McMorrow v. King

Katelyn McMorrow v. Vernon King, III, No. 875, September Term, 2024. Opinion by
Hotten, J.

CIVIL PROCEDURE – RES JUDICATA – EFFECT OF DEFENDANT’S POST-
JUDGMENT OBJECTION TO ADOPTION

Where a plaintiff brings a constitutional claim attacking a defendant’s status as a de facto
parent, that claim is barred by res judicata when the plaintiff has previously litigated the
constitutionality of the status to a final judgment on the merits. The fact that the defendant
exercises his de facto parent rights in a different way following the judgment does not open
his de facto parent status to another constitutional attack by the same plaintiff.

FAMILY LAW – CHILD SUPPORT – DE FACTO PARENTHOOD –
OBLIGATION OF DE FACTO PARENT TO SUPPORT CHILD

Where a de facto parent takes affirmative steps to obtain parental rights equal to those of a
biological parent, and actually asserts those rights against the biological parent, the de facto
parent must share in the statutory obligation to support the child.
Circuit Court for Washington County
Case No.: C-21-FM-23-000291
REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 875

September Term, 2024

______________________________________

KATELYN MCMORROW

v.

VERNON KING, III
______________________________________

Nazarian,
Leahy,
Hotten, Michele D.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Hotten, J.
______________________________________

Filed: March 5, 2025

*Zic, Terrence, J., did not participate in the
Pursuant to the Maryland Uniform Electronic Legal
Court’s decision to designate this opinion for
Materials Act (§§ 10-1601 et seq. of the State publication pursuant to Md. Rule 8-605.1.
Government Article) this document is authentic.

2025.03.05
'00'05- 13:27:10
Gregory Hilton, Clerk
This appeal involves the grant of a motion to dismiss, as well as custody and child

support rulings by the Circuit Court for Washington County. Appellee Vernon King, III

(“Grandfather”), and his now-deceased wife Jeanette King sued Appellant Katelyn

McMorrow (“Mother”) in the Circuit Court for Montgomery County in 2018 for custody

of, or in the alternative, for visitation with Mother’s minor child, asserting de facto parent

status. The Circuit Court for Montgomery County found that Grandfather and Ms. King

were de facto parents of the minor child and awarded them liberal visitation. Mother did

not seek appellate review of that ruling.

In 2022, Mother sued Grandfather and Ms. King in the Circuit Court for Washington

County to terminate their de facto parent rights. The Circuit Court for Washington County

dismissed this complaint. Mother did not seek appellate review of that ruling. Then, in

2023, Mother filed another complaint against Grandfather in the Circuit Court for

Washington County, this time seeking to terminate Grandfather’s de facto parent rights, or

alternatively, for modification of custody and for child support. The court dismissed

Mother’s request to terminate de facto parent rights on res judicata grounds, ordered a slight

modification of custody, and denied Mother’s request for child support.

On appeal, Mother presents three questions for our review:

1. Was Mother’s request to terminate de facto parent rights barred by the doctrine
of res judicata?
2. Is the continuing award of de facto parent rights to Grandfather a violation of
Mother’s constitutional rights as the biological parent of the minor child?
3. Did the Court err in failing to order Grandfather as de facto parent to pay Mother
child support?

In a cross-appeal, Grandfather presents a fourth question for our review:
4. Did the trial court commit error by failing to perform the required statutory
analysis under Md. Code Ann., FL § 12-103 when denying Grandfather’s
request for attorney’s fees?

For the reasons outlined below, we conclude that the circuit court correctly

dismissed Mother’s constitutional claims on res judicata grounds and properly denied

Grandfather’s request for attorney’s fees, despite not assessing either party’s financial

status or needs. However, we also conclude that the circuit court erred in denying Mother’s

request for child support. Therefore, we shall affirm, in part, and reverse, in part, the

judgment of the circuit court and remand for further proceedings consistent with this

opinion.

BACKGROUND

Mother met Troy King (“Father”) in 2010 when they were nineteen and eighteen

years old, respectively. At the time, Mother was enrolled at Salisbury University, and

Father was studying at the University of Tennessee. An intimate relationship ensued during

which Mother became pregnant with the minor child. That summer, before Mother and

Father returned to their respective colleges, Father’s parents held a meeting at their home

to discuss where and with whom the minor child would live while Mother and Father

attended college. In attendance at the meeting were Mother and Father, the minor child’s

paternal grandparents, Jeanette King and Grandfather (collectively “the paternal

grandparents”), the minor child’s maternal grandmother, and Mother’s stepfather. At this

meeting it was decided that the paternal grandparents would raise and care for the minor

child while Mother and Father were in college.

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The minor child was born on February 10, 2011, and as agreed, she lived with the

paternal grandparents. For the first seven and a half years of her life, the paternal

grandparents were the minor child’s primary caregivers in all respects, including love,

affection, nurturing, feeding, bathing, housing, clothing, academic training, guidance,

religious upbringing, and health care decisions. Mother remained involved in the minor

child’s life during this time, albeit to a limited degree. Although not explicitly stated, the

minor child’s extended stay with her paternal grandparents was likely motivated, at least

in part, by Father’s death on August 17, 2013, due to an apparent heroin overdose.

In the Spring of 2017, Mother asked for the first time that the minor child transition

to live primarily with her. In September 2017, Mother moved into a home with Steve

Kocevar (“Mr. Kocevar”), her boyfriend at the time. In November 2017, Mother and Mr.

