Caldwell v. Sutton ( 2022 )

Sheila Caldwell v. Marquita Sharrice Sutton, No. 424, September Term, 2022. Opinion
by Graeff, J.
FAMILY LAW – CHILD CUSTODY – THIRD-PARTY CUSTODY OF CHILD –
DE FACTO PARENTHOOD – CONSENT TO FORMATION AND
ESTABLISHMENT OF PARENT-LIKE RELATIONSHIP WITH CHILD –
“GOOD CAUSE” TO AWARD CUSTODY PURSUANT TO MD. CODE ANN.,
FAM. LAW ART. § 9-101.2
A court order granting custody to a third party, by itself, does not terminate the biological
parent’s parental rights or give the third party status as a legal parent in a subsequent
custody dispute.
When a legal parent, who consented to custody while the parent was in jail, is released and
desires to regain custody, the trial court did not err in finding a material change in
circumstances.
Md. Code Ann., Fam. Law Art. (“FL”) § 9-101.2(a) (2019 Repl. Vol.), provides that “a
court may not award custody of a child or visitation with a child” to a parent who has been
found “guilty of first degree or second degree murder of the other parent of the child,”
“unless good cause for the award of custody or visitation is shown by clear and convincing
evidence.” In this context, “good cause” means a substantial reason to find that it is in the
child’s best interests to return to the parent’s custody. The trial court did not abuse its
discretion in finding good cause where Mother, who had been found guilty of murdering
her husband and the father of her child, had no prior convictions, there was no evidence
that she had committed any acts of violence or aggression since the murder, her motivation
for committing the murder stemmed from years of physical and sexual abuse at the hands
her husband, she had taken concrete steps to rebuild her life, she had complied with the
terms of her probation, and she genuinely wanted to be with her son.
If a legal parent consents to a parent-like relationship between a child and a third party, a
court may find, even if the parent subsequently opposes the grant of de facto parenthood
status, that such status is shown if all factors of the test set forth in Conover v. Conover,
450 Md. 51 (2016), are satisfied.
Circuit Court for Montgomery County
Case No. 116381FL
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 424
September Term, 2022
______________________________________
SHEILA CALDWELL
v.
MARQUITA SHARRICE SUTTON
______________________________________
Wells, C.J.,
Graeff,
Arthur,
JJ.
______________________________________
Opinion by Graeff, J.
______________________________________
Filed: November 30, 2022
*Albright, J., did not participate in the Court’s
decision to designate this opinion for publication
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
pursuant to Md. Rule 8-605.1.
2022-11-30 10:55-05:00
Gregory Hilton, Clerk
This appeal involves a custody ruling by the Circuit Court for Montgomery County.
Marquita Sutton (“Mother”), appellee, filed a motion to modify custody and visitation of
her son (“Child”), who had been placed in the legal and physical custody of her mother,
Sheila Caldwell (“Grandmother”), appellant, after Mother killed her husband and Child’s
father (“Father”). The court found that there had been a material change in circumstances
justifying a modification of custody, and there was good cause pursuant to Md. Code Ann.,
Fam. Law Art. (“FL”) § 9-101.2 (2019 Repl. Vol.), to permit an award of custody to
Mother, a parent found guilty of murdering Child’s other parent.1 The court further found
that Mother was a fit and proper person to have custody of Child, that exceptional
circumstances did not warrant awarding custody to a third party, that Grandmother was not
a de facto parent, and that it was in Child’s best interest for Mother to be awarded sole legal
and sole physical custody of him, with a three-month graduated transition period for the
change in physical custody.
1
Md. Code Ann., Fam. Law Art. (“FL”) § 9-101.2(a)(1) (2019 Repl. Vol.), provides,
in pertinent part, as follows:
[U]nless good cause for the award of custody or visitation is shown by clear
and convincing evidence, a court may not award custody of a child or
visitation with a child . . . to a parent who has been found by a court of this
State to be guilty of first degree or second degree murder of the other parent
of the child, another child of the parent, or any family member residing in
the household of either parent of the child.
On appeal, Grandmother presents four questions for our review,2 which we have
consolidated and rephrased, as follows:
1. Did the circuit court err or abuse its discretion in modifying custody
to grant Mother sole legal and physical custody of Child?
2. Did the circuit court err by ordering Grandmother to pay for
reunification therapy and monitored exchanges?
For the reasons set forth below, we conclude that, although the court was correct in
portions of its analysis, it erred in one aspect of its analysis of the custody issue.
Specifically, the court erred in finding that Grandmother failed to show that she was a de
facto parent. Therefore, we shall affirm, in part, and vacate, in part, the judgment of the
circuit court and remand for further proceedings.
2
The questions presented by Grandmother are as follows:
1. Did the court err by considering evidence that predated the last
controlling custody order?
2. Did the court err by failing to recognize Appellant’s previously
established parental and custodial status?
3. Did the court err by awarding Appellee sole legal and sole physical
custody?
4. Did the court err by ordering Appellant to pay for reunification
therapy and monitored exchanges?
2
FACTUAL AND PROCEDURAL BACKGROUND
I.
Events Leading to Award of Custody to Grandmother
On December 12, 2013, when Child was 21 months old, Mother fatally stabbed
Father more than fifty times at their home in Odenton, Maryland. Child was in the home,
but he did not witness the stabbing. Mother took Child to Grandmother’s house and
surrendered to the police. She subsequently was charged with first-degree murder and held
without bail pending trial.
On December 20, 2013, Grandmother filed an emergency complaint for custody of
Child, alleging that Mother could not provide him with protection or a stable home because
she was incarcerated and awaiting trial for Father’s murder. Ten days later, the circuit
court granted Grandmother temporary sole legal and physical custody of Child.
On September 17, 2014, while Mother was in custody and awaiting trial, she signed
a form consenting to Grandmother having sole legal and physical custody of Child, stating
that it was in Child’s best interest for Grandmother to become his custodian. The form
stated that Mother had the right to withdraw her consent prior to the time the court granted
custody.
On December 19, 2014, the circuit court held a custody hearing. Mother was not
present at the hearing. That same day, the court issued an order granting Grandmother sole
3
legal and physical custody of Child. It further ordered that Mother “shall have reasonable
access to the child within [Grandmother’s] discretion.”3
II.
Mother’s Murder Conviction and Sentence
On September 8, 2015, Mother entered an Alford plea to second-degree murder.4
The court sentenced her to 30 years’ incarceration, all but ten years suspended.
While imprisoned, Mother maintained contact with Child, speaking to him by
telephone approximately once a month, seeing him in person “at least once a year,” and
sending him cards and gifts. She also took numerous parenting and therapeutic classes.
In 2019, after hearing evidence from witnesses and domestic violence experts, the
circuit court modified Mother’s sentence. On August 16, 2019, Mother was released from
prison. At that time, Child was seven years old.
III.
Mother’s Complaint to Modify Custody
Upon her release, Mother initially was allowed access to Child, usually at the
apartment of her maternal aunt, Tanya Glover. Within months, however, Grandmother
restricted her access and conditioned it upon Mother providing proof that she was
3
The caption of the order misidentified Mother as the plaintiff and Grandmother as
the defendant. The court entered a corrected order on February 4, 2015.
4
An Alford plea takes its name from North Carolina v. Alford, 400 U.S. 25 (1970),
and is a “guilty plea containing a protestation of innocence.” Bishop v. State, 417 Md. 1,
19 (2010) (citations omitted).
4
completing community service hours under the terms of her probation, seeking
employment, and receiving appropriate mental health therapy.
On February 24, 2020, six months after her release, Mother moved to modify
custody, seeking shared legal custody and a visitation schedule. She alleged that
Grandmother was denying her access to Child.
On October 8, 2020, Mother filed an amended complaint for modification of
custody, requesting sole legal custody and shared physical custody of Child, with
increasing access until Mother regained sole physical custody. She alleged that, since the
beginning of the COVID-19 pandemic in March 2020, Grandmother had permitted Mother
to see Child in person only three times, and she limited the visitation to one hour. Mother
alleged that her release from incarceration, which restored her ability to parent Child,
constituted a material change in circumstances.
On January 25, 2021, the court ordered a visitation evaluation. The next day,
Mother requested a pendente lite hearing on the issue of visitation.
Following an April 6, 2021, pendente lite hearing, the court ordered Grandmother
to make Child available for supervised visitation with Mother at her home on alternating
Saturdays from 12 p.m. until 2 p.m. and every Wednesday from 5 p.m. until 7 p.m. The
visits were to be supervised by Supervised Visitation and Investigations, LLC, a private
visitation supervision firm. Mother was ordered to pay for this service. Mother also was
permitted to have FaceTime contact with Child on Mondays and Fridays.
On October 20, 2021, the court issued an order, which it subsequently amended,
referring Mother to the Supervised Visitation Program operated by the Family Division of
5
the circuit court. Under the terms of the amended order, Mother was entitled to weekly
access with Child for between 45 and 60 minutes, as scheduled through Family Division
Services. The court later clarified that that order superseded the access provisions of the
pendente lite order.
IV.
The Merits Hearing
On February 2, 3, and 24, 2022, the circuit court held a merits hearing on Mother’s
amended complaint to modify custody. At that time, Child was one month shy of ten years
old.
A.
Merits Hearing: Day One
Mother testified, over objection, about the abuse she suffered during her relationship
with Father and the circumstances of his murder.5 Father, who worked in intelligence
services for the United States military, threatened to kill her, threatened to keep her away
from Child, and threatened her with a weapon on four occasions. She sought medical
attention on three occasions after Father punched her in the face. On the first occasion, he
broke one of her teeth; the second time she lost consciousness and was “seeing spots”; and
the third time she sustained bruising and swelling and again saw “spots.” Mother called
the police three or four times during their relationship, filed for a protective order on one
occasion, and sought assistance from the military. The military “red flagged” Father, asked
5
We will discuss Grandmother’s objections to this testimony later in this opinion.
