MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	71

Docket: Cum-19-392

Submitted

On	Briefs: April	14,	2020

Decided: May	19,	2020

Revised: June	23,	2020

Panel: MEAD,	GORMAN,	JABAR, HUMPHREY, HORTON,	and	CONNORS, JJ.

Majority: MEAD,	GORMAN,	JABAR,	HUMPHREY, HORTON,	and	CONNORS, JJ.

Concurrence/

				Dissent: JABAR,	J.

TIMOTHY	R.	LIBBY

v.

KYLE	ESTABROOK

HORTON,	J.

[¶1]	 	 Timothy	 R.	 Libby	 appeals	 from	 a	 judgment of	 the	 District	 Court	

(Portland,	J.	French,	J.)	dismissing,	for	lack	of	standing, his	petition	to	establish

de facto	parentage	of	his	stepson,	the	biological	child	of	Kyle	Estabrook.		Libby	

contends	that	the	court	abused	its	discretion	in	declining	to	hold	an	evidentiary	

hearing to	 determine	 disputed	 facts	 relevant	 to	his standing.	 	We	 vacate	the	

judgment	and	remand	for	such	a	hearing.
2

I. BACKGROUND

[¶2]		The	following	factual	assertions are	taken from	Libby’s	affidavit	in	

support	of	his	petition and	from	the	procedural	record,	except	where	otherwise	

indicated.		See Young	v.	King,	2019 ME	78,	¶	2,	208	A.3d	762.

[¶3]	 	 The	 child	 was	 nine	 years old	 when	 Libby	 filed	 his	 petition	 to	

establish	de	facto	parentage.		Libby	is	the child’s	stepfather,	and	Estabrook	is	

the	child’s	biological	father.		The	child’s	mother	died	in	March 2019.

[¶4]		Libby	and	the child’s	mother	met	and	began	dating	in 2012,	when	

the	 child was	 three	 years	 old.	 	 Shortly	 thereafter,	 Libby	 moved	 in	 with	 the	

mother	and	 the	child,	and	the	 three	“spent	 time	 together	as	a	 family.”		While	

Libby	was	deployed to	Afghanistan in	2013	and	2014,	the	mother	and	the	child	

participated	in	events	with	 Libby’s	 family.		When	 Libby	returned,	he	and	 the	

mother	 purchased	 a	 house	 together	 in	 Lewiston and	 eventually married	 in	

September	 2017.	 	 While	 living	 together,	 Libby	 and	 the	 mother	 shared	

responsibility	for	caring	for	the	child.

[¶5]		According	to	Libby,	Estabrook’s	contact	with	the	child	during	this	

time	 was	 “sporadic	 and	 inconsistent,”	 and	 he did	 not	 have	 “more	 frequent	

contact”	with	the	child	until	2017.
3

[¶6]		The	child	considers	Libby’s	family	to	be	his	family,	and	he	refers	to	

Libby’s	 family	 members	 as his “Pop-Pop,” “Grandma,”	 uncles,	 aunts,	 and	

cousins.		Likewise,	Libby’s	family	considers the	child	to	be	part	of	their	family.		

Libby,	the	mother,	and	the	child	celebrated	holidays	and	birthdays	with	Libby’s	

family	 and attended	 all	 of	 the “Family	 Day” events	 held	 by	 Libby’s	 National	

Guard	unit.

[¶7]	 	 The	 mother	 died	 unexpectedly	 in	 March	 2019.	 	 Estabrook	 took	

custody	of	the	child	after	the	mother’s	death.		Neither	Libby nor	the	mother’s	

family has	seen	the	child	since	the	mother’s	funeral.

[¶8]	 	 In	 May	 2019,	 Libby	 filed	 a	 petition	 to	 be	 adjudicated	the	 child’s

de facto	 parent.	 	 See 19-A	 M.R.S.	 §	 1891 (2020).	 	 With	 his	 petition,	 Libby	

included	an	affidavit	alleging facts	to	support	the	existence	of	a	de facto	parent	

relationship	with	the	child.		See id. §	1891(2)(A).

[¶9]	 	 As	 permitted	 by	 statute,	Estabrook	 filed	 his	 own	 affidavit,	see	id.

§ 1891(2)(B), and he requested	that	Libby’s	petition	be	dismissed.		Estabrook’s	

affidavit	 contravenes	many	 of	 Libby’s	 factual	 assertions and presents	 a	 very	

different	 picture of	 the parties’	 respective	 relationships	 with	 the	 child.		