Kocevar met with the paternal grandparents to discuss the minor child’s transition into

Mother’s care. The parties agreed that the minor child would transition into Mother’s care

after she finished first grade in June 2018, but the paternal grandparents would have liberal

access to the minor child, including on weekends, for overnight and midweek visits, for

holidays, for school and extracurricular events, and during the summer. The minor child’s

transition to Mother’s care occurred on August 26, 2018.

Not long after the minor child’s transition into Mother’s care, the relationship

between Mother and the paternal grandparents became strained. On December 3, 2018,

Mother canceled access “until further notice,” citing concerns that the minor child’s

paternal uncle, Kyle King (“Uncle”), may have interacted with the minor child against

Mother’s wishes. Uncle is Father’s brother and the son of the paternal grandparents. Uncle

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is a Tier III registered sex offender for life, having been convicted of sexual abuse of his

minor child. Uncle also has an alleged history of erratic behavior, including walking on

Rockville Pike with a loaded firearm, claiming that his children are spies against him, and

getting into altercations with past employers who he believed were conspiring against him.

Uncle allegedly possesses a wide array of weapons, including guns, bows, knives, and axes

that he keeps in his home on Grandfather’s property.

On December 7, 2018, just four days after Mother canceled access to the minor

child, the paternal grandparents filed a Verified Complaint for Custody, or in the

Alternative, for Visitation. In their complaint, the paternal grandparents alleged that they

are de facto parents of the minor child and requested shared physical and legal custody.

After applying the four-factor test for determining de facto parent status announced by the

Supreme Court of Maryland in Conover v. Conover, 450 Md. 51 (2016), the Circuit Court

for Montgomery County held that the paternal grandparents satisfied the test, qualified as

the minor child’s de facto parents, and had standing to contest custody without having to

prove the existence of exceptional circumstances or that Mother is an unfit parent. Having

concluded that the paternal grandparents are the minor child’s de facto parents, the Circuit

Court for Montgomery County proceeded to apply the best interest factors. In an order

dated December 12, 2019, the court ultimately granted Mother primary physical and sole

legal custody of the minor child, but awarded liberal visitation to the paternal grandparents.

Mother did not appeal this ruling.

There were no significant developments in the case for a couple years, aside from

the fact that Mother married Mr. Kocevar on July 4, 2020. Then, on May 20, 2022,

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approximately two and a half years after the 2019 Custody and Access Order, Mother filed

a Complaint for Custody and to Terminate “De Facto Parent Rights” (the “2022

Complaint”) in the Circuit Court for Washington County (the “circuit court”). In the 2022

Complaint, Mother requested that the court terminate the paternal grandparents’ de facto

parent status, arguing that their de facto parent status had limited her constitutional right to

direct the upbringing of the minor child. In May 2022, the paternal grandmother passed

away, leaving Grandfather as the remaining de facto parent. In a Motion to Dismiss,

Grandfather defended on the ground of res judicata, arguing that Mother was attempting to

impermissibly relitigate Grandfather’s de facto parent status. The court summarily

dismissed the 2022 Complaint in an order dated August 12, 2022.

While the 2022 Complaint was still pending, Mr. Kocevar initiated proceedings to

adopt the minor child in July 2022. Following dismissal of the 2022 Complaint,

Grandfather filed an objection to the adoption petition on September 23, 2022. This

objection prevented Mr. Kocevar from adopting the minor child due to costs associated

with litigating a contested adoption.

On February 23, 2023, Mother once again sued Grandfather to terminate his de facto

parent status (the “2023 Complaint”), forming the basis of the dispute presently before this

Court. As alternative relief in the 2023 Complaint, Mother also asked for a modification of

custody and for child support. Mother alleges that the main difference between this

complaint and the 2022 Complaint is Grandfather’s objection to Mr. Kocevar’s adoption

petition.

5
On August 10, 2023, the circuit court dismissed Mother’s requests to declare de

facto parenthood unconstitutional and terminate Grandfather’s de facto parent status,

reasoning that these claims were barred by res judicata. However, the circuit court declined

to dismiss Mother’s claims for a modification of custody and child support, instead setting

those issues in for a hearing on February 14, 2024.

Following hearings on February 14, 2024, and May 16, 2024, the circuit court issued

an order, dated June 4, 2024, in which the court maintained primary physical and sole legal

custody of the minor child with Mother, made some minor adjustments to Grandfather’s

access rights, and denied Mother’s request for child support.

Mother filed a timely notice of appeal with this Court on July 1, 2024.

STANDARD OF REVIEW

We review de novo the grant of a motion to dismiss. D.L. v. Sheppard Pratt Health

Sys., Inc., 465 Md. 339, 350 (2019). When considering a motion to dismiss a complaint for

failure to state a claim upon which relief may be granted, a court must assume the truth of,

and view in a light most favorable to the non-moving party, all well-pleaded facts and

allegations contained in the complaint, as well as all inferences that may reasonably be

drawn from them. RRC Northeast, LLC v. BAA Md., Inc., 413 Md. 638, 643 (2010). The

court should order dismissal only if the allegations and permissible inferences, if true,

would not afford relief to the plaintiff, i.e., the allegations do not state a cause of action for

which relief may be granted. Id.

“Ordinarily, child support orders are within the sound discretion of the trial court.”

Reichert v. Hornbeck, 210 Md. App. 282, 316 (2013) (citing Walker v. Grow, 170 Md.

6
App. 255, 266 (2006)). “Nonetheless, ‘where the order involves an interpretation and

application of Maryland statutory and case law, our Court must determine whether the

lower court’s conclusions are legally correct under a de novo standard of review.’” Id.