6
him to move out of the house, and enrolled the family in counseling. Mother explained
that she was scared to leave because Father tracked her phone and her vehicle.
Mother introduced into evidence photographs taken in June 2013, six months prior
to the murder, showing injuries to her face caused by Father “hit[ting her] repeatedly in the
face after an argument.” The photographs depict bruising and swelling around Mother’s
eye and broken blood vessels in the white of her eye. She also introduced into evidence a
text message that Grandmother sent to her after that incident expressing distress about
Mother’s injuries and advising Mother not to accept Father’s apologies or take him back.
She warned Mother that it “will only get worse until . . . .”
On December 12, 2013, Father became angry because he thought Mother was
viewing photographs of her June 2013 injuries on her computer. They were in the
bedroom, and he tried to force her to engage in anal sex with him. Mother attempted to
run out of the room, but he blocked her and burned her with candle wax. She grabbed his
army knife off the bedside table and began stabbing him. She did not know how many
times she stabbed him until the police told her.
Before Mother turned herself in, she took Child to Grandmother’s home.
Grandmother took Mother to the hospital and hired a lawyer for her. Mother testified that
she decided to enter an Alford plea because she wanted to “take responsibility for [her] role
in what happened” and to “make sure that [she] would be able to get back home to [her]
son.”
7
While incarcerated, Grandmother or Mother’s aunt brought Child to visit her “at
least once a year,” and she spoke to him by telephone once or twice every month. Mother
sent Child cards and presents for holidays.
After her release, Mother complied with the conditions of her probation. She began
therapy during incarceration and continued after her release. She met with her therapist
weekly. Mother explained that she was processing her traumatic past, both during her
childhood and in her relationship with Father.6
Mother had been living in a one-bedroom apartment in Silver Spring for almost a
year. She had furnished a den in the home as Child’s bedroom. She worked full-time at an
engineering firm and ran a small catering business on the side. She was in a serious
relationship with someone who lived in Virginia.
When Mother initially was released from prison, she visited Child routinely with
Grandmother or at her aunt’s apartment. That changed at the end of September 2019, after
Grandmother sent Mother a “list of demands” by text message. Grandmother told Mother
not to contact her about visits with Child until she obtained a job and made progress on her
community service hours, which were a condition of her probation. During an
6
Mother testified that Grandmother used physical discipline on her when she was a
child, choking her and beating her with a belt. She was disciplined “very frequently.” In
her testimony, Grandmother did not recall ever choking Mother but acknowledged that she
used a belt on Mother. Grandmother testified that it was an “era” when physical discipline
was acceptable, but she now understands that this form of discipline is not appropriate.
She did not use physical discipline with Mother’s younger half-sister, L.F., or Child. L.F.
confirmed this in her testimony.
8
approximately 19-month period before the court entered the pendente lite order, Mother
saw Child 15 times or less, never for more than 2 hours.7
After the COVID-19 pandemic began in March 2020, Grandmother restricted
visitation further because of concerns about transmission of the virus. Mother testified that
she was not permitted to see Child in person for Easter, Mother’s Day, her birthday,
Halloween, or Thanksgiving in 2020 and only was allowed a 45-minute visit on Christmas
Day 2020, in the hallway of Grandmother’s apartment building.8 Similarly, in 2021,
Mother was not permitted to see Child in person for Easter, his birthday, or Christmas.
Mother spoke to Child on Christmas Day in 2021 and learned that he had COVID.
Grandmother had not shared that information with her. Mother testified that Grandmother
never shared any of Child’s medical or educational records with her. She learned for the
first time during the pendente lite hearing that Child was in therapy.
In early 2021, Grandmother accused Mother of plotting Father’s murder. This was
the first time Grandmother had ever made such a statement to Mother. The accusation was
made after Grandmother abruptly ended a telephone call between Mother and Child after
she overheard Mother telling Child that she hoped that they could “see each other soon.”
On cross-examination, Mother was asked about an incident in 2012 when she was
charged with first-degree assault of Father. Mother explained that she had barricaded
7
Mother testified that the one exception was when Child stayed with Mother’s
paternal grandmother after Christmas in 2019, and Mother stayed there as well. That was
the only overnight visit Mother had with Child after her release from prison.
8
As we shall discuss, infra, this visit was unannounced.
9
herself inside their home, blocking the door with chairs, because she was fearful of Father.
He nevertheless “burst through the door.” When he reentered the home, Mother grabbed
his phone, ran onto the balcony, and threw the phone over the railing. When Father ran
onto the balcony, Mother closed the balcony doors and locked him outside. She then called
911. When Father attempted to break the glass doors and reenter the home, Mother grabbed
a knife and threatened Father with it.
Mother denied ever speaking to anyone about wanting to have Father killed. She
acknowledged that her uncle had offered her morphine to give to Father, but she stated that
it was offered to allow her and Child to leave Father. She was not comfortable using
morphine against Father. She also acknowledged that she used a stun gun against Father
on the night of the murder, explaining that she tried to try to stop Father’s assault on her,
but it was ineffective, and he knocked it out of her hand.
Mother called her close friend, Ramim Ber Arar, as a character witness and to
corroborate her allegation that Father abused her. Ms. Ber Arar testified remotely from
Germany, where she lived. She testified that Father often followed Mother around when
he was not with her. On one occasion in 2010, Mother drove Ms. Ber Arar to McDonalds,
and Father pulled up next to their car on the road. He “pulled out a gun and rolled his
window down and just said hi” to Ms. Ber Arar. When Mother drove away, Father sped
after them and blocked her car. Mother drove around Father’s car and Ms. Ber Arar called
the police. The dispatcher told her that Mother should drive to the nearest gas station and
wait there for the police to arrive, which they did. They then “went to a safe place.”
10
Ms. Ber Arar described Mother as “the sweetest person on earth,” loyal, and warm.
In her view, Mother was a fit and proper person to have custody of Child.
On cross-examination, Ms. Ber Arar acknowledged that she had not seen Mother in
person since 2011, when Mother and Father moved back to the United States. She had
never met Child in person. She communicated with Mother daily, however.
Two other witnesses testified about Mother’s character. Tillena Bullock, an adjunct
professor at the Community College of Baltimore County (“CCBC”), met Mother during
her incarceration while teaching life skills and conflict resolution courses at the Jennifer
Road Detention Center. She described Mother as loving and caring with the other prisoners
and a leader and a mentor for them. Ms. Bullock also taught courses at the Maryland
Correctional Institution for Women and saw Mother twice a month after Mother transferred
to that facility.
After Mother’s release, Ms. Bullock asked her to give guest lectures at CCBC about
the judicial system, her experience in prison, and domestic violence. Ms. Bullock spoke
highly of Mother, characterizing her as kind, resilient, dedicated, and loving. She believed
Mother would be a fit and proper person to have custody of Child. On cross-examination,
Ms. Bullock acknowledged that she had never observed Mother and Child together in
person.
Mother’s partner, Delores Boyd, testified that she and Mother had been in a
relationship for two years. She lived in Virginia but arranged to spend time with Mother
every week. She had observed Mother interact with Child on the phone frequently. Ms.
Boyd had never heard Mother make an inappropriate remark to Child or discuss the custody
11
dispute with him. She had no concern about Mother’s mental health and had never
observed her exhibit violent or aggressive behavior. Ms. Boyd was comfortable letting
Mother spend time with her grandchildren, who were three months and four years old.
Ms. Boyd also testified about a February 21, 2021 FaceTime interaction with
Mother and Child that she observed. She heard Mother tell Child that she was “working
hard so that they could see each other” and that “she loved him.” Grandmother interjected:
“[W]hat did you say to him?” Grandmother became upset and told Mother that she cannot
say that to Child and that she needed to have those conversations directly with
Grandmother. Mother clarified that she meant that she would be able to get vaccinated
soon and then it would be safe for her to see Child in person.
Grandmother responded that she did not have to allow Mother to speak to Child if
Mother would not “abide by [her] rules,” and they were “in this situation because [Mother]
decided to execute [Father].” Grandmother then stated that Child was in her custody
because Mother “decided to plot, plan, and kill his father.” Mother asked Grandmother not
to speak about the circumstances of Father’s death with Child in the house. Grandmother
then screamed repeatedly at Mother that she had “killed his father” and hung up.
Grandmother sounded like she was “losing control.”
Mother called three witnesses who had supervised visits between her and Child
between 2019 and 2022. Leslie Foster worked with Mother for a year as part of an
internship at the University of Maryland School of Social Work. She met Mother shortly
after her release from prison, in September 2019, and supervised a visit at a pumpkin patch
between Mother and Child in October 2019. According to Ms. Foster, Mother’s love for
12
Child was apparent. Child was “very receptive” and thrilled to be with Mother. Child was
tearful on the way home from the visit and somber. He asked when they would be able to
spend a “long time” together again.
Ms. Foster described Grandmother as difficult and demanding of information about
Mother, including about her mental health treatment. After Ms. Foster supervised the
October 2019 visit, Grandmother did not respond to her inquiries about scheduling another
visit. Ms. Foster had no reservations about Mother’s parenting.
Maeve McGrath, who supervised some of Mother’s visits with Child under the
original pendente lite order from May 19, 2021, through October 2021, testified that
Mother was very interactive with Child, attuned to his needs, loving, and affectionate. She
also displayed patience with him and was supportive when he spoke about Grandmother.
