Mother who was convicted of murdering her child’s father showed a material change of circumstances and good cause to award custody of the child to her; however, the child’s grandmother was a de facto parent



United States

In Caldwell v. Sutton, 424 (Md. Ct. Spec. App. November 30, 2022), a grandmother appealed the trial court’s order granting the child’s mother sole legal and physical custody of the child despite the fact that the mother killed the child’s father.

The trial court did not err in finding a material change in circumstances

While the mother was incarcerated, the grandmother was awarded sole legal and physical custody of the child by court order, pursuant to the mother’s written consent. Thus, when the mother was released from prison, to regain custody of the child, she was required to show a material change in circumstances. A change is material if it affects the welfare of the child. 

The grandmother argued that in assessing whether there was a material change in circumstances, the trial court should have only considered evidence that occurred since the last custody order. The Maryland Court of Special Appeals agreed that reconsideration of custody orders generally should focus on changes in circumstances that have occurred since the last court hearing; however, evidence of past history may be relevant to a party’s fitness for custody.

In this case, the trial court did rely on changes in circumstances that occurred after the last custody hearing; namely: the mother’s release from incarceration; the mother’s efforts to establish a stable environment for the child; and, the mother’s desire to modify the custody and visitation arrangement with the child’s grandmother. Thus, the trial court did not err in finding a material change in circumstances. The trial court also did not err in admitting evidence of the mother’s relationship with the child’s father and the circumstances of the father’s death in order to evaluate whether it was in the child’s best interest for the mother to have custody. 

The trial court did not err in finding good cause under Md. Code, Fam. Law § 9-101.2

Under Md. Code, Fam. Law § 9-101.2, unless good cause is shown by clear and convincing evidence, a court may not award custody of a child to a parent who has been found guilty of the first-degree or second-degree murder of the child’s other parent by a Maryland court. In this case, the mother pleaded guilty, by means of an Alford plea, to the second-degree murder of the child’s father. Therefore, the trial court could only award the mother custody of the child if it was satisfied by clear and convincing evidence that there was good cause to do so. 

The Court found that the trial court did not err in finding that the mother met this burden. “Good cause” as used in section 9-101.2 means a substantial reason to find that it is in the child’s best interests to return to the parent’s custody. This definition is flexible and courts should consider the facts and circumstances of each case in making the determination. The trial court made clear that the best interests of the child were paramount to its decision. Based on the evidence presented at trial, the trial court found that the mother’s motivation for committing the crime stemmed from years of physical and sexual abuse at the hands of the child’s father. The mother had no prior convictions, there was no evidence that she committed any acts of violence since the murder, she had obtained stable housing and employment, engaged consistently in therapy, and was complying with the terms of her probation. Additionally, the trial court found that the mother genuinely wanted to be with her child and the child wanted to have a relationship with their mother. 

However, the trial court erred in finding that the grandmother was not a de facto parent

When a legal parent allows a person to develop a parent-like relationship with a child, the legal parent’s rights to unilaterally sever that relationship are reduced. If a third party establishes that they are a de facto parent, that person is deemed to have status equal to a biological or adoptive parent in custody determinations. 

To qualify as a de facto parent, a party must satisfy a four-part test showing: the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; the petitioner and the child lived together in the same household; the petitioner assumed the obligation of parenthood by taking significant responsibility for the child’s care, education, and development, including contributing to the child’s support, without expectation of financial compensation; and, 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. 

The trial court had found that the grandmother was not a de facto parent because, although the mother consented to the grandmother having legal and physical custody, the mother testified that this consent was for the grandmother to have temporary custody during her incarceration, not consent for a permanent, parent-like relationship. The Court of Special Appeals disagreed and found that the grandmother satisfied the test for a de facto parent. The mother took the child to the grandmother before turning herself in to the police and signed a consent form for the grandmother to have sole legal and physical custody while she was incarcerated. The grandmother took care of the child’s physical, educational, and psychological needs for close to eight years. Under these circumstances, the child’s mother, as the child’s sole legal parent, consented to a parent-like relationship between the grandmother and the child, even if she subsequently stated that she did not intend to consent to the grandmother having de facto parent status. 

The Court also rejected the mother’s argument that the grandmother failed to satisfy the requirement that she assumed the obligation of parenthood without expectation of financial compensation. The evidence indicated that the grandmother took custody of the child out of family affinity, not for financial benefit. The grandmother’s subsequent receipt of governmental benefits to which the child was entitled did not change the analysis, particularly because the grandmother was the child’s court-appointed guardian of property. 


The Court affirmed in part and vacated in part the trial court’s judgment. The Court remanded the case for further proceedings given its finding that the grandmother was a de facto parent. The Court instructed the trial court to conduct a new best-interest analysis with the grandmother having the status of a legal parent, not a third party.

December 20, 2022
Caldwell v. Sutton, 424 (Md. Ct. Spec. App. November 30, 2022)
Author: Grace Baehren
Maryland Courts