(quoting Walker, 170 Md. App. at 266) (cleaned up).

Like child support orders, “[d]ecisions concerning the award of counsel fees rest

solely in the discretion of the trial judge.” Petrini v. Petrini, 336 Md. 453, 468 (1994).

Thus, “[a]n award of attorney’s fees will not be reversed unless a court’s discretion was

exercised arbitrarily or the judgment was clearly wrong.” Id. However, “[c]onsideration of

the statutory criteria is mandatory in making the award and failure to do so constitutes legal

error.” Id.

DISCUSSION

I. Mother’s Attempt to Relitigate Grandfather’s De Facto Parent Status is
Barred by Res Judicata

Mother argues that the circuit court erred when it dismissed, on res judicata grounds,

her request to terminate Grandfather’s de facto parent status. She contends that her request

to terminate Grandfather’s de facto parent status is not barred by res judicata because there

has been a change in circumstances affecting the minor child’s welfare since the order

dismissing the 2022 Complaint. Specifically, Mother points to Grandfather’s objection to

Mr. Kocevar’s adoption petition as a new basis on which she seeks termination of

Grandfather’s de facto parent rights.

As a preliminary matter, Grandfather objects to Mother’s inclusion of the Objection

to Adoption in her Record Extract, and her reference to it in her opening brief, because the

7
Objection to Adoption was never made part of the record in this case. Furthermore,

Grandfather argues that his status as de facto parent has been settled since the 2018

litigation, and that Mother lost her right to challenge this status when she failed to timely

appeal the decision of the Circuit Court for Montgomery County. He also argues that

Mother’s as-applied challenge to the constitutionality of de facto parenthood, on the basis

of Grandfather’s objection to Mr. Kocevar’s adoption petition, is also barred by res judicata

because that issue was raised in the 2022 litigation, and Mother did not timely appeal the

Circuit Court for Washington County’s decision in that case.

Res judicata, also known as claim preclusion, is a legal doctrine that

bars the relitigation of a claim if there is a final judgment in a previous
litigation where the parties, the subject matter and causes of action are
identical or substantially identical as to issues actually litigated and as to
those which could have or should have been raised in the previous litigation.

R & D 2001 v. Rice, 402 Md. 648, 663 (2008) (cleaned up). Three elements must be

satisfied for a claim to be barred by res judicata:

(1) the parties in the present litigation are the same or in privity with the
parties to the earlier litigation; (2) the claim presented in the current action is
identical to that determined or that which could have been raised and
determined in the prior litigation; and (3) there was a final judgment on the
merits in the prior litigation.

Id.

The doctrine of res judicata does not bar all re-litigation. Instead, it “extends ‘only

to the facts and conditions as they existed at the time of the first judgment and does not bar

the fresh litigation of an issue which is appropriately subject to periodic redetermination,

as subsequent facts and changed conditions may alter the status of the thing being

8
evaluated.’” Scott v. Prince George’s Cnty. Dep’t of Soc. Servs., 76 Md. App. 357, 376

(1988) (quoting Towers v. Dir., Patuxent Inst., 18 Md. App. 248, 250 (1973)). That is why,

although custody and visitation orders entered by the court are intended to provide some

measure of finality, courts will entertain motions to modify custody and visitation if a party

can show a material change in circumstances affecting the best interest of the child. Barrett

v. Ayres, 186 Md. App. 1, 18 (2009).

Here, Mother argues that her request for termination of Grandfather’s de facto

parent rights is not barred by res judicata, because as long as there are new facts and

circumstances introduced at the second action which could not have been introduced at the

first, res judicata poses no barrier to a second action to terminate parental rights. See Scott,

76 Md. App. at 379. However, Mother did not allege in her complaint any abuse or neglect

of the minor child, any recent criminal convictions incurred by Grandfather, or any of the

other statutorily defined bases for termination. See Md. Code Ann., Fam. Law (“FL”)

§ 5-323(d). Rather, the only new fact or circumstance Mother points to is Grandfather’s

objection to Mr. Kocevar’s adoption petition.

Mother claims that Grandfather’s ability to use his de facto parent status to block

Mr. Kocevar from adopting the minor child is a new circumstance that unconstitutionally

interferes with her right as a parent to make decisions for the minor child. However, neither

Grandfather’s de facto parent status, nor its effect on Mr. Kocevar’s ability to adopt the

minor child, are new issues. Mother could have, and should have, raised her facial

challenge to the constitutionality of Grandfather’s de facto parent status during the 2018

litigation, but did not do so. When she did raise a constitutional challenge to Grandfather’s

9
de facto parent status in the 2022 litigation, that challenge was dismissed and was not

appealed. In both cases, the judgments of the circuit courts became final when Mother

failed to appeal within thirty days. See Lovero v. Da Silva, 200 Md. App. 433, 441-42

(2011) (discussing effect of failure to file within the 30-day deadline). Thus, her claim in

this case, that Grandfather’s de facto parent status unconstitutionally interferes with her

rights as a parent, is barred by res judicata.

A. Mother’s Failure to Appeal the 2019 Decision Rendered the Court’s
Determination of De Facto Parent Status Final

In her complaint, Mother argued that de facto parenthood is both facially

unconstitutional and unconstitutional as applied. When making a facial challenge, a party

asserts that a law or policy is invalid on its face and could never be found to be valid.