During her observations, Ms. McGrath never observed any behavior by Mother that
concerned her.
Ms. McGrath ceased supervising visits after the court entered the amended pendente
lite order referring Mother to court supervised visits. Mother’s counsel, however, had
reached out to see if Ms. McGrath could supervise a Christmas Day visit in 2021. Ms.
McGrath was available to supervise the visit, but Grandmother did not consent to the visit
because it was not required under the terms of the court order.
Stephanie Hess worked for the circuit court and supervised court ordered visits
between Mother and Child after the amended pendente lite order was entered. She testified
that she did not have any concerns about Mother’s fitness to parent Child based upon her
observation of three visits between November 2021 and January 2022.
13
Mother’s former criminal attorney, Thomas Stovall, testified about his interactions
with Grandmother after mother was arrested. He recalled meeting with Grandmother on
several occasions. Her focus during those meetings was on the benefits that Child would
be eligible to receive through the military and how she could secure custody of Child. Mr.
Stovall did not recall Grandmother asking any questions about Mother’s criminal case.
At the conclusion of Mother’s case, the court questioned her briefly on the record.
Mother testified that her relationship with Child was joyful and playful, but she was
mindful of maintaining her role as his mother because it was “easy for him to see [her] as
a playmate because [she was] not part of his life all the time.” She gave him responsibilities
when he was with her, like helping with the dishes and normal childhood chores.
B.
Merits Hearing: Day Two
On the second day of trial, Grandmother presented her case, beginning by recalling
Mother as a witness. Mother testified that she asked Grandmother to care for Child before
she turned herself in to the police in 2013. She acknowledged that she was aware that
Grandmother filed a complaint for custody of Child and that there was a hearing on her
complaint that Mother did not attend. She identified the document that she signed
consenting to Grandmother having sole legal and physical custody of Child, and it was
admitted in evidence.
Grandmother called two witnesses who testified that Mother planned to kill Father
and asked for their help. Kenneth Glover, Mother’s maternal uncle, testified that, in Fall
2013, Mother told him that she wanted Father “gone.” He offered Mother morphine, which
14
Mother accepted. Several days later, Mother called and said it “didn’t work.” She then
asked if he knew anyone who “would do that for her.” Mr. Glover understood Mother to
mean that she wanted to hire someone to kill Father.
Mr. Glover testified that, on the day after the murder, Mother showed up with Child
at Grandmother’s apartment. She had brought all of Child’s belongings. She told Mr.
Glover that she had killed Father the night before and asked him to “raise [Child]” because
she was going to “flee the country.” She asked him to come back to her house with her to
“finish cleaning up,” but he refused. He insisted that they call Grandmother, who was at
work. Mother waited at the apartment until Grandmother came home.
Eric Allen, Grandmother’s romantic partner for 20 years, testified that Mother called
him a few weeks before the murder and asked him to meet with her. They met in a parking
lot, and she was acting strangely and shaking. She told him what was going on between
her and Father, which Mr. Allen said was shocking. Mother asked Mr. Allen if he or
someone he knew could “get rid of” Father. She said she could pay someone. Mr. Allen
called Grandmother and told her what Mother asked him. The court confirmed through its
questioning that neither Mr. Glover nor Mr. Allen ever reported Mother’s alleged
statements to the police, either before or after Father’s death.
Mr. Glover and Mr. Allen also testified that Grandmother was loving and patient
with Child and was a fit and proper person to have custody of him. Mr. Glover had lived
with Grandmother and Child from 2013 until December 2020. He reported that Child
called Grandmother “mommy.” Mr. Glover had seen Mother several times since her
15
release, but they did not have much to say to each other due to the tension between her and
Grandmother over custody of Child.
Grandmother’s older sister, Ms. Glover, also testified as a character witness for
Grandmother. She lived in the same apartment building on the same floor as Grandmother.
She visited Grandmother approximately twice a week, and Grandmother visited her once
a week. She cared for Child frequently when Grandmother was unavailable. Child was
intelligent, happy, well-disciplined, and appreciative. She had observed Grandmother
caring for Child since Mother’s arrest and all his needs were being met. Their relationship
was loving and affectionate. When Child misbehaved, Grandmother imposed
consequences, such as taking away his access to his iPad or video games. She never
observed Grandmother physically discipline Child. Ms. Glover believed with her “whole
heart” that Grandmother was a fit and proper person to have custody of Child. Ms. Glover
testified that she had no relationship with Mother anymore.
On cross-examination, Ms. Glover testified that she had facilitated visits between
Mother and Child during Mother’s incarceration and after her release. Ms. Glover
acknowledged an incident prior to Father’s death when Mother came to her apartment
wearing sunglasses. When Mother removed the glasses, she had a black eye and began
crying. She begged her aunt not to call the police, saying that it would “ruin Father’s Day”
for Father. In the aftermath of that incident, Ms. Glover recommended that Mother leave
Father and stay in a shelter near her house.
16
The court asked Ms. Glover if Mother’s behavior during visits with Child ever
caused her concern. She replied that the visits were “brief,” but that Mother never did
anything that caused her concern.
Grandmother’s younger daughter, Mother’s half-sister, L.F., testified that she was
in her final year of college in Ohio. Mother is 15 years older than L.F. L.F. described
Grandmother and Child’s relationship as very bonded and “average mother/son.” L.F.
described Grandmother as an amazing mom, who was always there for her.
L.F.’s relationship with Mother was “strained,” and she had seen her infrequently
since Mother’s release from prison. She was present the day that Mother and Grandmother
argued on the phone during a FaceTime visit between Mother and Child. Grandmother
“grabbed the phone” after Mother said something to Child about “doing everything in [her]
power . . . so [that they could] be together.” According to L.F., Grandmother then had a
conversation with Mother while L.F. took Child into another room.
Grandmother told L.F. that Mother had “lied about sexual allegations” pertaining to
L.F.’s biological father. L.F. did not believe that Mother was a fit and proper person to
have custody of Child.
Grandmother, who was 54 years old at the time of trial, testified that Mother called
her a few months before Father’s death and said she was “unhappy in her relationship” and
“wanted him dead.” Mother wanted Grandmother to ask Mr. Allen to murder him.
Grandmother was shocked and refused to do so. She told Mother to leave Father, which
she previously had suggested when Mother complained about him cheating on her.
Grandmother later participated in a three-way call involving Mr. Allen and Mother, during
17
which she heard Mother ask Mr. Allen directly to help her to kill Father. Grandmother
screamed at Mother to never call Mr. Allen again.
On December 12, 2013, Grandmother was at work when Mr. Glover called her and
put Mother on the phone. Mother told Grandmother she “finally did it. . . . I killed him.”
Mother said that she needed to finish cleaning up at the house and asked Grandmother to
go with her. She said that she was then going to leave the country. Grandmother came
home and took Mother to the hospital, where she was treated for cuts on her hands and a
dislocated shoulder.
Grandmother helped Mother retain Mr. Stovall, on a recommendation from a
coworker. Grandmother asked Mr. Stovall about custody of Child because the military
needed a custodian to receive his benefits and it could not be Mother.
In the first year of caring for Child, Grandmother took him to more than a dozen
medical appointments. He required surgery in May 2014, and she and Mr. Glover stayed
with him during the procedure. He later was diagnosed with attention-deficit hyperactivity
disorder (“ADHD”), as well as post-traumatic stress disorder (“PTSD”) and a development
delay. He was seeing a child psychiatrist, a behavioral specialist, an ENT, and an
audiologist.
After Grandmother was granted sole legal and physical custody of Child, she
allowed Mother to see him. She brought him to see Mother at the detention center and
later at the prison where she served her sentence. She also facilitated phone calls between
them, but she noted that Child often had difficulty focusing on the calls.
18
Grandmother described Child as creative and “a great engineer.” He was currently
attending his zoned elementary school near Grandmother’s home and was in the 4th grade.
He was doing well in school, receiving mostly As and Bs. Grandmother worked closely
with his teachers and attended his individual education plan meetings relative to his
ADHD. Child had his own bedroom at Grandmother’s apartment, though he had shared
with L.F. when she lived at home.
Grandmother believed that she should retain custody of Child because he was her
“heart” and her “world.” He needed love and stability, and she had done everything in her
power to give him both. She wanted him to grow up in an environment with “no drama.”
Grandmother explained that Mother’s release in August 2019 was unexpected and
sudden. Since Mother’s release, Grandmother had consulted with Child’s behavioral
specialist, who referred Child to a child psychiatrist in the summer of 2021. He had his
first session in November 2021. Grandmother explained that she was not trained to help
Child process the circumstances of Father’s death and his relationship with Mother.
After Mother was released from jail, she broke rules during her visits with Child.
Specifically, Mother took Child to a store during a supervised visit when the pendente lite
order required the visits to take place at Mother’s home, and she walked Child to
Grandmother’s car, although the pendente lite order required her to have no interaction
with Grandmother. Additionally, Mother showed up at Ms. Glover’s apartment in
September 2020 and requested a visit with Child, which Grandmother allowed, but then
Mother took off the mask she was wearing to protect Child from the possibility of being
infected with the COVID-19 virus. Mother also breached Grandmother’s rules on
19
Christmas Day 2020 when she showed up at the apartment building unannounced,
decorated the hallway wall like a Christmas tree, and put presents for Child and her family
members under it. Grandmother was frustrated because Mother did not communicate with
her first and it “felt like a photo op.” Mother’s refusal to recognize any boundaries caused
friction between them.
