Circuit Court for Montgomery County Case No. 0000139854FL
Nazarian, Friedman, Fader, JJ.
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.
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.
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.
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.
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
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.
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.
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.
separating, Father and Parent agreed to share custody of L
using a 2/2/5/5 custody schedule. 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.
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."
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.
The Circuit Court Correctly Applied The Standard For De
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.
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
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
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."  Janice M. v. Margaret K., 404 Md.
661, 680-81 (2008), overruled by Conover, 450 Md. at
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.
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
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 ...