Thornton Mellon LLC v. Frederick Cnty. Sheriff, 479 Md. 474, 512 (2022). Thus, for a

facial challenge, the particular circumstances of the case do not matter, because the party

seeking to invalidate the law must prove that it is unconstitutional in all circumstances.

Even if we were to concede that the case at bar presents a new, unforeseen circumstance

that could not have been previously litigated, Mother’s facial challenge to Grandfather’s

de facto parent status would still be barred by res judicata.

In their 2018 Complaint, the paternal grandparents asserted standing to seek custody

of or visitation with the minor child on the ground that they were de facto parents of the

minor child. In its 2019 Order, the Circuit Court for Montgomery County agreed, holding

that the paternal grandparents are the minor child’s de facto parents and awarding them

visitation rights with the minor child. If Mother believed then, as she asserts now, that the

10
court’s decision unconstitutionally infringed on her rights as a parent, she should have

appealed that decision to this Court. However, Mother did not appeal that decision within

thirty days, so the judgment became final, and all future facial challenges to Grandfather’s

de facto parent status, including this one, were barred by res judicata.

B. Grandfather’s Objection to the Minor Child’s Adoption does not
Harm Mother in a Way that Could Not Have Been Raised and
Determined in the Prior Litigation

In addition to her facial challenge, Mother also brought an as-applied challenge to

the constitutionality of de facto parenthood. By bringing an as-applied challenge, a party

contends that a law or policy has an unconstitutional effect on the party. Thornton Mellon

LLC, 479 Md. at 512. Thus, if the law affects a party in a new or unexpected way that could

not have been previously litigated, a new as-applied challenge to the law will not be barred

by res judicata. Importantly, though, the doctrine of res judicata bars not only those claims

that were actually litigated, but also those claims which could have or should have been

raised in the previous litigation. R & D 2001, 402 Md. at 663.

Under Maryland Rule 9-107, “[a]ny person having a right to participate in a

proceeding for adoption or guardianship may file a notice of objection to the adoption or

guardianship.” Md. Rule 9-107. The class of persons having a right to participate in a

proceeding for adoption or guardianship is “strictly limited to those with legal rights at

stake.” In re Malichi W., 209 Md. App. 84, 92 (2012) (quoting 2 Am. Jur. 2d Adoptions

(2004) at § 121). A finding of de facto parent status comes with a basket of legal rights,

including the right to contest custody and visitation. See Conover, 450 Md. at 85 (“We hold

that de facto parents have standing to contest custody or visitation[.]”); David A. v. Karen

11
S., 242 Md. App. 1, 27 (2019) (“De facto parent status effectively elevates a third party to

equal footing with biological parents for the purpose of determinations of custody and

visitation[.]”). Since the Circuit Court for Montgomery County found that Grandfather was

a de facto parent, he has legal rights at stake in any potential adoption proceeding for the

minor child. Thus, the right to object to the minor child’s adoption is necessarily included

within the panoply of rights afforded to him as a de facto parent.

Mother argues that by exercising his right to object to Mr. Kocevar’s adoption

petition, Grandfather invaded her constitutional rights as a parent in a way that is different

from his alleged invasion of those rights in 2018 when he sought custody or visitation with

the minor child. This argument is not persuasive.

Under Mother’s argument, we would have to accept that Grandfather caused her

harm in 2019 when he used his de facto parent status to secure visitation with the minor

child, and that when he objected to the minor child’s adoption in 2022, he caused Mother

a new, distinct harm. But the two alleged harms are not distinct from one another. Rather,

both alleged harms stem from Mother’s belief that Grandfather’s de facto parent status

unconstitutionally infringes on her rights as a parent. The fact that Grandfather exercised

his de facto parent rights in 2022 in a way that is different from the way he exercised his

rights in 2018 does not result in a new harm. Both are part of one continuing harm that

Mother alleges has existed since Grandfather secured de facto parent status, and its

accompanying rights, in 2019. Mother had an opportunity to contest the circuit court’s

adverse ruling on appeal in 2019, but did not do so, and that judgment became final. Mother

again had an opportunity to challenge the circuit court’s adverse ruling in 2022, but did

12
not, and that judgment became final. Mother should not get a third bite at the apple in this

case. Her constitutional claims regarding de facto parenthood are barred by res judicata.

II. The Constitutionality of De Facto Parenthood is Not Properly Before this
Court, and Even if it Were, this Court Cannot Grant Mother the Relief She
Seeks

Mother argues that de facto parenthood, established in this State by the Supreme

Court of Maryland in Conover, is unconstitutional, both on its face and as applied here.

Grandfather, on the other hand, argues that the constitutionality of de facto parenthood is

well-settled in Maryland since the Supreme Court of Maryland’s decision in Conover. He

points to Caldwell v. Sutton, 256 Md. App. 230 (2022), where this Court held that when a

parent allows a person to “develop a parent-like relationship with a child, ‘the legal parent’s

rights to unilaterally sever that relationship are necessarily reduced.’” 256 Md. App. at 267

(quoting Conover, 450 Md. at 75). Since the test to establish de facto parenthood requires

the knowing participation of the legal parent in fostering a parent-like relationship,

Grandfather contends that de facto parenthood does not infringe upon the legal parent’s

constitutional rights.

A relatively recent concept in Maryland, de facto parenthood is a means by which a

third party may have standing to contest custody and visitation of a minor child without

having to prove exceptional circumstances or unfitness of the legal parent. Conover, 450

Md. at 85. Generally, a third party, like a grandparent, must prove exceptional

circumstances or unfitness of the legal parent before a court can even consider a custody

or visitation award. Id. at 61. However, under Conover, a third party who meets the

requirements of de facto parenthood has standing, equal to that of a legal parent, to seek

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custody or visitation, and can bypass the hurdles that a third party would normally have to

jump over. Id. at 85.