Grandmother asked the court to continue the status quo by allowing her to retain
sole legal and physical custody of Child. She suggested that visitation with Mother remain
supervised, and that Child’s therapist determine how often Child should see Mother,
consistent with his best interests.
On cross-examination, Grandmother acknowledged that when Child came into her
care, she told a caseworker from the Anne Arundel County Department of Social Services
that Mother’s “first and foremost priority was [Child].” Many years later, during this
litigation, Grandmother wrote a letter to the court custody evaluator in which she stated
that she was fighting for “more than just [her] grandchild, [she was] fighting for [her]
family’s respect.” She added that she felt that she “got it right” when she raised L.F. and
“left someone from my bloodline who c[ould] represent the family like [her late] mom
would have wanted.”
In her answers to interrogatories, Grandmother was asked to identify Mother’s
strongest attribute as a parent. She responded: “None.”
In response to questioning from the court, Grandmother testified that she receives
for Child’s care two military benefits and one benefit from the Social Security
Administration. The benefits total approximately $3,800 per month. Grandmother also
20
was the fiduciary of two trusts holding life insurance benefits that Child received upon
Father’s death and Mother’s murder conviction.
The court asked Grandmother if she had reached out to Mother to tell her that Child
contracted COVID in December 2021. She did not recall telling Mother because she was
busy taking care of Child, who was quite ill. She added that it was a struggle
communicating with Mother.
The court asked Grandmother to define a “healthy relationship with [her] daughter.”
Grandmother replied that it would start with Mother respecting boundaries, following rules
and guidelines and not missing supervised visits with Child for “flippant reasons.” The
court asked Grandmother why Child called her “Mommy.” She explained that he started
calling her that when he was very young and his “whole life was flipped upside down,”
and she thought he deserved that normalcy.
The court also questioned why Grandmother did not include Mother in holiday
gatherings before the pendente lite order was entered. Grandmother responded that she did
include her at first, but she started noticing “familiar behavior” that had “hurt a lot of
people.” Mother had not made good decisions throughout her life and decided to abandon
her son by murdering his father and then planning to flee the country without him.
Mother testified in rebuttal, denying that she planned to kill Father or that she ever
asked anyone to help kill him. When asked why she consented to Grandmother having
sole legal and physical custody of Child, she replied that she was worried that Father’s
family, who did not live locally, would try to obtain custody of him. It “was never [her]
intention to be a permanent arrangement.”
21
At the end of the second day of trial, Mother requested that the court enter an interim
access order until trial resumed. After hearing argument, the court ordered that Mother
would receive supervised access with Child at her house Saturday and Sunday from 10
a.m. until 4 p.m. for the two weekends before the next hearing date, then scheduled for
February 16, 2022. In addition, Mother was permitted to FaceTime with Child each
Monday and Friday before 7:00 p.m. The parties would split the cost of the supervisor
fees.
C.
Merits Hearing: Day Three
Trial resumed on February 24, 2022.9 Ms. Jackson, the court’s custody evaluator,
testified that she had completed a visitation evaluation in March and April 2021. Her report
was admitted into evidence. Grandmother provided Ms. Jackson with a long list of
concerns regarding Mother, including that Mother had “never made a decision that serves
[Child’s] best interest,” she is a “habitual liar and manipulator,” and Mother lied about the
circumstances of Father’s death and was violent and aggressive towards Father. Mother
expressed concerns about Grandmother limiting her access to Child, suggesting that
Grandmother was doing so to preserve her lifestyle with financial benefits that Child was
entitled to from Father’s life insurance policy and the military.
9
When the parties appeared for trial on February 16, 2022, Mother sought to
discharge her counsel and filed a pro se motion to recuse the trial judge. She ultimately
determined not to discharge counsel, and he argued her motion to recuse, which was
denied. Mother noted an immediate appeal from the denial of her motion to recuse and
from the interim access order, which this Court dismissed. See S.C. v. M.S.S., No. 2079,
Sept. Term, 2021 (filed Aug. 18, 2022).
22
Ms. Jackson remotely observed each party with Child and neither observation raised
concern. She also interviewed Child at the courthouse. He told Ms. Jackson that he calls
Grandmother “Mommy” and Mother “Mom.” He described spending most of his free time
at Grandmother’s house playing video games or on his iPad. He said he liked spending
time with Mother because she was fun, but he did not know much about her because he did
not get to see her often. He looked forward to visits with her. He did not want to talk to
Ms. Jackson about why he did not live with Mother. He only would say that Mother went
“to a place,” and he did not know why she went there because “she didn’t do a bad thing.”
He recalled hearing Mother and Grandmother argue over the phone one day after
Grandmother took the phone away from him while he was speaking to Mother. He was
confused about why they were upset. When asked what he would wish for if he had three
wishes, Child replied that he wanted to go to Disney World, own “every single RC car or
truck,” and “see my mom.”
Ms. Jackson interviewed numerous persons provided by both parties, including
Mother’s therapist, her probation agent, her former social worker, Child’s pediatrician, Mr.
Allen, Ms. Glover, L.F., Ms. Ben Arar, and Ms. Boyd. Mother’s therapist described
Mother as resilient, and she had no reservations about Mother’s ability to parent. Mother’s
probation agent said that Mother was compliant with the conditions of her probation.
Leslie Foster, Mother’s former social worker who had assisted with access to Child,
described Grandmother as challenging and overbearing. She observed “genuine love”
between Child and Mother during the one visit she supervised.
23
Mr. Allen told Ms. Jackson that Mother was a con artist who uses people. He said
that Child was happy with Grandmother, and she should be responsible for making
decisions about Child’s life.
Ms. Jackson also reviewed police reports, an investigatory report completed by the
Anne Arundel County Department of Social Services upon Mother’s arrest, Child’s school
reports, a psychosocial assessment of Mother completed after her release from prison, and
a psychiatric assessment of Mother. Ms. Jackson noted that, although Child’s pediatrician
reported that Child had met with a pediatric psychologist on six occasions between 2017
and 2020, Grandmother had not reported that he was in therapy. “Due to the
misinformation” about Child’s mental health history, the Child Privilege Attorney assigned
to Child was unable to speak to the pediatric psychologist prior to completion of the report.
Ms. Jackson concluded that both parties were fit to care for Child. She credited
Mother’s reports, the reports of her collateral witnesses, and other evidence showing that
Father committed intimate partner violence against Mother, including physical violence
and sexual violence. The evaluator had no concerns about Mother’s mental health given
her psychiatric evaluation and her continuation of therapy to address her PTSD diagnosis.
Ms. Jackson presented the parties’ competing viewpoints about the circumstances
surrounding Father’s death. She found that the relationship between Mother and Father
was “complicated and frankly, dangerous.” The military documented violence in their
relationship and “labeled them to be high risk.” Ms. Jackson noted that the State of
Maryland had determined that Mother served adequate time for her involvement in Father’s
death, and there was no reason to believe she was a danger to the community or to Child.
24
Ms. Jackson found that Child was comfortable with both parties, and he had a
“strong desire” to spend more time with Mother. She recommended that Child work with
a mental health professional to assist him as he asked more questions about the
circumstances of Mother’s conviction and Father’s death.
With respect to the sincerity of the parties’ requests relative to custody and
visitation, Grandmother said that she was fighting for Child and her “family’s respect.”
Ms. Jackson stated that Grandmother was “embarrassed and horrified about [Mother’s]
crime and incarceration.” Though Grandmother sincerely believed that it was in Child’s
best interest for him to remain in her care and to only have supervised contact with Mother,
Grandmother did not appreciate “how her gatekeeping behavior might impact [Child],”
noting that Child was not a “do over” for Grandmother’s failures in parenting Mother.
Child wanted and deserved to know Mother. Ms. Jackson believed that, if the court
maintained the status quo, Grandmother would continue to restrict Mother’s access to
Child.
Ms. Jackson found that Mother had “demonstrated the utmost sincerity in her
requests for custody and access” and shown that she was putting Child’s best interests first
despite her desire to parent him full time. She had been consistent in her desire to spend
time with Child since her release and had made every effort to see him. She understood
that Child’s relationship with Grandmother was significant, and they were well-bonded.
She wanted to support that relationship, and she had requested a gradual transition to her
custody.
25
Ms. Jackson noted that Child expressed a desire to spend more time with Mother.
She concluded that it would be in Child’s best interest to have “frequent and consistent
contact with [Mother]” and recommended a schedule of visitation going forward. With
respect to Mother’s request for custody of Child, Ms. Jackson found that she was “capable
of parenting [Child] independently,” but she needed to demonstrate those capabilities to
Grandmother and the court. She recommended that Mother continue in therapy.
Ms. Jackson found that Grandmother had stepped up to care for Child during a
difficult time and put his needs before her own. She likewise recommended that
Grandmother pursue therapy to process her trauma and learn “tools and strategies that
[would] be necessary in her co-parenting relationship with” Mother.
Ms. Jackson testified at trial consistent with her report. She considered it
“noteworthy” that Grandmother withheld from her the information that Child had seen a
therapist, and she was concerned that Grandmother restricted Mother’s access to Child.
With respect to Child calling Grandmother “Mommy,” Ms. Jackson noted that
Grandmother had filled that role in his life for a long time, but Child understood
“everyone’s role in his life,” and he knew that Mother was his mother.
Grandmother testified a second time on the final day of trial that she was fearful of
Mother. Grandmother worried that she might “end up like [Father].” She had spoken to
Ms. Jackson about her fears during the visitation evaluation, but they were not included in
the report.
