Maryland Extends Standard For Stepparents, Grandparents and Others to Seek Custody or Visitation

On August 30, 2018, the Maryland Court of Special Appeals ruled that the status of de facto parent – sometimes called ‘psychological parent’ – which was recognized by the Court of Appeals in Conover v. Conover, 450 Md. 51 (2016), is not limited to same sex couples. A de facto parent is a non-related adult who claims custody or visitation rights based upon the party’s special relationship in fact with a non-biological, non-adopted child.

In Kpetigo v. Kpetigo, the Maryland Court of Special Appeals approved a ruling by the Circuit Court for Montgomery County, Maryland that a stepmother qualified as a de facto parent and was, therefore, permitted to have visitation rights with her stepson. De facto parent status is important, because, unlike anyone other than a biological or adoptive parent, when seeking custody or visitation of a child, a de facto parent does not have to prove that another parent is either unfit or that exceptional circumstances exist in order to overcome the presumption that it is in the best interest of a child to be in the custody of a parent or to allow the parent to decide who can visit the child.

Generally, grandparents, stepparents, and others do not stand on equal footing with biological or adoptive parents, because fit parents have a constitutional right to raise their own children. If a third party files a claim for custody or visitation, the third party must first prove that the parent is unfit or that exceptional circumstances exist before a court ever decides whether custody or visitation is in the best interest of the child. Unlike other third parties, a de facto parent stands on equal footing with a parent and does not have to overcome the presumption. Instead, the de facto parent merely has to prove that it is the child’s best interest for the de facto parent to have custody or visitation of the child.

In Conover v. Conover, the Maryland Court of Appeals recognized de facto parenthood status. The Court approved the following four-part test to establish de facto parenthood: (1) that the biological or adoptive parent consented to, and fostered, the formation and establishment of a parent-like relationship between the child and the de facto parent; (2) that the de facto parent and the child lived together in the same household; (3) that the de facto parent “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 de facto parent “has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.”

In Kpetigo v. Kpetigo, the Maryland Court of Special Appeals ruled that the trial court properly applied the four-part test established in Conover. The stepmother lived with the child from the time he was three years old until the time he was eleven. During that time, she took care of all of his needs. She bathed him, changed him, and put him to bed at night. She took the child to and from school, doctor and dental appointments, play dates, and extracurricular activities. She cooked his meals and packed his lunches, went to parent-teacher conferences, and arranged for his daycare, babysitters and camps. She helped to select his school. She also paid for the child’s camps and other things. She treated the child the same way that she treated her biological child with Mr. Kpetigo. When the child was young, he clung to his stepmother and would not go to anyone else. The child went on vacation with the stepmother’s family and referred to her family members as aunt or uncle. The Court of Special Appeals stated that once the stepmother proved that she was a de facto parent, the trial court properly found that it was in the child’s best interest to have visitation with his stepmother.

Neal J. Meiselman and Vincent M. Wills to Conduct a Seminar on October 26, 2018 for the Montgomery County, Maryland Bar Association Family Law Section

Neal J. Meiselman and Vincent M. Wills will conduct a Seminar entitled, “Determining Income for a Self-Employed Parent When Calculating Child Support” on Friday, October 26, 2018 from 9:00 a.m. to 3:30 p.m. at The Universities at Shady Grove, Building III, Room 4230, 9636 Gudelsky Drive, Rockville, MD. The program is sponsored by the Family Law Section of the Montgomery County, Maryland Bar Association.

The Seminar will focus on how to determine a parent’s income for purposes of child support when the parent is self-employed, a partner in a partnership, or a member of an S Corporation. The program will cover the law pertaining to calculating child support in cases where the combined income of the parents exceeds $180,000 per year. The program will focus on the relevant tax forms that are used to obtain information about a self-employed parent’s income.

Neal J. Meiselman is the founding Partner at Meiselman Helfant & Wills, LLC and has been a practicing attorney for almost forty years. Vincent M. Wills joined Meiselman Helfant & Wills, LLC as a Partner in August 2018. He has been a practicing attorney for over twenty-seven years.

Welcome Vince Wills!

Meiselman Helfant & Wills, LLC (formerly Meiselman & Helfant, LLC) is pleased to announce that Vincent M. Wills, Esquire has joined the firm as a partner.

The three partners at Meiselman Helfant & Wills together provide almost 85 years of experience representing families. The firm will continue to provide representation to clients in all aspects of family law including custody, child support, divorce, spousal support, distribution of marital property, transfers of retirement interests, and appellate litigation. The firm also provides mediation services to parties and attorneys in all family law matters.

Mr. Wills joins Meiselman Helfant & Wills after 22 years with Dragga, Hannon & Wills, LLP. Beginning in 1991, Mr. Wills practiced in Baltimore, Maryland for 5 years focusing in the areas of general civil litigation and family law. Since 1996, his practice has been concentrated in family law and particularly on complex litigation involving high net worth clients and issues including alimony, valuation of privately held businesses, and appellate matters.