The Court in Conover adopted a four-factor test, established by the Wisconsin

Supreme Court in In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wis. 1995), under which

a third-party seeking de facto parent status must establish the following when petitioning

for access to a minor child:

(1) that the biological or adoptive parent consented to, and fostered, the
petitioner’s formation and establishment of a parent-like relationship with
the child;

(2) that the petitioner and the child lived together in the same household;

(3) that the petitioner assumed obligations of parenthood by taking
significant responsibility for the child’s care, education and development,
including contributing towards the child’s support, without expectation
of financial compensation; and

(4) that the petitioner has been in a parental role for a length of time sufficient
to have established with the child a bonded, dependent relationship
parental in nature.

450 Md. at 74.

The Court “adopted the H.S.H.-K. test, in part, because it is ‘narrowly tailored to

avoid infringing upon’” the fundamental constitutional rights of parents. Basciano v.

Foster, 256 Md. App. 107, 145 (2022) (quoting Conover, 450 Md. at 74). Specifically, the

Court highlighted the first factor—the consent prong—as being “critical because it makes

the biological or adoptive parent a participant in the creation of the psychological parent’s

relationship with the child.” Conover, 450 Md. at 75 (quoting Marquez v. Caudill, 656

S.E.2d 737, 744 (S.C. 2008)); see also Basciano, 256 Md. App. at 143, 146-47 (holding

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that, where a child was placed in the care of his grandparents due to parental drug use, the

first factor of the H.S.H.-K. test was not satisfied because neither of the child’s legal parents

ever consented to the formation of a parent-like relationship between the child and the

grandparents); Caldwell, 256 Md. App. at 279-80 (holding that the first factor was satisfied

where the legal parent signed a form consenting to a grandparent having sole legal and

physical custody of her minor child prior to being incarcerated).

Mother now argues that the H.S.H.-K. test is overbroad and unconstitutionally

infringes upon her parental rights. However, since her claim is barred by res judicata, it is

not properly before this Court, and we decline to consider it. Additionally, even if Mother’s

constitutional claim was properly before this Court, we could not grant the relief she seeks.

When it adopted the concept of de facto parenthood in Conover, the Supreme Court

of Maryland addressed arguments like Mother’s regarding the constitutionality of such

status. The Court found that de facto parenthood is consistent with “the fundamental right

of parents to make decisions concerning the care, custody, and control of their children,”

because under the first factor of the H.S.H.-K. test, it is the biological or adoptive parent’s

decision to foster a parent-like relationship which leads to the creation of de facto parent

status. Conover, 450 Md. at 75-76 (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)).

Absent “knowing participation by the biological parent,” a de facto parent relationship

cannot be formed. Id. at 74.

Despite this, Mother insists that the test adopted for determining de facto parent

status is unconstitutional. She requests that this Court overturn the test adopted in Conover

and replace it with a stricter test established in the 2017 Uniform Parentage Act (“UPA”).

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The UPA test includes two significant departures from the standard set forth in H.S.H.-K.

First, instead of requiring that a prospective de facto parent take “significant responsibility

for the child’s care” as is in the current test, the UPA test requires them to undertake “full

and permanent responsibilities of a parent of the child.” Second, the UPA test also requires

that the prospective de facto parent hold the child out as their child.

“This Court is ‘bound by the [Supreme Court of Maryland] precedent.’” Shaarei

Tfiloh Congregation v. Mayor and City Council of Balt., 237 Md. App. 102, 145 (2018)

(quoting Montgomery Cty. Career Fire Fighters Ass’n v. Montgomery Cty., 210 Md. App.

200, 230 (2013)); see also Scarborough v. Altstatt, 228 Md. App. 560, 577–78 (2016), cert.

denied, 450 Md. 129 (2016) (“[T]he ruling of the [Supreme Court of Maryland] remains

the law of this State until and ‘[u]nless those decisions are either explained away or

overruled by the [Supreme Court of Maryland] itself.’” (citation omitted)). Accordingly,

we will not adopt and apply a new standard in contravention of existing Supreme Court of

Maryland precedent.

III. Where a De Facto Parent Asserts Rights to Custody or Visitation with a
Minor Child that are Equal to those of a Legal Parent, he or she Carries a
Corresponding Obligation to Support the Minor Child that Should be
Enforced According to the Best Interest of the Child

Mother argues that de facto parents should be required to pay child support because

de facto parents are “placed on equal footing with legal parents regarding custody and

visitation rights.” Mother contends that if de facto parents have equal rights to custody and

visitation, they should also have an equal responsibility to support the child. Mother points

to other situations where we have held that a non-biological, non-adoptive parent was

16
required to pay child support, such as in cases of artificial insemination. Mother further

argues that the American Law Institute (“ALI”) principles support the idea of de facto

parent child support.

Grandfather responds that de facto parents should not be obligated to pay child

support. Echoing the circuit court, Grandfather argues that the “rights and obligations for

a de facto parent stem from the relationship between the child and the de facto parent when

such relationship is consented to and fostered by the natural parent.” He contrasts this with

the rights and obligations for payment of child support, which he argues “stem from the

conscious creation, adoption, and/or birthing of the child.” Grandfather distinguishes this

case from the artificial insemination cases cited by Mother, arguing that unlike those cases,

he never had any choice whether to conceive the child here. Rather, Grandfather contends

that he “gratuitously assumed the burdens of custody” and is merely “a grandparent who

wants to maintain a relationship with his granddaughter.”