In closing argument, Mother’s attorney argued that the court should award her sole
legal and physical custody of Child, either immediately or subject to the graduated
26
transition plan set forth in her amended complaint to modify custody. She maintained that
two material changes had occurred since the entry of the prior custody order: (1) Mother’s
release from prison; and (2) Grandmother’s decision to limit Mother’s access to Child.
Counsel argued that, because Mother was a fit parent according to Ms. Jackson and
everyone who had supervised visits between her and Child, she had a fundamental right to
parent Child absent evidence that Grandmother was Child’s de facto parent or proof of
exceptional circumstances making an award of custody to Mother detrimental to Child’s
best interests. Counsel asserted that Grandmother was not a de facto parent because she
did not assume the obligations of parenthood without expectation of financial
compensation, noting Mr. Stovall’s testimony that Grandmother was focused upon the
benefits she was entitled to receive by caring for Child and the lack of any evidence
showing how Grandmother spent nearly $3,800 per month on his care.
Turning to exceptional circumstances, counsel for Mother argued that there was no
evidence that returning Child to Mother’s care would be detrimental to his best interests.
To the contrary, the evidence showed that Mother was loving and attentive to Child’s
needs, and he was eager to spend more time with her and get to know her again.
Counsel next argued that FL § 9-101.2, which generally provides that a court may
not award custody to a parent found guilty of murder of the other parent, did not bar an
award of custody to Mother because the legislature included a good cause exception, which
Mother satisfied. Mother showed good cause by presenting evidence that she killed Father
in self-defense after years of documented domestic violence, that Child had remained in
contact with her since her conviction and continued to express an interest in seeing her,
27
and that Mother was not a risk to Child according to all the professionals who had been
involved in the case. Good cause also was evidenced by application of the best interest
factors, which counsel argued supported Mother’s request for custody.
Grandmother’s counsel argued that she should retain sole legal and physical custody
of Child. He argued that the law favored stability in custody when a child is thriving, as
the evidence showed in this case. Further, Grandmother’s counsel maintained that Mother
had not satisfied the high burden under FL § 9-101.2 to show by clear and convincing
evidence that there was good cause to award her custody of Child despite her conviction
for second-degree murder of Father. He pointed to the testimony from Mr. Allen, Mr.
Glover, and Grandmother that showed, contrary to Mother’s assertion of self-defense, that
Mother planned to murder Father and sought outside assistance.
Counsel argued that the evidence that Mother planned Father’s murder and, in the
aftermath of the murder, planned to flee the country, also supported a finding that she had
abandoned Child. He asserted that this abandonment, coupled with the overwhelming
evidence that Grandmother had occupied a parental role in Child’s life for many years,
amounted to exceptional circumstances.
The court held the matter sub curia. It entered a new interim access order granting
Mother alternating, supervised weekend access on Saturdays and Sundays from 10 a.m.
until 8 p.m. and Wednesday night dinner access in the week before a non-access weekend.
28
V.
Circuit Court’s Custody Order
On April 8, 2022, the circuit court issued a 36-page memorandum opinion granting
Mother sole legal and physical custody of Child. As discussed in more detail, infra, the
court found: (1) that Mother’s release from incarceration and other facts demonstrated a
material change in circumstances; (2) that Mother had proven by clear and convincing
evidence that good cause existed under FL § 9-101.2 to award her custody; (3) that it was
in Child’s best interest to return to the custody of Mother, his natural parent; and (4) that
Grandmother had not shown that Mother was unfit, that exceptional circumstances existed,
or that Grandmother was a de facto parent.
The court issued an accompanying order awarding Mother sole legal and physical
custody of Child. The transition of physical custody from Grandmother to Mother was
graduated, with Mother initially receiving unsupervised weekend access for three weeks,
then unsupervised alternating week-on, week-off access for two months, and then full
custody beginning July 1, 2022. The court further ordered that Mother and Child would
participate in reunification therapy, the cost of which would be split between the parties,
and that Child would continue in individual therapy.
This timely appeal followed.10
10
Grandmother moved to stay the court’s order pending resolution of this appeal.
The circuit court denied the motion.
29
STANDARD OF REVIEW
In an action tried to the court, we “review the case on both the law and the evidence”
and “will not set aside the judgment of the trial court on the evidence unless clearly
erroneous, [giving] due regard to the opportunity of the trial court to judge the credibility
of the witnesses.” Md. Rule 8-131(c). “‘When a trial court decides legal questions or
makes legal conclusions based on its factual findings, we review these determinations
without deference to the trial court.’” E.N. v. T.R., 474 Md. 346, 370 (2021) (cleaned up).
DISCUSSION
I.
Grant of Custody to Mother
Grandmother contends that the circuit court erred in granting sole legal and physical
custody to Mother for several reasons. Initially, she argues that the court erred in allowing
Mother to present evidence regarding events that predated the prior custody order, which
she alleges was inappropriate in a custody modification proceeding. Moreover, she asserts
that the court erred in its custody analysis by: (1) characterizing Grandmother as a third
person seeking custody, disregarding that she already had custody; (2) finding that she was
not a de facto parent; and (3) finding that exceptional circumstances did not exist to warrant
Grandmother retaining custody. Finally, Grandmother argues that the court erred by
awarding custody to Mother, who murdered Father, based on a finding of good cause
pursuant to FL § 9-101.2.
Mother contends that the circuit court properly awarded her custody. She asserts
that her request for modification of custody involved circumstances not in existence at the
30
time of the custody order, and evidence of Father’s previous domestic violence towards
her was properly admitted to show good cause to grant custody to her under FL § 9-101.2.
Mother argues that the circuit court did not abuse its discretion in its custody analysis and
properly found that Grandmother was a third party, not a de facto parent, and that
Grandmother failed to show exceptional circumstances. In any event, she asserts that, even
if the circuit court did err in this regard, any error was harmless because the court engaged
in a best interest analysis and determined that it was in Child’s best interest for Mother to
have full custody. Finally, Mother argues that the court did not err in finding that good
cause existed to support awarding custody to her.
A.
Custody Determinations Generally
“The fundamental liberty interests of parents provide the constitutional context that
looms over any judicial rumination on the question of custody or visitation.” Barrett v.
Ayres, 186 Md. App. 1, 17 (cleaned up), cert. denied, 410 Md. 560 (2009). “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.” Conover
v. Conover, 450 Md. 51, 60 (2016) (cleaned up). Accord Troxel v. Granville, 530 U.S. 57,
66 (2000) (Substantive due process protects “the fundamental right of parents to make
decisions concerning the care, custody, and control of their children.”). At the same time,
“[t]he primary goal of access determinations in Maryland is to serve the best interests of
the child.” Conover, 450 Md. at 60. Accord Taylor v. Taylor, 306 Md. 290, 303 (1986)
(“[I]n any child custody case, the paramount concern is the best interest of the child.”).
31
In custody disputes between parents, neither parent has a superior claim to the right
to custody, and the issue is decided based on the best interests of the child. McDermott v.
Dougherty, 385 Md. 320, 353 (2005). A different analysis applies, however, when a third
party seeks custody. Conover, 450 Md. at 60 (“[T]he rights of parents to custody of their
children are generally superior to those of anyone else.”). As the Court of Appeals has
explained:
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.
Id. (quoting McDermott, 385 Md. at 353). “‘Where parents claim the custody of a child,
there is a prima facie presumption that the child’s welfare will be best subserved in the care
and custody of its parents rather than in the custody of others, and the burden is then cast
upon the parties opposing them to show the contrary.’” McDermott, 385 Md. at 424(quoting Ross v. Pick, 199 Md. 341, 351 (1952)). Accord B.O. v. S.O., 252 Md. App. 486,
504 (2021) (A third party, such as a grandparent, “‘has no fundamental constitutional right
to raise the children of others.’”) (quoting McDermott, 385 Md. at 353).
Prior to 2016, when the Court of Appeals recognized de facto parenthood in
Conover, Maryland courts required third parties seeking custody to overcome the
presumption that the child’s best interests is to be in the parent’s custody by proving either
that the child’s natural parents were unfit to have custody or that there were exceptional
circumstances making parental custody detrimental to the best interest of the child.
Conover, 450 Md. at 61; Kpetigo v. Kpetigo, 238 Md. App. 561, 569 (2018) (quoting Ross
32
v. Hoffman, 280 Md. 172, 178–79 (1977)). “[I]n custody cases, ‘unfitness means an
unfitness to have custody of the child, not an unfitness to remain the child’s parents;
exceptional circumstances are those that would make parental custody detrimental to the
best interest of the child.’” E.N. v. T.R., 474 Md. at 372 (quoting In re
Adoption/Guardianship of H.W., 460 Md. 201, 217 (2018)). Only if the third party showed
unfitness or exceptional circumstances would a trial court “consider whether that third
party should be awarded custody under the best interests of the child standard.” Basciano
v. Foster, ___ Md. App. ___, No. 1978, Sept. Term, 2021, slip op. at 20 (filed Nov. 1,
2022). Accord Conover, 450 Md. at 61.
In Conover, the Court of Appeals adopted another avenue for a third party to obtain
custody. The Court held that a third party could request custody if the third party
established qualification as a de facto parent, i.e., “‘a party who claims custody or visitation
rights based upon the party’s relationship, in fact, with a non-biological, non-adopted
child.’” Conover, 450 Md. at 62 (quoting Janice M. v. Margaret K., 404 Md. 661, 680–81
(2008)). To qualify as a de facto parent, a party must satisfy a four-part test showing that
the party occupied a parental role in the child’s life with the consent and encouragement of
the child’s parent(s). This test, which was “narrowly tailored to avoid infringing upon the
parental autonomy of a legal parent,” is as follows:
(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;
33
(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.