Vince is a member of the American Academy of Matrimonial Lawyers and former chair of the Family and Juvenile Law Section of the Maryland State Bar Association. In 2017, he was named as the Family Law Practitioner of the Year by the Family Law Section of the Montgomery County Bar Association. He is a frequent lecturer for the State Bar Association and Montgomery County Bar Association. In February of 2018, he developed and presented a program about determining child support in high income cases to Judges and Magistrates at the Judicial College of Maryland. He has also co-authored numerous articles and training materials on family law. Before becoming a lawyer, Vince served on active duty in the United States Air Force, achieving the rank of Captain. He has been married for 36 years and has two adult children.

Neal J. Meiselman, Esquire is a well known and respected family law lawyer and mediator who has been practicing law in Maryland since 1978. His practice has also been focused on all aspects of family law, including mediation, complex litigation, and appellate matters. Nogah B. Helfant, Esquire has concentrated her practice in the area of family law in Maryland since 2000. Ms. Helfant has extensive litigation, mediation, and negotiation experience in contested divorce cases, protective orders, high conflict custody cases, modification, and post-divorce enforcement proceedings.

Living together

In 2006, the Maryland Court of Appeals considered the case of Ricketts, a couple who lived together in the same house, but in separate bedrooms and without cohabitation. The husband filed a complaint for limited divorce based on
constructive desertion, and for custody and visitation.The trial court dismissed the complaint because the parties were not living “separate and apart.” The husband appealed.

The Court of Appeals had to determine whether either or both causes of action — limited divorce and custody — could be maintained while the parties were “living under the same roof.” The Court decided that both causes of action could be
maintained, each for different reasons.

While acknowledging that “both actual desertion and constructive desertion generally require that one of the spouses physically leave the marital home,” the Court of Appeals revived a long-dormant framework for constructive desertion
based on refusal of sexual relations when the parties continue to reside together. To the chagrin of many couples, merely sleeping in separate bedrooms and ceasing to having marital relations will not suffice.

First, there must be “permanent refusal [by one spouse] … to have sexual intercourse with the other spouse, from no consideration of health or other good reason.”

Second, accompanying the permanent refusal of sexual intercourse, unless the nonrefusing spouse makes an “effort toward reconciliation, it is presumed that both spouses prefer to live under such circumstances” and the divorce will not be
granted.

As often occurs, what was left unspoken piques curiosity. The Court of Appeals noted that the only issue before it was the sufficiency of the pleadings. Mr. Ricketts sought a limited divorce based on constructive desertion, a fault ground, so the Court addressed the sufficiency of that claim. The Court did not address whether and under what circumstances parties residing in the same house might be able to obtain a limited or absolute divorce based on no-fault grounds.This possibility would be more in keeping with contemporary enthusiasm for and public policy favoring mediation, and other no-fault marital dissolution options.

Maryland law recognizes 12-month separation as grounds for an absolute divorce, if: (i) the parties have lived separate and apart without cohabitation for 12 months without interruption before the filing of the application for divorce; and (ii) there is no reasonable expectation of reconciliation. Maryland law has a similar provision for a limited divorce based on voluntary separation for less than 12 months.

Historically, the term “separate and apart” has meant the opposite of physically “living under the same roof.” In a 1964 case, where the parties “intermittently lived in the same house” during the statutory period, the Court of Appeals held “they were not living ‘separate and apart, without any cohabitation'” even though they slept in separate bedrooms and did not engage in sexual relations with one another.

Similarly, in 1972, the Court of Special Appeals (Maryland’s intermediate appeals court) held that “the separation contemplated by the statute does not occur until the parties cease living in the same house even though they may have ceased sexual relations prior to that time.”

However, in what might become a useful footnote in the 2006 case, the Court of Appeals explained: “By the phrase ‘live under the same roof,’ we mean that the parties are technically living together but are not cohabitating, sharing the same bedroom or engaging in marital relations.” The footnote goes on to equate “live under the same roof” with “cohabitation” as that term was re-defined in a 1996 case, Gordon v. Gordon.

In the Gordon case, in the course of interpreting a separation agreement, the Court of Appeals “formulated a [non exhaustive] list of factors to consider in determining whether a relationship constitutes cohabitation.” The factors are: 1. establishment of a common residence; 2. long-term intimate or romantic involvement; 3. shared assets or common bank accounts; 4. joint contribution to household expenses; and 5. recognition of the relationship by the community.

In theory, then, maybe it is possible to live “separate and apart” while only “technically living together.” Whether a limited or absolute divorce on no-fault grounds would be granted by a Maryland court under these circumstances
remains to be seen.

Meanwhile, back in Ricketts case, the Court of Appeals held that “jurisdiction to determine the custody and support of children and establish the visitation rights of the noncustodial parent … exists without regard to whether one of the parties has been granted, or is entitled to, a limited divorce.”

However, an award of custody is not required. The Ricketts opinion cites earlier cases, which held that “custody should be awarded and jurisdiction should be retained for the purpose of awarding support and maintenance if the circumstances should warrant such action.”