Davis v. Guo

1

SONIA DAVIS v. SONG GUO, ET AL.,

No. 2100-2022

Court of Special Appeals of Maryland

August 3, 2023

UNREPORTED ^[*]

IN THE APPELLATE COURT OF MARYLAND ^[*]

Circuit Court for Montgomery County Case No. 172881FL

Wells C.J., Beachley, McDonald, Robert N. (Senior Judge, Specially Assigned), JJ.

OPINION

McDonald, J.

This child custody case presented the Circuit Court for Montgomery County with the question of who should have custody of a young child ("Child").^[1] Child's parents ("Parents" or, individually, "Mother" and "Father") admitted that neither was currently capable of caring for Child. As relevant to this appeal, the court's choice was between Child's maternal grandparents ("Grandparents"), who petitioned for custody, and her paternal aunt ("Aunt"), who intervened in that case. The court was thus required to apply the Maryland law on "third-party custody" - the award of custody to someone other than a child's parents. The court also was called upon to consider the possibility of "de facto parenthood" - an award of parenthood status to someone who is not a child's biological or adoptive parent but who, if four criteria are satisfied, is deemed to effectively be the child's parent.

Child was born in mid-September 2020. The proceedings in this case^[2] began in late December 2020, when Child was less than four months old and living with her Parents in Grandparents' household. During that month, Grandparents filed an emergency petition in the Circuit Court for custody over Child on the basis of allegations that Parents were incapable of caring for her. At that time, Mother agreed; she stated in writing that she wanted Grandparents to have custody of Child. After Grandparents' petition was dismissed on procedural grounds in June 2021 for failing to include Father, Grandparents filed the amended petition for custody that resulted in this appeal. At that time, both Mother and Father stated in writing that they wished to share their "custody/guardianship rights" with Grandparents. Child and Parents continued to live in Grandparents' household.

In early 2022, the Circuit Court granted temporary physical and legal custody to Grandparents. Meanwhile, Parents changed their minds as to who should have custody of Child and stated that Father's older half-sister - Aunt, a resident of Colorado - should have custody. Aunt then successfully moved to intervene in Grandparents' custody action.

The Circuit Court tried the case on the merits in early November 2022. Grandparents were represented by counsel, as was Aunt. Mother and Father each appeared pro se and both took the position at that time that Aunt should have custody of Child and that Grandparents should not. At the conclusion of the evidence, the Circuit Court took the matter under advisement.

In early January 2023, the Circuit Court rendered a detailed ruling from the bench. The court first determined that neither Grandparents nor Aunt satisfied all of the criteria required to be a de facto parent of Child. Turning to the law governing third-party custody, the court further determined that Mother and Father were unfit to fulfill their parental responsibilities and that it was in the best interests of Child to award primary physical and legal custody to Grandparents as well as custody to Aunt on weekends. The court also granted Mother and Father weekly video or telephone access to Child and visitation with Child under supervision of Aunt.

Aunt then appealed the court's award of custody to Grandparents. Neither Mother nor Father noted an appeal.^[3]

The questions that Aunt presents fall into three broad categories: whether Aunt is a de facto parent of Child; whether the Circuit Court violated Parents' constitutional rights by not acceding to their stated desire at trial for Aunt to have custody of Child; and whether the Circuit Court erred when it deemed Grandparents fit to have custody of Child.

As explained below, we hold as follows:

(1) The record supports the Circuit Court's determination that Aunt was not Child's de facto parent, and Aunt was not entitled to the presumption of custody applicable to a child's parents.

(2) Assuming, for purposes of argument, that Aunt had standing to assert that the Circuit Court's custody decision violated the constitutional rights of Mother and Father as parents, the award of custody to Grandparents did not violate those rights.

(3) The Circuit Court neither erred nor abused its discretion in its determination that Child's interests would be best served by granting primary custody to Grandmother and Grandfather.

We therefore affirm the judgment of the Circuit Court.