Id. at 74 (quoting In re Custody of H.S.H.-K., 533 N.W.2d 419, 421, 435–36 (Wis. 1995)).
“[T]hese factors set forth a high bar for establishing de facto parent status, which
cannot be achieved without knowing participation by the biological parent.” Id. The de
facto parenthood doctrine is not inconsistent with a parent’s right to direct the care and
custody of the parent’s child because “a legal parent does not have a right to voluntarily
cultivate their child’s parental-type relationship with a third party and then seek to
extinguish it.” Id. at 75. When a legal parent permits a person to develop a parent-like
relationship with a child, “the legal parent’s rights to unilaterally sever that relationship are
necessarily reduced.” Id. (quoting Marquez v. Caudill, 656 S.E.2d 737, 744 (S.C. 2008)).
Accord Kpetigo, 238 Md. App. at 573 (If a parent has made “a conscious parenting decision
to foster a parent-caliber relationship between a third party and [the] child,” then the
“parent’s consent to a prior and intentional parental relationship counterbalances (or
supersedes) [their] otherwise preemptive right to determine whether and to what extent
another adult is involved in [the] child’s life.”).
If a third party establishes a relationship of de facto parenthood, that person is
deemed to have status equal to a biological or adoptive parent in custody determinations.
Basciano, slip op. at 33; David A. v. Karen S., 242 Md. App. 1, 27–28, cert. denied, 466
34
Md. 219 (2019). A court then analyzes the best interests of the child to determine custody.
Conover, 450 Md. at 85.
With this general background, we turn to the analysis in this case.
B.
Analysis
The custody analysis in this case requires multiple steps. First, we must determine
the effect of the 2014 custody order to Grandmother. We then assess whether Mother made
a sufficient showing that this custody order should be revised. If Mother met that showing,
she then had to show that, despite being found guilty of murdering Father, good cause
existed under FL § 9-101.2 to permit the court to award custody of Child to her. If she met
that showing, there would be a presumption that it was in Child’s best interest to be in
Mother’s custody, unless Grandmother showed that Mother was unfit, there were
exceptional circumstances, or Grandmother qualified as a de facto parent. We will address
each of these steps in the analysis, in turn.
1.
Prior Order Granting Grandmother Custody
This case is unlike other third-party or grandparent custody cases because, here,
Grandmother was awarded sole legal and physical custody of Child in 2014 by court order,
pursuant to Mother’s written consent, and she has had sole custody of Child for
approximately eight years. Grandmother argues that this custody order put her “on equal
footing” with Mother in the custody dispute. We disagree.
35
The court’s order did not, by itself, terminate Mother’s parental rights or give
Grandmother status as a legal parent. As this Court explained in Green v. Green, 188 Md.
App. 661, 681 (2009):
We do not regard an order granting custody of a child to a third party, subject
to modification and with appropriate visitation privileges reserved to the
parent, as the equivalent of terminating parental rights. . . . It does not deny
the parent the right to visit, communicate with, or ever regain custody.
(quoting Shurupoff v. Vockroth, 372 Md. 639, 656–57 (2003)).
Parents should not be discouraged from seeking help when they are having trouble
meeting their parental responsibilities. Indeed, “[f]or the sake of children, society should
encourage parents who are experiencing difficulties raising them to take advantage of an
available ‘safety net,’ such as a grandparent who is willing to accept temporary custody of
a child.” In re Guardianship of L.L., 745 N.E.2d 222, 233 (Ind. Ct. App.), trans. denied,
753 N.E.2d 17 (Ind. 2001). As the Supreme Court of South Carolina noted in Moore v.
Moore, 386 S.E.2d 456, 459 (S.C. 1989):
If a party relinquishes custody in good faith because of some temporary
inability to provide for the child, such parent should be able to regain custody
upon a showing that the condition which required relinquishment has been
resolved. Child custody should not be subject to change because of adverse
possession.
Nevertheless, “custody and visitation orders entered by the court are intended to
carry some amount of finality.” Barrett, 186 Md. App. at 18 (citing McCready v.
McCready, 323 Md. 476, 481–82 (1991)). Thus, when Mother was released from prison,
to regain custody of Child, she was required to petition the court for custody of Child and
show a material change of circumstances. See Burak v. Burak, 455 Md. 564, 649–50 (2017)
36
(After a trial court grants custody to a third party, “a parent is not foreclosed from seeking
to regain custody of his or her child in the future upon a showing of changed
circumstances.”); In re Rashawn H., 402 Md. 477, 496 (2007) (Custody orders are subject
to judicial reconsideration “upon a showing of changed circumstances.”).
2.
Material Change in Circumstances
When presented with a request to change custody or visitation, the trial court must
engage in a two-step process:
First, the circuit court must assess whether there has been a “material” change
in circumstance. See Wagner v. Wagner, 109 Md. App. 1, 28 (1996). If a
finding is made that there has been such a material change, the court then
proceeds to consider the best interests of the child as if the proceeding were
one for original custody. See id.; Braun v. Headley, 131 Md. App. 588, 610
(2000).
McMahon v. Piazze, 162 Md. App. 588, 594 (2005). A change is material if it affects the
welfare of the child. Id. Accord Wagner, 109 Md. App. at 28 (“In [the custody
modification] context, the term ‘material’ relates to a change that may affect the welfare of
a child.”). Evidence bearing upon materiality necessarily relates to the best interests of the
children. Gillespie v. Gillespie, 206 Md. App. 146, 171 (2012).
Here, the trial court found that Mother met her burden of showing a material change
of circumstances in several ways. First, her release from incarceration was a change
because, at that point, she could care for Child. Second, her efforts to establish a stable
environment for Child, including her acquiring a home and seeking stable, full-time
employment, was a change in circumstances from her residence in prison when the initial
37
custody order was granted. Third, her desire as a fit parent to modify the custody and
visitation arrangement with Grandmother was a material change in circumstances.
Grandmother does not directly challenge these findings. Instead, she argues that, in
the posture of a custody modification proceeding, the court could consider only evidence
that has occurred since the last custody order.
As Grandmother notes, reconsideration of custody orders generally should focus on
“changes in circumstances which have occurred subsequent to the last court hearing.”
Hardisty v. Salerno, 255 Md. 436, 439 (1969). Evidence of past history, however, may be
relevant to a party’s present fitness for custody. Raible v. Raible, 242 Md. 586, 594–95
(1966).
Here, the changes in circumstance found by the circuit court did post-date the last
custody determination. When custody was awarded to Grandmother in 2014, Mother was
incarcerated awaiting trial for Father’s murder. Her release from prison, coupled with her
efforts to create a stable environment in which she could parent Child, and her decision
that Child’s best interests were now served by being in her custody, plainly satisfied her
threshold burden of demonstrating a material change of circumstances affecting Child’s
welfare. See Barrett, 186 Md. App. at 19 (holding, in the context of a motion to modify
visitation between a child and their grandparents filed by the child’s mother, that “the desire
of a fit parent to modify visitation with a third party, [absent] exceptional circumstances,
presents a material change in circumstances”). The court did not err in finding a material
change in circumstances.
38
With respect to Grandmother’s argument that the circuit court erred in permitting
evidence regarding facts preceding the initial award of custody to Grandmother, the
evidence regarding Mother’s relationship with Father and the circumstances of Father’s
death was admissible to evaluate whether it was in Child’s best interest for Mother to have
custody, and as will be discussed, infra, whether Mother satisfied the good cause exception
under FL § 9-101.2(a). The circuit court did not err or abuse its discretion in admitting this
evidence or in finding a material change in circumstances.
3.
FL § 9-101.2
After finding a material change in circumstances, the court addressed FL § 9-101.2,
which provides, in relevant part, as follows:
(a) Except as provided in subsection (b) of this section, unless good cause for
the award of custody or visitation is shown by clear and convincing evidence,
a court may not award custody of a child or visitation with a child:
(1) to a parent who has been found by a court of this State to be guilty of first
degree or second degree murder of the other parent of the child . . .;
* * *
(b) If it is in the best interest of the child, the court may approve a supervised
visitation arrangement that assures the safety and the physiological,
psychological, and emotional well-being of the child.
FL § 9-101.2(a)–(b). Here, as indicated, Mother pleaded guilty, by means of an Alford
plea, to a charge of second-degree murder, and therefore, the court could award custody of
Child to Mother only if it was satisfied by clear and convincing evidence that there was
good cause to do so. The circuit court found that Mother had “demonstrated by clear and
39
convincing evidence that good cause exists for the Court to set aside the statutory
prohibition on granting her custody and/or access.”
Grandmother contends that the circuit court erred in finding good cause, asserting
that the court erred by not addressing the “guideposts” set forth in FL § 9-101.2(b)
pertaining to an award of supervised visitation. She argues that the court failed to assure
the physical safety or “physiological, psychological, and emotional well-being” of Child.
Mother contends that the court did not commit clear error in its application of FL §
9-101.2. Instead, she argues that the court properly applied the statute and found good
cause. We agree.
As the parties and the circuit court recognized, the “good cause” requirement in FL
§ 9-101.2 is not defined in the statute, and the Maryland appellate courts have not
previously addressed the issue. The General Assembly enacted FL § 9-101.2 in 2006. See
2006 Md. Laws ch. 112. The statute is based on “Lizzie’s Law,” a Massachusetts statute
enacted in 1997 in response to public outcry after an incarcerated father, who was convicted
of the first degree murder of his daughter’s mother in her presence, sought to compel the
maternal grandparents to bring the child to visit him. See Dep’t of Legislative Services,
Fiscal and Policy Note, S.B. 76 (2006), at 2; See also Jennifer E. Sims, “Lizzie’s Law”:
Must We Choose Between the Rights of the Parent and Protecting the Child?, 25 New Eng.