Estabrook denies that	he	had	only	sporadic	contact	with	his	son	before	2017;	

he	instead	asserts that	the	child	consistently	resided	with	him	roughly	half	the	
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time.		He	also	contends that	Libby	“often	kept	[the	child]	from	me	and	isolated	

[the	mother	 and	 the	child]	 from	 their	 extended	 family,	instead	making	 them	

‘adopt’	his	family	as	their	own.”		Finally,	Estabrook	rejects	the	notion	that	Libby	

has	taken	on	a	parental	role,	stating that	the	mother	left	Libby	and	lived	with	

the	child	in	a	motel	shortly	before	she	died	and	that	any	relationship	between	

Libby	and	the	child	is	due	solely	to	“the	fact	that	[the	child]	spent	half	his	time	

with	[the	mother]” while	Libby	and	the	mother	were	together.

[¶10]		After	reviewing	the	parties’	affidavits,	the	court	dismissed	Libby’s	

petition	for	lack	 of	 standing.	 	In	 concluding	 that	 Libby	was	 not	 entitled	 to	 a	

hearing	to	resolve	disputed	facts	in	the	parties’	affidavits,	the	court	focused	on	

one	element	of	standing:	whether	 the	mother	“understood,	acknowledged	or	

accepted	 that	 or	 behaved	 as	 though”	 Libby	 was	 a	 parent	 to	 the	 child.	 	 Id.

§ 1891(3)(C).		In	its	decision,	the	court	reasoned,

[Libby]	has	not	shown	 that	 [the	mother]	acknowledged	his	

role	as	being	anything	other	than	a	support	system	for	her	and	[the	

child].		 [Libby’s]	attestations,	even	 taken	as	 true,	 fail	 to	establish	

that	[the	child’s]	parents	understood,	acknowledged,	accepted,	or	

behaved	as	though	[Libby was the	child’s]	parent.

.	.	.	.

.	 .	 .	While	it	 appears	 that	 [Libby]	has	provided	care	 to	 [the	

child],	 the	 court	 finds	 that	 he	 has	 done	 so	 as	 [the	 mother’s]	

husband,	not	as	a	person	who	has	fully	and	completely	undertaken	
5

a	 permanent,	 unequivocal,	 committed	 and	 responsible	 parental	

role	in	[the	child’s]	life	.	.	.	.

(Footnote	omitted)	(quotation marks	omitted). The	court	thus	determined that	

Libby	could	not	establish	a	necessary	element	of	standing	even	if	the	facts	in	his	

affidavit	were	true.

[¶11]		Libby	thereafter	filed	a	motion	for	reconsideration	and	for	relief	

from the judgment.		See	M.R.	Civ.	P.	59(e),	60(b)(1),	(3).		With	this	motion,	Libby	

attached	affidavits	from	the	child’s	maternal	grandparents.		The	grandparents’	

affidavits contradict	many	of	the	statements	in	Estabrook’s	affidavit.1		The	court	

denied	this	motion,	and Libby	timely	appealed.		See	19-A	M.R.S.	§	104 (2020);	

M.R.	App.	P.	2B(c)(1).

 1		The	parties	sharply dispute	whether	the	trial	court	can	rely	on	a	nonparty’s	affidavit	in	deciding	

whether	the	petitioner	has	established	standing and	whether	we	can	rely	on	a	nonparty’s	affidavit	in	

resolving	this	appeal.		We	confine	ourselves	to	the	facts	contained	in	Libby’s and	Estabrook’s	initial

affidavits	 because	 we	 conclude	 that	 the	 court	 should	 have	 convened	 an evidentiary hearing	 to	

determine	standing on	the	basis	of	those	affidavits	alone.

					We	 take	 this	 opportunity	 to	 note	 that	 the	 plain	 language	 of	the	 de	facto	 parentage	 statute

(1) requires	 the petitioner	 and	 any respondent	 each	 to file a	 single affidavit	 and	(2)	 contains	 no	

provision	authorizing third-party	affidavits.	 	 See	19-A	M.R.S.	 § 1891(2)(A)-(B)	 (2020).	 	 That	 said,	

section	1891	does	not require	the parties’	affidavits	to	be	made	on	personal	knowledge.		Compare	id.,

with	M.R.	Civ.	P.	56(e)	(requiring,	in	the	context	of	a	motion	for	summary	judgment,	that	“[s]upporting	

and	opposing	affidavits	 .	 .	 .	be	made	on	personal	 knowledge,	 .	 .	 .	set	 forth	such	 facts	as	would	be	

admissible	 in	 evidence,	 and	 .	 .	 .	 show	 affirmatively	that	 the	 affiant	 is	 competent	 to	 testify	 to	 the	

matters	stated	therein”).		Unlike	a	motion	for	summary	judgment—which,	if	granted,	is	a	substitute	

for	a	trial	on	the	merits—the	affidavits	filed	in	a	de	facto	parentage	case	concern	the	threshold	issue	

of	 standing.	 	 Moreover,	 the	 affidavits	 in	 a	 de	 facto	 parentage	 proceeding	 are	 not	 necessarily	 a	

substitute	 for	 a hearing	 because	 the	 District	 Court	 has	 discretion	 to	 hold	 a	 hearing	 at	which	 the	

parties	 would be	 required	 to prove	 the	 disputed	 facts	 contained	 in	 their	 affidavits	 by	 way	 of	

admissible	evidence.		See 19-A M.R.S.	§ 1891(2)(C) (2020).		Therefore,	it	is	appropriate	for	a	party’s

affidavit	to	include	facts	about	which	third-party	witnesses	may	be	able	to	give	admissible	testimony.
6