I Maryland Law on Awarding Child Custody to Third Parties

This case concerns competing claims for custody of a child by third parties. In this context, "third party" refers to an individual who is not the child's biological or adoptive parent. This Court has recently had occasion to analyze such a claim, both as asserted under longstanding Maryland law and under the latest developments in the case law. See Caldwell v. Sutton, 256 Md.App. 230 (2022); Basciano v. Foster, 256 Md. 107 (2022). To provide context to the description of the facts and proceedings in this case, we briefly describe that law.

The starting point is based on the following well-known principles: that the right 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); that, nonetheless, the parents' right is not absolute but instead must be balanced against the State's fundamental responsibility to protect the child, In re Adoption/Guardianship of Rashawn H., 402 Md. 477, 496-97 (2007); that, while a parent who is claiming custody is "asserting a fundamental constitutional right," a "third party [seeking custody over the child] is not," McDermott v. Dougherty, 385 Md. 320, 353 (2005); that "[t]he primary goal of access determinations in Maryland is to serve the best interests of the child," Conover, 450 Md. at 60; and that, to assure that the parents' constitutional rights are protected, a third party seeking custody must overcome the presumption that parental custody is in the child's best interests, see Rashawn H., 402 Md. at 495.

In light of those principles, there are essentially two approaches under which one who is not a biological or adoptive parent may seek custody. See Caldwell, 256 Md.App. at 266 (explaining the two "avenue[s] for a third party to obtain custody"). Under the first approach, long-established in the case law, the third party must defeat the presumption favoring parental custody by demonstrating that the child's parents are "unfit" or that there are "exceptional circumstances" that make their continued custody of the child detrimental to the child's best interests. If so, the third party must then establish that the child's best interests would be served by awarding custody to that third party. Caldwell, 256 Md.App. at 266. Under the second approach, adopted in recent cases, the third party must establish that the third party bears a relationship to the child equivalent to that of a biological or adoptive parent - in other words, that the third party qualifies as the child's "de facto parent." Id. We shall refer to these two approaches as the unfitness/exceptional circumstances approach and the de facto parenthood approach.

A. The Unfitness/Exceptional Circumstances Approach

The unfitness/exceptional circumstances approach has two stages. At the first stage, a third-party claimant must overcome the presumption that the child's best interests are served by parental custody. To do that, the third party must prove either that the parents are unfit to have custody of the child or that there are "exceptional circumstances" that make the parents' custody detrimental to the child's best interests. Caldwell, 256 Md.App. at 266 (citing, inter alia, Conover, 460 Md. at 61). Only then may the trial court proceed to the second stage, at which the court must consider whether granting custody to that third party serves the best interests of the child. Conover, 450 Md. at 61; see also E.N. v. T.R., 474 Md. 346, 396 (2021); Caldwell, 256 Md. at 266 (citing Basciano, 256 Md.App. at 132).

As noted above, the Circuit Court in this case concluded - and Parents agreed at the trial - that Parents are currently unfit. No party has contested that conclusion^[4] and this appeal thus involves only the Circuit Court's application of the law at the "best interests" stage. Thus, we shall focus on the law governing that stage of the unfitness/exceptional circumstances approach.

This Court has characterized the best interests standard as "an amorphous notion, varying with each individual case" and emphasized that "there is no litmus paper test that provides a quick and relatively easy answer to custody matters." Montgomery Cnty. Dep't of Soc. Servs. v. Sanders, 38 Md.App. 406, 419-20 (1978). Sanders involved the question of whether the custody of a child with his mother, as opposed to foster parents, served his best interests. In reviewing the trial court's restoration of custody to the mother, this Court listed 10 factors that it and other courts had used to "weigh[] the advantages and disadvantages of the alternative environments" proposed for the child. Id. at 420.

Additional considerations have been added to the Sanders list in subsequent years. In Taylor v. Taylor, 306 Md 290 (1986), a custody modification case in which the child's father sought to have physical custody jointly with the child's mother, the Court of Appeals, now known as the Supreme Court of Maryland, recognized the Sanders factors as...