of the Agreement, child support, tie-breaking authority for matters pertaining to L, and visitation with F. Trial was held in October 2017, and on December 7, 2017, the trial court issued an order granting Parent $1, 057 per month of child support for the care of L and joint legal custody of L, with tie-breaking authority for Parent. The court also found that Parent qualified as F's de facto parent under the factors set forth in Conover v. Conover, 450 Md. 51, 74 (2016), that it was in F's best interests to maintain his relationship with Parent, and that Parent was entitled to visitation with F. Father filed a timely appeal. We include additional facts below as necessary.


         A. The Circuit Court Correctly Applied The Standard For De Facto Parenthood.

         First, Father challenges the circuit court's decision finding Parent a de facto parent of F and, after finding as well that continuing F's relationship with Parent was in F's best interests, ordering visitation. He quarrels less with the visitation order itself-he consented to visitation both before trial and during his trial testimony-than with the court's analytical path. He argues that the court erred in analyzing Parent's request for visitation using the de facto parenthood standard articulated in Conover rather than treating Parent as a third party, which would have required the court to find him unfit or that exceptional circumstances applied. Conover, he says, is limited to same-sex married couples, and he's right that Conover itself involved a same-sex divorce. But nothing in the principles underlying the Conover decision or de facto parenthood writ large limits de facto parenthood to the same-sex context. The circuit court applied the right standard and applied it correctly.

         We review visitation and custody orders for abuse of discretion. Walter v. Gunter, 367 Md. 386, 391-92 (2002). "There is an abuse of discretion where no reasonable person would take the view adopted by the [trial] court, or when the court acts without reference to any guiding rules or principles." In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997) (cleaned up). If, however, the order involves an interpretation and application of statutory or case law, we review the trial court's conclusions de novo, Walter, 367 Md. at 391-92, and Father's challenge here falls into this latter category.

         Generally, step-parents who have neither adopted a child nor been declared his guardian have no parental rights or obligations that survive divorce. Bledsoe v. Bledsoe, 294 Md. 183 (1982) (duty of child support does not extend to step-parent); see also Brown v. Brown, 287 Md. 273 (1980); Rand v. Rand, 280 Md. 508 (1977); Blades v. Szatai, 151 Md. 644 (1927); Alvey v. Hartwig, 106 Md. 254 (1907); Greenwood v. Greenwood, 28 Md. 369 (1868); see also 1 W. Blackstone, Commentaries on the Laws of England 447 (Christian ed., Phila. 1854) ("[T]he duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation laid on them not only by nature herself, but by their own proper act, in bringing them into the world: . . . By begetting them, therefore, they have entered into a voluntary obligation to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved."). Instead, step parents previously have stood in the same shoes as other non-parental third parties.

         Before it could order custody or visitation to a step-parent, a court historically had to find first that the child's biological or adoptive parents were unfit or that exceptional circumstances existed, and then that custody or visitation serves the best interests of the child. See Ross v. Hoffman, 280 Md. 172, 178-79 (1977) ("When the dispute is between a biological parent and a third party, it is presumed that the child's best interest is subserved by custody in the parent. That presumption is overcome and such custody will be denied if (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child."); see also Koshko v. Haining, 398 Md. 404, 419 (2007). In recent years, however, courts across the country have recognized as de facto parents a narrow class of third parties who have a special relationship with a child. Stated generally, a de facto parent is a non-related adult "who claims custody or visitation rights based upon the party's relationship, in fact, with a non-biological, non-adopted child." [3] Janice M. v. Margaret K., 404 Md. 661, 680-81 (2008), overruled by Conover, 450 Md. at 66.

         Maryland has moved carefully toward recognizing de facto parenthood. Our Court did so initially in S.F. v. M.D., 132 Md.App. 99, 111-12 (2000), overruled by Janice M., 404 Md. at 685, and adopted a four-part test articulated by the Wisconsin Supreme Court in In re Custody of H.S.H.-K, 193 Wis.2d 649 (1995). The Wisconsin court's test required a putative de facto parent to prove a parent-caliber relationship with the child that had formed with a biological or adoptive parent's consent and that demonstrated a direct and tangible commitment to parenting him:

(1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

In re Custody of H.S.H.-K, 193 Wis.2d at 694-95.

         When first faced with the question in Janice M. v. Margaret K., 404 Md. 661, 682- 85 (2008), however, the Court of Appeals declined to recognize "de facto parent status [as] a [] legal status in Maryland," declined at that point "to distinguish de facto parents from other third parties," and maintained the requirement that third parties seeking custody or visitation must show the biological parent was unfit or that extraordinary circumstances existed. Id. at 684-85. The Court found de facto parenthood inconsistent with McDermott v. Dougherty, 385 Md. 320, 353 (2005) and Koshko, 398 Md. at 437-38, two cases that involved grandparents petitioning for visitation and who, in both cases, were "pure third part[ies]," McDermott, 385 Md. at 356-57, distinct from the psychological or de facto parents recognized in other jurisdictions. Janice M., 404 Md. at 685; see also id. at 706 (Raker, J., dissenting) ([McDermott and Koshko] "dealt with the rights of pure third parties, and not those of de facto parents."); Koshko, 398 Md. at 443 ("Now that we conclusively have stated in McDermott that parental unfitness and exceptional circumstances shall be threshold considerations in third party custody determinations, it is appropriate that we now also apply those considerations in third party visitation disputes."). Although the case arose in the context of a same-sex couple, the putative de facto parent in Janice M. didn't argue for a test specific to same-sex couples, 404 Md. at 686, and the Court seemed concerned that de facto parenthood would be difficult to limit. Id. at 685 ("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."). As a result, all non-parents seeking custody or visitation were required to prove that the parents were unfit or that exceptional circumstances compelled a court-ordered override of the parents' wishes.

         In Conover, however, the Court of Appeals recognized de facto parenthood and adopted the Wisconsin test. The Court grounded its decision in the fact that "the precedent was 'clearly wrong and contrary to established principles, '" "the passage of time and evolving events have rendered Janice M. obsolete," and that "a majority of states, either by judicial decision or statute, now recognize de facto parent status or a similar concept." Conover, 450 Md. at 77-78. Like Janice M., Conover involved a same-sex couple who "discussed having a child and agreed that [one] would be artificially inseminated from an anonymous donor" whose features were similar to the other. 450 Md. at 55. They married in the District of Columbia when the child was six months old and divorced two years later. The non-biological spouse sought visitation, which the biological parent opposed. Id. The circuit court denied visitation, finding the non-biological parent spouse a third party who had failed to prove unfitness or other exceptional circumstances. We affirmed the circuit court's decision because Janice M. compelled us to:

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 ...

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