De facto parent child support is an issue of first impression for this Court. 1 This

Court and the Supreme Court of Maryland have answered other important questions

stemming from the Court’s decision in Conover. For example, in E.N. v. T.R., 474 Md. 346

(2021), the Court clarified that under the first factor of the H.S.H.-K. test, both legal parents,

if there are more than one, must consent to and foster a parent-like relationship with a third

1
In Caldwell v. Sutton, the circuit court ordered the child’s grandmother to provide
monetary support for the child, despite its finding that she was a mere third party. 256 Md.
App. 230, 283 (2022). On appeal, she argued that the circuit court lacked authority to issue
such an order. Id. Because this Court reversed the circuit court’s determination that the
grandmother was not a de facto parent, we declined to address the issue of child support.
Id. at 284. That issue is now squarely before us in this case.
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party to satisfy the test. 474 Md. at 394-95. And in Kpetigo v. Kpetigo, 238 Md. App. 561

(2018), this Court explained that de facto parent status is not limited to divorcing same-sex

spouses. 238 Md. App. at 574. This case presents an opportunity for this Court to address

another important question stemming from Conover: whether de facto parents owe their

“de facto children” a legal, statutory obligation of support.

Under § 5-203 of the Family Law Article, “The parents of a minor child . . . are

jointly and severally responsible for the child’s support, care, nurture, welfare, and

education.” Md. Code Ann., FL § 5-203(b)(1) (emphasis added). The statute does not

define “parent,” but there is no question that this provision applies to biological or adoptive

parents. Whether it also applies to de facto parents, however, is the question presented here.

Few states have considered whether de facto parents may be obligated to pay child

support, but one state has specifically addressed the question. In Pitts v. Moore, 90 A.3d

1169 (Me. 2014), the Supreme Judicial Court of Maine held that “once the court finds that

a party is a de facto parent, that party is a parent for all purposes, and the court must then

go on to consider the appropriate award of parental rights and responsibilities—including

child support[.]” 90 A.3d at 1182. The court arrived at this conclusion because in Maine,

“[a] determination that a person is a de facto parent means that he or she is a parent on

equal footing with a biological or adoptive parent, that is to say, with the same opportunity

for parental rights and responsibilities.” Id. at 1181 (emphasis added). Importantly, the

Supreme Judicial Court of Maine made this decision despite the fact that, as in Maryland,

Maine’s “Legislature has yet to speak about de facto parenthood[.]” Id.

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Grandfather argues that Pitts is distinguishable because that case involved an

individual who mistakenly believed himself to be the father of a child, but later learned that

another person was the child’s biological father, while this case involves an individual who

gratuitously took on the obligations of parenthood while a natural parent was unavailable.

Grandfather’s argument is unpersuasive, however. The court in Pitts never indicated that

its holding hinged on how an individual becomes a de facto parent, just that they are a de

facto parent. Thus, the difference that Grandfather points to between this case and Pitts is

irrelevant.

De facto parents in Maryland enjoy similar custody and visitation rights as de facto

parents in Maine. For example, this Court has held that “[d]e facto parent status effectively

elevates a third party to equal footing with biological parents for the purpose of

determinations of custody and visitation[.]” David A., 242 Md. App. at 27 (emphasis

added). Additionally, because a de facto parent has equal rights to custody and visitation

as a legal parent, a de facto parent also has equal rights to attorney’s fees and costs in such

proceedings. Id. at 28. Thus, de facto parents have the same powers in relation to children

as legal parents.

Here, Grandfather attempts to reap the benefits of his de facto parent status without

incurring any of the costs. It is clear that in Maryland, biological and adoptive parents have

rights to custody and visitation with their children, but also owe their children

corresponding duties of support. Grandfather claims that because he is a de facto parent,

he can enjoy those same rights of custody and visitation, while simultaneously owing no

corresponding duties of support. Such an outcome would be both illogical and inequitable.

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Therefore, we hold that a de facto parent who asserts his or her rights to custody or

visitation owes a corresponding duty to pay child support, subject to a best interest of the

child analysis.

The circuit court came to the opposite conclusion. In his remarks from the bench,

the trial judge stated, “I do not find it equitable or legal for [Grandfather] to have to pay

child support - - u’m - - it’s just not the law for de facto parenting.” In support of its finding,

the circuit court provided the following explanation:

In child support, two people decide - - and I use that term deliberating, and
I’ve used it for years deliberating, they decide to have a child maybe because
of promiscuity or maybe it was a more thoughtful decision. But they decide
to have a child and those parents made the decision to be responsible for that
child. Mr. King did not decide - - uh - - to conceive [the minor child].

The court added:

Those people being a parent by estoppel or an adoptive parent are parents.
They are the legal guardians of the children, they are parents. And they pay
child support. U’m - - Mr. King is not in that category.

There is Maryland case law supporting the circuit court’s finding that choice is

determinative of whether one is a parent for purposes of child support. For example, in

Sieglein v. Schmidt, 224 Md. App. 222 (2015), this Court held that the non-biological, non-

adoptive parents of a child, conceived through in vitro fertilization (IVF) via donated egg

and sperm during marriage, were the legal parents of that child for purposes of paying child

support. 224 Md. App. at 227-28. This Court reasoned that they had a duty to support the

child because “Mother and Father, during their marriage, willingly and voluntarily agreed

to conceive a child through assisted reproductive services using anonymously donated

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genetic material and that volitional action resulted in the birth of a child[.]” Id. at 227

(emphasis added).