J. on Crim. & Civ. Confinement 245, 245–46 (1999) (describing the legislative history of
Lizzie’s Law).11 As the circuit court noted, however, the Massachusetts law, which permits
11
Lizzie’s Law, Mass. Gen. Laws ch. 209, § 37, provides, as follows:
40
visitation with consent, does not aid in the construction of the “good cause” exception
under the Maryland statute.
In other circumstances where the phrase “good cause” is not defined in a statute, the
Court of Appeals has concluded that the “[p]hrase good cause depends upon [the]
circumstances of [the] individual case,” and a finding of its existence is vested in the
discretion of the “court to which [the] decision is committed.” State v. Toney, 315 Md.
122, 132 (1989) (quoting Black’s Law Dictionary 623 (5th ed. 1979)). It is “a relative and
highly abstract term,” and the meaning of “good cause” is determined by the text of the
statute, the “context of [the] action,” and the “procedures involved in [the] type of case
presented.” In re Robert G., 296 Md. 175, 179 (1983) (quoting Black’s Law Dictionary
623 (5th ed. 1979)).
When “good cause” is used as an undefined term in a statute, it is a “flexible term”
that is “not amenable to general rules or rigid formulas. Instead, its meaning must be
deduced from the facts of each case in a manner that is consistent with the [statute’s]
fundamental purpose.” Meek v. Linton, 245 Md. App. 689, 721 (2020) (quoting Trexler v.
Unemployment Compensation Board of Review, 365 A.2d 1341, 1344 (Pa. Commw. Ct.
No court shall make an order providing visitation rights to a parent who has
been convicted of murder in the first degree of the other parent of the child
who is the subject of the order, unless such child is of suitable age to signify
his assent and assents to such order; provided, further, that until such order
is issued, no person shall visit, with the child present, a parent who has been
convicted of murder in the first degree of the other parent of the child without
the consent of the child’s custodian or legal guardian.
41
1976)) (cleaned up). In Meek, 245 Md. App. at 723, this Court held that the phrase “good
cause” under Md. Code Ann., Est. & Trusts Art. § 13-707(c)(1) (2017 Repl. Vol.), which
provides that a court can appoint a person with lower priority as a guardian based on a
finding of good cause, meant a substantial reason to find that the person with lower priority
was a better choice to act in the best interest of the ward.
Similarly, in a child custody case, where the primary concern in child custody cases
is the best interests of the child, we hold that good cause to grant custody to a parent who
has been found guilty of murdering the child’s other parent means a substantial reason to
find that it is in the child’s best interests to return to the parent’s custody. That definition
is flexible, and in making its determination, the court should consider the facts and
circumstances of each case. We review the court’s decision in this regard for an abuse of
discretion.
Here, the circuit court made clear that, pursuant to Maryland law, the best interests
of Child were paramount to its decision. The court stated that, in the context of FL § 9-
101.2, the court could protect the welfare and best interests of Child by ensuring that he
was safe from future acts of domestic violence. In this regard, Mother had no prior
convictions, there was no evidence that Mother had committed any acts of violence or
aggression since the murder, and Mother had taken concrete steps to “rebuild her life,”
including obtaining stable housing and employment, engaging consistently in therapy, and
complying with the terms of her probation.
The court found that Mother’s “motivation for committing the crime clearly
stemmed from years of physical and sexual abuse at the hands of [Father].” It credited
42
Mother’s testimony that, on the night of the murder, Father violently attacked her and
attempted to rape her. The court found that the killing was provoked by his attack and
lengthy history of domestic violence.12
The court noted that Mother genuinely wanted to be with her son, that she had
maintained a loving relationship with Child, and Child wanted to have a relationship with
Mother. This was not a case, unlike the case that precipitated Lizzie’s Law, where the
court was compelling Child to have a relationship with Mother.
Based on all the evidence, the circuit court found that Mother did not pose a future
danger to Child, and she had shown good cause to permit the court to consider an award of
custody to her. We perceive no abuse of discretion in this regard.13
4.
Third-Party Custody Disputes
Once the circuit court found that Mother established a material change in
circumstances and showed good cause to permit a grant of custody pursuant to FL § 9-
101.2, the court then addressed the bests interests of the child. Because this was a custody
dispute between Mother (i.e., a legal parent) and Grandmother (i.e., a third party), there
12
The court rejected Grandmother’s testimony and the testimony of Mr. Glover that
Mother had planned Father’s murder and solicited assistance. The court found that their
testimony on that subject lacked veracity and declined to consider it, noting that neither
Mr. Glover nor Grandmother ever reported the alleged conversations to the police or
prosecution before or after Father’s murder and supported Mother during her criminal case.
13
After finding that Mother had shown good cause pursuant to FL § 9-101.2, the
court stated that its finding of good cause was a “threshold step towards obtaining custody,”
and that after finding good cause, it would determine whether it was in the best interests of
Child to award custody to Mother.
43
was a constitutional presumption that Mother’s decision regarding custody was in Child’s
best interest. See Barrett, 186 Md. App. at 19 (The court generally presumes that a parent’s
decision regarding visitation and custody by a third party is in the child’s best interest.).
To rebut that presumption, Grandmother had to show Mother’s parental unfitness,
exceptional circumstances, or Grandmother’s status as a de facto parent. See E.N., 474
Md. at 393. Only if Grandmother made that showing and rebutted the constitutional
presumption in favor of Mother would the court be required to determine whether awarding
custody to Grandmother would be in Child’s best interest. Id.
Grandmother does not challenge the court’s finding that Mother was a fit parent.
She argues, however, that the circuit court erred in finding that: (1) she was not a de facto
parent; and (2) she failed to prove extraordinary circumstances. As explained below, we
agree that the circuit court erred in finding that Grandmother failed to meet her burden to
show that she was a de facto parent.14
“The term ‘de facto parent’ means ‘parent in fact’ and is used to describe a party,
other than a child’s legal parent, i.e., biological or adoptive parent, who claims custody or
visitation rights based upon the party’s relationship with a non-biological, non-adopted
child.” E.N., 474 Md. at 351. As indicated, a person claiming de facto parent status must
prove the following:
(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;
14
Based on this conclusion, it is not necessary to address exceptional circumstances.
44
(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.
Conover, 450 Md. at 74 (quoting H.S.H.-K., 533 N.W.2d at 421, 435–36).15
Here, the circuit court found that Grandmother failed to satisfy the first prong of the
test, noting that this prong was “critical to the de facto parent doctrine because it ensures a
biological parent continues to direct the care and custody of their child pursuant to their
fundamental right under the U.S. Constitution, while also preventing mere caretakers from
becoming de facto parents.” The court found that Grandmother failed to prove that Mother
consented to the formation of a parent-like relationship because, although Mother
consented to Grandmother having legal and physical custody of Child while Mother was
incarcerated, Mother testified that this consent was for Grandmother to have temporary
custody during Mother’s incarceration, not consent for a permanent, parent-like
relationship. The court found that Mother’s attempt to regain custody of Child immediately
15
Mother contends that Grandmother failed to raise any contention in the circuit
court that she was Child’s de facto parent, and she did not argue below that she had satisfied
the four-part Conover test. Mother is correct that Grandmother did not directly raise this
issue in her pleadings or argue it in the circuit court. Nevertheless, Mother raised the issue,
and Grandmother’s counsel argued that Grandmother was a “parental figure” in Child’s
life and that Mother consented “knowingly and voluntarily to [Grandmother] having sole
legal and sole physical custody of [Child].” Although we ordinarily will not decide an
issue unless it was raised in and decided by the circuit court, see Md. Rule 8-131(a), the
trial court decided the issue of de facto parent status, and therefore, we will consider it on
appeal.
45
following her release from prison showed that Mother intended Grandmother’s custody to
be temporary. Thus, the court concluded that Grandmother was not a de facto parent.
We agree with the circuit court that the first prong of the Conover test is critical to
the de facto parent analysis. See Conover, 450 Md. at 75 (The first prong is “critical
because it makes the biological or adoptive parent a participant in the creation of the
psychological parent’s relationship with the child.”) (quoting Marquez, 656 S.E.2d at 744).
We disagree, however, with the circuit court’s conclusion that Grandmother did not satisfy
this prong of the Conover test.
Although a parent has a right to direct the care and custody of their children, this
first prong of the analysis “recognizes that when a legal parent invites a third party into a
child’s life, and that invitation alters a child’s life by essentially providing him with another
parent, the legal parent’s rights to unilaterally sever that relationship are necessarily
reduced.” Middleton v. Johnson, 633 S.E.2d 162, 169 (S.C. Ct. App. 2006). A legal parent
has control over whether to invite someone into the private sphere between parent and
child, but “[w]here a legal parent encourages a parent-like relationship between a child and
a third party, ‘the right of the legal parent [does] not extend to erasing a relationship
between [the third party] and her child which [the legal parent] voluntarily created and
actively fostered.’” Id. (quoting V.C. v. M.J.B., 748 A.2d 539, 552 (N.J. 2000)).
The court found that the first prong of Conover was not shown because Mother’s
consent was for temporary custody; she did not intend to consent to a de facto parent
relationship between Child and Grandmother. In addressing the court’s decision in this
regard, the analysis set forth in E.N. is instructive.
