Caldwell v. Sutton

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