Courts in other states have also indicated that choice is of paramount concern in

determining whether one is a parent for purposes of paying child support. See, e.g., Elisa

B. v. Superior Court, 117 P.3d 660, 662 (Cal. 2005) (holding that a woman had a legal

obligation to support twin children, despite no biological or adoptive relation to the

children, because she “agreed to raise [the] children with her lesbian partner, supported her

partner’s artificial insemination using an anonymous donor, and received the resulting twin

children into her home and held them out as her own”); Matter of Shondel J. v. Mark D.,

853 N.E.2d 610, 611 (N.Y. 2006) (holding that where a man held himself out as a child’s

father, but later determined that he was not in fact the child’s biological father, the man

was still obligated to make child support payments since the child justifiably relied on his

representation of paternity by forming a bond with him, to the child’s detriment); L.S.K. v.

H.A.N., 813 A.2d 872, 877-78 (Pa. Super. Ct. 2002) (holding that a woman, who was

neither the biological nor adoptive parent of five children, was still obligated to support

them because she and the biological mother agreed to have the children through artificial

insemination during their relationship, and she was significantly involved in the children’s

day-to-day lives for over eight years).

Grandfather contends that the artificial insemination cases are inapplicable since,

unlike those cases, he had no choice regarding the conception of the child. Instead, he

points to two out-of-state cases where grandparents were deemed to have no child support

obligations.

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In S.R.G. v. D.D.G., 224 A.3d 368 (Pa. Super. Ct. 2019), a pair of grandparents had

legal and primary physical custody of their grandchild due to the unfitness of the child’s

parents. 224 A.3d at 369. After the grandparents divorced, the grandmother (“S.R.G.”)

sought child support payments from the grandfather (“D.D.G.”). Id. at 370. Importantly,

the court considered the grandparents to be third parties, not de facto parents. Id.

Acknowledging that she could not base her claim for child support merely on D.D.G.’s in

loco parentis status, S.R.G. instead based her claim on the Pennsylvania Supreme Court’s

decision in A.S. v. I.S., 130 A.3d 763 (Pa. 2015). In A.S., the court held that where a

stepfather had “taken sufficient affirmative steps legally to obtain parental rights[,]” he

“should share in parental obligations, such as paying child support.” Id. at 770-71. Unlike

the stepfather in A.S., the court found that D.D.G. could not be obligated to pay child

support because “[D.D.G.] has not asserted custody rights against a fit biological parent,

but rather another third party.” S.R.G., 224 A.3d at 372.

Grandfather in the case at bar is more like the stepfather in A.S. than the grandfather

in S.R.G. Like the stepfather in A.S., Grandfather “haled a fit [biological mother] into court”

and “litigat[ed] to achieve the same legal and physical custodial rights as would naturally

accrue to any biological parent.” A.S., 130 A.3d at 770. Also like the stepfather in A.S.,

who “asserted [his] parental rights to prevent a competent biological mother from

relocating with her children,” Grandfather has asserted his de facto parent rights, against

Mother’s wishes, to prevent the child’s adoption by Mr. Kocevar. Id. Importantly, the

grandparents in S.R.G. “never sought court-ordered custody in an effort to assert custodial

rights as against either or both parents.” 224 A.3d at 371. That is exactly what the

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grandparents in this case did when they sued for custody of the minor child in 2018. Thus,

while Grandfather may have “gratuitously and generously filled the parental void” initially,

his actions were no longer gratuitous when he and his wife “affirmatively, assertively,

aggressively or otherwise sought out a parental role” by suing for custody in 2018. Id. For

these reasons, S.R.G. does not support Grandfather’s contention that he should not be

required to pay child support.

Grandfather also cites In re Marriage of Bergeson-Flanders and Flanders, 509 P.3d

1083 (Colo. App. 2022), a Colorado case where a biological father sought child support

payments from the minor child’s maternal grandmother. The child’s father in Flanders,

relying on another Colorado case, In re Parental Responsibilities Concerning A.C.H., 440

P.3d 1266 (Colo. App. 2019), argued that the maternal grandmother, who was allocated

parental responsibilities in a dependency and neglect proceeding, should be ordered to pay

him child support. Flanders, 509 P.3d at 1084. In A.C.H., the Colorado Court of Appeals

held that “a psychological parent who fights for and obtains all the same responsibilities of

a legal parent” must “also assume the responsibility to pay child support.” 440 P.3d at

1271. Among the facts critical to the court’s holding were: (1) the stepfather and the child

lived together as a family for nearly four years; (2) the stepfather was the only father the

child had ever known; (3) even after he and the biological mother broke up, the stepfather

continued to exercise equal parenting time with the child for the next six years; and (4) the

court ultimately granted him an order for parenting time and decision-making

responsibility for the child. Id. Unlike A.C.H., the court in Flanders held that the maternal

grandmother was not obligated to pay child support because “maternal grandmother never

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sought parental rights, and nothing in the record shows that maternal grandmother fought

for permanent custody of the child or did anything more than agree to care for the child[.]”