46
In that case, the issue was whether, when there are two legal parents, “a de facto
parent relationship may be created through the fostering and consent of only one legal
parent to the formation of such a relationship, without the consent of the second legal
parent.” E.N., 474 Md. at 355. The Court answered the question in the negative and held
that, when there are two legal parents, “both legal parents must consent to and foster a third
party’s formation and establishment of a parent-like relationship with a child under the first
factor of the [Conover] test.” Id. at 354. The Court ultimately held that T.R., the girlfriend
of D.D., the biological father of two children, was not a de facto parent because there was
no evidence that the children’s biological mother consented to or fostered the formation of
a parent-like relationship between the children and T.R. Id. at 355.
Relevant to the present case is the Court’s analysis of D.D.’s consent to a parent-
like relationship. In 2013, after E.N. and D.D. separated, D.D. and T.R. began a
relationship and moved in together. Id. at 356. In 2015, when the two children were eight
and ten, they moved in with D.D. and T.R. Id. at 356–57. In 2017, D.D. was arrested, and
he subsequently was convicted of drug and firearm offenses, with a release date in August
2024. Id. at 357. The children continued to live with T.R. for several months until E.N.
asked for her children to be returned to her. Id. T.R. refused, and in 2018, she filed a
complaint against E.N., seeking sole custody of the children. Id. at 357–58. T.R. included
a letter from D.D., stating that he granted T.R. full custody of the children “for legal
guardianship while [he was] incarcerated.” Id. at 358.
In assessing whether D.D. consented to and fostered the formation of a parent-like
relationship between T.R. and the children, the Court concluded that he did. Id. at 404–05.
47
Although D.D. did not expressly seek de facto parent status for T.R., seeking only for T.R.
to have custody while he was incarcerated, the Court concluded that his “conduct met the
requirement that he consent to and foster her formation and establishment of a parent-like
relationship with the children.” Id. at 404. Thus, the Court held that, if D.D. was the only
legal parent of the children, the first factor of the Conover test would be satisfied. Id. at
405. It explained that, even if a legal parent opposes the grant of de facto parenthood status
for a third party, a court may find de facto parenthood status if all of the factors of the test
are satisfied. Id.
Here, the evidence showed that Mother took Child to Grandmother before turning
herself in to the police. She signed a form consenting to Grandmother having sole legal
and physical custody while Mother was facing first-degree murder charges and an
indefinite, and likely lengthy, sentence. Mother subsequently entered into an Alford plea
resulting in a sentence of ten years’ imprisonment, and she did not seek to modify custody
until years later, after she was released from prison.16 During an eight-year period, from
when Child was 21 months old until he was 10 years old, Grandmother took care of Child’s
16
These facts distinguish this case from our recent decision in Basciano v. Foster,
___ Md. App. ___, No. 1978, Sept. Term, 2021, slip op. at 36 (filed Nov. 1, 2022), where
we held that grandparents had not shown that they were de facto parents. In that case, the
grandfather of a six-month-old child picked up the child after the Maryland Department of
Human Services advised that the parents had overdosed on heroin. Id. at 3. The
grandparents subsequently filed a complaint for custody, but Father objected, requesting
that he have sole legal and physical custody of the child. Id. at 4. Although Father signed
a temporary “Parenting Plan,” he continued to argue that he should have custody. Id. at 4,
11. Because, unlike in this case, there was no consent to the establishment of a parent-like
relationship, we concluded that the first prong of the Conover test was not satisfied. Id. at
36.
48
physical, educational, and psychological needs. Ms. Jackson testified that, for close to
eight years, Grandmother fulfilled the role of Child’s mother. Under these circumstances,
Mother, Child’s only legal parent, consented to a parent-like relationship between
Grandmother and Child, even if she subsequently stated that she did not intend to consent
to Grandmother having de facto parent status. The first factor of the Conover test was
satisfied. The circuit court erred in finding to the contrary.17
In addition to consent to a parent-like relationship, there are three other factors that
a court must consider in determining whether a third party has shown de facto parent status.
Here, the court did not consider the other three factors in the four-factor test.
There is no challenge to two of the other factors. The second factor, i.e., that
Grandmother and Child lived together in the same household, is not disputed and is clearly
established by the evidence. Mother similarly does not dispute that the evidence showed
that Grandmother was in a parental role for a sufficient time to establish a bonded parental-
type relationship with Child.
17
This conclusion is based on the unique facts of this case. It is not the case that,
anytime a parent consents to a family member having temporary custody of their child, the
first prong of the Conover test will be satisfied; that test requires consent for a parent-child
relationship. Moreover, the fourth factor requires that the third party be in the parental role
for a sufficient length of time to have established a bonded, parental-type relationship.
Thus, in other circumstances where a parent leaves a child with a third party for short-term
temporary care due to the need for help for some reason, such as an addiction problem, to
accommodate work travel, or other situations, it is unlikely that a court would find de facto
parent status. As indicated, parents should be encouraged to get help when they need it for
their children. The Conover test establishes “a high bar for establishing de facto parent
status.” 450 Md. at 74. Merely seeking short-term, temporary care for a child does not,
by itself, satisfy the strict test to establish de facto parent status.
49
Mother does argue, however, that Grandmother failed to satisfy the third factor of
Conover, i.e., that Grandmother assumed the obligations of parenting Child without
expectation of financial compensation. She argues that Grandmother failed to demonstrate
that she contributed toward Child’s support without expectation of financial compensation,
noting that Grandmother inquired from Mother and her attorney how she could obtain
money from life insurance policies and military benefits to care for Child.
Grandmother notes in her reply brief that the court failed to analyze this factor. She
argues, however, that had it done so, the court would have found that she was a de facto
parent.
The American Law Institute has discussed the de facto parenthood requirement that
a person perform caretaking functions “for reasons primarily other than financial
compensation.” Principles of the Law of Family Dissolution: Analysis and
Recommendations § 2:03(c)(ii) (Am. L. Inst. 2002) (“ALI Principles”). Comment (c)
explains that the
law grants parents responsibility for their children based, in part, on the
assumption that they are motivated by love and loyalty, and thus are likely
to act in the child’s best interests. The same motivations cannot be assumed
on the part of adults who have provided caretaking functions primarily for
financial reasons.
ALI Principles § 2:03 cmt. c. Thus, the definition of de facto parent is intended to exclude
“babysitters and other paid caretakers,” as well as “foster parents . . . because of the
financial compensation involved and because inclusion of foster parents would undermine
the integrity of a state-run system designed to provide temporary, rather than indefinite,
care for children.” Id. Significantly, the comment states that the
50
requirement that an individual have performed caretaking functions
primarily for nonfinancial reasons does not rule out caretakers who may
qualify for financial assistance to care for the child but whose caretaking role
was not motivated primarily by that assistance. Thus, for example, family
members who take children into their homes primarily out of family affinity
may be de facto parents even if, as a result of taking a child into their home,
they are able to qualify for welfare benefits, foster-care payments, or other
forms of financial assistance.
Id.
In In re Custody of A.F.J., 260 P.3d 889, 890–91 (Wash. Ct. App. 2011), the
biological mother’s partner took over caring for the mother’s child conceived with an
unknown father when the mother was using drugs. The State required the partner to
become a licensed foster parent to continue caring for the child, which she did, and as a
result, she began receiving financial compensation for the child. Id. at 891–92. The partner
subsequently moved for a finding that she was the child’s de facto parent. Id. at 892. After
the trial court determined that the partner was a de facto parent, the mother appealed,
arguing that a foster parent can never be afforded de facto parent status, and the partner’s
receipt of financial compensation to care for the child precluded her satisfaction of the de
facto test. Id. at 892–93. Relying on the ALI Principles, the Court of Appeals of
Washington rejected that argument, concluding that the partner took on care for the child
out of family affinity, not because she would be compensated. Id. at 898–99.
Similarly, here, the evidence indicates that Grandmother took custody of Child out
of family affinity, not for financial benefit. Her subsequent receipt of governmental
benefits to which Child is entitled due to the death of Father does not change the analysis,
particularly because Grandmother was Child’s court-appointed guardian of property.
51
Given this, we hold that no reasonable factfinder could find, on these facts, that
Grandmother took custody of Child for financial reasons. Accordingly, because each
prong of the Conover test was satisfied, the court erred in finding that Grandmother had
failed to show that she was a de facto parent.
On remand, the court shall engage in a new analysis of Child’s best interest.
Although the court did engage in a best-interests analysis, it did so on the premise that the
analysis was one involving a legal parent and a third party. Because Grandmother has
established that she is a de facto parent, however, she has the same status as Mother. See
David A., 242 Md. App. at 27 (once de facto parent status is shown, the de facto parent is
“distinct from other third parties” and effectively is elevated to equal footing with legal
parents for custody determination) (quoting Conover, 450 Md. at 85). The court must
engage in a new best-interests analysis with Grandmother having the status of a legal
parent, not that of a third party.
II.
Payment for Cost of Reunification Therapy and Visitation Supervision
Grandmother contends that, based on its finding that she was a mere third party, the
circuit court lacked authority to order her to provide monetary support for Child, including
splitting the cost of reunification therapy and the cost of supervised visitation exchanges.
Mother disagrees, arguing that the court properly exercised its discretion in ordering
Grandmother to pay the expenses during the period of transition from Grandmother’s sole
physical custody to Mother’s sole physical custody. She further argues that, because
Grandmother remained the court-appointed guardian of Child’s property and the recipient
52
of approximately $4,000 per month in benefits on his behalf, Grandmother had an
obligation to pay expenses incurred in Child’s best interests during that time.
Because we are remanding this case for further proceedings, we will not address this
issue. On remand, based on its decision, the court shall revisit this issue and explain its
reasons for its assessment of costs.
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
AFFIRMED IN PART AND VACATED IN
PART. CASE REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. COSTS TO BE
SPLIT 50/50 BY THE PARTIES.
53