II.		DISCUSSION

[¶12]	 	 Title	 19-A	 M.R.S.	 §	 1891	 allows	 a	 person	 to	 establish	 legal	

parentage	of	a	child—and	to	obtain	the	rights	of	a	legal	parent—by	a	judicial	

decree	 acknowledging	 “the	 development	 of	 [a] parental	 relationship	 over	

time.”	 	 Stitham	 v.	 Henderson,	 2001	 ME	 52,	 ¶ 24,	 768	 A.2d	 598	 (Saufley,	 J.,	

concurring);	see 19-A	M.R.S.	§ 1891(4)(B).

[¶13]	 	 “[T]o	 protect	 against	 unwarranted	 intrusions	 into	 an	 intact	

family’s	 life,”	Davis	 v.	 McGuire,	 2018	 ME	 72,	 ¶	 14,	 186	 A.3d	 837	(quotation	

marks	omitted),	a party	who	seeks	to	be adjudicated	a	de	facto	parent	of	a	child	

“must	 make	 an	 initial	 showing	 of	 standing	 that	 will	 determine	 whether	 the	

court	 will	 hold	 a	 plenary	 hearing	 on	 the	 ultimate	 question	 of	 whether	 that	

person	is	a	de facto	parent,”	id. ¶	13.		By	statute,	standing	must	be	addressed	

pursuant	to	the	following	three-step	process:

First,	 the	 claimant	 is	 required	 to	 file	 an	 affidavit	 along	 with	 the	

complaint,	stating	specific	facts	that	track	the	elements	of	a	de facto	

parenthood	claim.	 Next,	 the	adverse	party	may	 file	a	 responsive	

affidavit	along	with	a	responsive	pleading.		Finally,	the	court	is	to	

review	 the	parties’ submissions	 and	 either	[determine]	based	 on	

the	parties’ submissions	whether	 the	claimant	has	demonstrated	

standing,	or,	in	its	sole	discretion,	if	necessary	and	on	an	expedited	

basis,	hold	a	hearing	to	determine	disputed	facts	that	are	necessary	

and	material	to	the	issue	of	standing.
7

Id. ¶	 15 (citations	 omitted)	 (quotation	 marks	 omitted);	 see	 19-A	 M.R.S.	

§ 1891(2).

[¶14]	 	 The	 petitioner	 has	 the	 burden	 of	 establishing	 standing	 by	 a	

preponderance	 of	 the	 evidence,	 regardless	 of	 whether	the	 court	 decides	 the	

issue	 on	 the	 affidavits	 or	 following	 an	 evidentiary hearing.	 	 See	 Davis,	

2018 ME 72, ¶¶	13-26,	186	A.3d	837.		To	prove standing,	the	petitioner	must	

show	the	following:

A. The	person	has	resided	with	the	child	for	a	significant	period of	

time;

B. The	person	has	engaged	in	consistent	caretaking	of	the	child;

C. A	 bonded	 and	 dependent	 relationship	 has	 been	 established	

between	the	child	and	the	person,	the	relationship	was	fostered	or	

supported	by	another	parent	of	 the	child	and	 the	person	and	 the	

other	parent have	understood,	acknowledged	or	accepted	that	or	

behaved	as	though	the	person	is	a	parent	of	the	child;

D. The	person	has	accepted	full	and	permanent	responsibilities	as	

a	parent	of	the	child	without	expectation	of	financial	compensation;	

and

E. The	continuing	relationship	between	the	person	and	the	child	is	

in	the	best	interest	of	the	child.[2]

19-A	M.R.S.	§	1891(2)(C),	(3)(A)-(E).

 2		There	is	an	open	question	“whether	proof	of	the	statutory	elements	alone	is	a	constitutionally	

adequate	foundation	for	a	de	facto	parenthood	determination,	or	whether	a	petitioner	must	prove	

something	more	than	those	statutory	elements	to	make	the	statute	constitutional	as	applied.”		Davis	

v.	McGuire,	2018	ME	72,	¶	15	n.7,	186	A.3d	837.		We	do	not	reach	that	issue	in	this	case.		See	Young	v.	