509 P.3d at 1086.

Here, Grandfather has done far more than merely agree to care for the child. Unlike

the maternal grandmother in Flanders, Grandfather has affirmatively sought parental

rights, including custody of the child. In 2018, he sued for, and won, de facto parent rights,

which put him on equal footing with the child’s legal parent. The Supreme Court of

Maryland has explained that “[t]he term ‘psychological parent’ is closely related to the ‘de

facto parent’ label[.]” Conover, 450 Md. at 67. Additionally, he asserted his de facto parent

rights to prevent Mr. Kocevar from adopting the child. Thus, like the stepfather in A.C.H.,

Grandfather “[fought] for and obtain[ed] all the same responsibilities of a legal parent” and

therefore must “also assume the responsibility to pay child support.” 440 P.3d at 1271.

What the circuit court failed to appreciate is that we are here today precisely because

of the choices that Grandfather has made throughout the history of this case. Grandfather

did not choose to conceive the minor child; that choice was made by Mother and Father.

Nor has Grandfather ever chosen to hold the minor child out as his own. However,

Grandfather did choose to develop a parent-like bond with the minor child for the first

seven and a half years of her life. He chose to exercise his de facto parent rights when he

sued for custody or visitation of the minor child in the first place. And finally, he chose to

exercise his de facto parent rights when he objected to Mr. Kocevar’s adoption of the minor

child, effectively blocking the adoption from proceeding forward. Grandfather has made

plenty of choices throughout the history of this case, and he has reaped great rewards from

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those choices, including liberal visitation rights with the minor child. But as with any other

parent, whether biological or adoptive, a de facto parent who exercises his rights to custody

and visitation with a minor child must shoulder a corresponding duty to support that child.

IV. The Circuit Court Was Not Required to Assess Either Party’s Financial
Status and Needs Before Denying Grandfather’s Request for Attorney’s
Fees

Grandfather argues that the circuit court erred as a matter of law when it denied his

request for attorney’s fees because it did not assess either party’s financial status and needs.

Mother, on the other hand, argues that the circuit court did not err because, in her view,

consideration of the statutory criteria is only mandatory when the court actually grants an

award of attorney’s fees, which was not the case here. Additionally, Mother argues that

even if the court did err by failing to assess either party’s financial status and needs, such

error was harmless.

Fee awards in child custody and support cases are governed by § 12-103 of the

Family Law Article. That section states in relevant part:

(a) The court may award to either party the costs and counsel fees that are
just and proper under all the circumstances in any case in which a person:

(1) applies for a decree or modification of a decree concerning the
custody, support, or visitation of a child of the parties; or
(2) files any form of proceeding:
(i) to recover arrearages of child support;
(ii) to enforce a decree of child support; or
(iii) to enforce a decree of custody or visitation.

(b) Before a court may award costs and counsel fees under this section, the
court shall consider:

(1) the financial status of each party;
(2) the needs of each party; and

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(3) whether there was substantial justification for bringing,
maintaining, or defending the proceeding.

Whether to grant an award of attorney’s fees is a matter of discretion committed to

the sound discretion of the trial court. David A., 242 Md. App. at 23. If, in the exercise of

its discretion, the court chooses to award attorney’s fees, then Section 12-103(b) requires

the court to consider three things: (1) the financial status of each party; (2) the needs of

each party; and (3) whether each party had a substantial justification for its position in the

proceeding. If the court grants an award of attorney’s fees without considering all three

criteria, it commits legal error. See Davis v. Petito, 425 Md. 191, 201 (2012) (“[S]ubstantial

justification is but one consideration in the triad, the others being financial status and needs,

to support fee shifting.”) (emphasis added); Petrini v. Petrini, 336 Md. 453, 468 (1994)

(“Consideration of the statutory criteria is mandatory in making the award and failure to

do so constitutes legal error.”) (emphasis added); David A., 242 Md. App. at 35 (finding

that the court’s authority “to award attorney’s fees and costs in a custody, visitation, or

child support proceeding” is “subject only to the requirement that the court must first

consider” the three mandatory criteria provided by Section 12-103(b)) (cleaned up)

(emphasis added). If a court denies a request for attorney’s fees, however, that denial will

be reviewed only for abuse of discretion.

Here, the circuit court discussed why it believed that Mother had substantial

justification for bringing this action, explaining that “these are novel areas of law, and

people should be encouraged to pursue novel and unique areas of law.” The court also

discussed the relative value of the legal services afforded to both parties, explaining that

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Mother was represented by pro bono counsel, while Grandfather was not. The court then

weighed these competing considerations and announced that “not finding any lack of

substantial justification, u’m – I have to deny the request for attorney’s fees.” The court’s

denial of attorney’s fees is reviewed for abuse of discretion. David A., 242 Md. App. at 23.

Declining to award Grandfather any attorney’s fees in this case was not an abuse of the

circuit court’s discretion because, as the court pointed out, Mother’s complaint in this case

raised novel questions about an emerging area of the law in Maryland. Thus, the court’s

discretion was not exercised arbitrarily, and its decision to deny an award of attorney’s fees

was not clearly wrong.

In making this determination, the circuit court did not conduct the “systematic

review of economic indicators in the assessment of the financial status and needs of the

parties” contemplated by Section 12-103. Davis, 425 Md. at 206. If the court had granted

an award of attorney’s fees without completing this mandatory analysis, it would have

committed legal error. However, such review is unnecessary when the court denies an

award of attorney’s fees. Since the court did not award attorney’s fees in this case, its failure

to consider the financial status and needs of the parties was not error.

JUDGMENT OF THE CIRCUIT COURT
FOR WASHINGTON COUNTY IS
AFFIRMED IN PART AND REVERSED IN
PART. CASE IS REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. COSTS ARE TO BE
DIVIDED EQUALLY BETWEEN THE
PARTIES.

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