King,	2019	ME	78,	¶	8	n.2,	208	A.3d	762.
8

[¶15]		When	 the	 trial	court	dismisses	a	de	 facto	parentage	petition for	

lack	of	standing without	holding	an	evidentiary hearing,	we	review	the	court’s	

decision	not	to	hold	a	hearing	for	an	abuse	of	discretion.		See	Young,	2019 ME

78,	¶¶ 11-12,	208 A.3d 762.		The	court	abuses	its	discretion	in declining	to	hold	

a	hearing if	(1)	the	facts	in	the	petitioner’s	affidavit	“could	have	led	to	a	finding	

that	[the	petitioner]	ha[s] standing”	and	(2)	there	are	“material	facts	that	the	

parties	have	disputed	in	their	affidavits.”		Id. ¶	11.

[¶16]		We	conclude	that	Libby’s	assertions,	if	believed,	could	have	led	to	

a	finding	that	he	has	standing.		Most	importantly,	Libby avers that	he	and	the	

mother	essentially	coparented	the	child	for	a	majority	of	the	child’s	life	and	that	

Estabrook’s	 involvement	 with	 the	 child	 was	 “sporadic	 and	 inconsistent” for	

most	of this	time.		If	true,	these attestations could	demonstrate	that	the	mother	

understood	 that	and	behaved	as	 though Libby	occupied the	parental	vacuum	

that	 Libby	 says	 existed because	 of Estabrook’s	 lack	 of	 engagement	 with	 the	

child for	a	significant	period	of	the	child’s	life.		Cf. Kilborn	v.	Carey,	2016	ME	78,	

¶¶	18-21,	140	A.3d	461	(“[T]here	was	ample	evidence	in	the	record	to	support	

the	court’s	finding	that	[the	petitioner’s]	parental	role	was	unequivocal,	despite	
9

[the	 legal	 father’s]	 peripheral	 presence [in	 the	 child’s	 life] and	 objection	 to	

formal	adoption	.	.	.	.”).3

[¶17]		Furthermore,	Libby	avers that	(1)	 the	child	understands	Libby’s	

family	 to	 be	 his	 own	 family	 and	 (2)	 Libby,	 the	 mother,	 and	 the	 child	 have	

participated	 in	 family	 events	 with	 Libby’s	 family	 and	 with	 Libby’s	 National	

Guard	unit.		These	assertions,	if	believed,	also	tend	 to	 show	that	 the	mother	

“understood,	acknowledged	or	accepted	that	or	behaved	as	though”	Libby	was	

a	parent	to	the	child.		19-A	M.R.S.	§ 1891(3)(C);	see	Young,	2019	ME 78,	¶	12,	

208 A.3d	 762	 (explaining	 that	 this element	 of	 standing can	 be	 satisfied	 by	

evidence	 that	 the	 legal	 parent	 “allowed	 others	 in	 the	 community .	 .	 .	 to	

understand	[the	petitioner]	to	be	the	child’s	[parent]”).

[¶18]		Estabrook	sharply	disputes	Libby’s	contentions.		For	example,	he	

contends	 that	(1)	the	child	believes	he	is	part	 of	 Libby’s	 family only	because	

Libby	intentionally	isolated	the	mother and	the	child	from	others,	including	the	

mother’s	family;	(2) the	mother	left	Libby	and	lived in	a	motel	with	the	child

shortly	before	she	died; and	(3) there	was	no	vacant	parental	role	for	Libby	to	

 3		Title	19-A	M.R.S.	§	1891	(2020)	was	not	effective	at	the	time	we	issued	our	opinion	in	Kilborn	v.	

Carey.		See	2016	ME	78,	¶	1	n.1,	140	A.3d	461.		Although	the standard	we	applied	in	Kilborn has	now	

been	superseded	by	section	1891,	we	have	previously	observed	that	this	statute	codifies	the	common	

law	principle	that	a	person	cannot	become	a	de	facto	parent	unless	the	child’s	legal	parent	recognizes	

the	person	as	a	parent.		See	Davis,	2018	ME	72,	¶	31	n.11,	186	A.3d	837.
10

fill	 because	 Estabrook has	 been	 consistently	 involved	 in	 the	 child’s	 life.		

Therefore,	 the	 parties’	 affidavits	 contain	 disputed	 facts	 that	 are	 material	 to	

whether	the	mother	“understood,	acknowledged or	accepted that or	behaved	

as	though” Libby	was	the	child’s	parent.		19-A	M.R.S.	§ 1891(3)(C).

[¶19]		Because	 the	 facts	in	 Libby’s	affidavit,	if	proved, could	support	 a	

finding	 that	 he	 has	 standing	 and	 because	 Estabrook’s	 affidavit	 generates	

disputed material	 facts	 that	must	be	 resolved	 to	determine	 Libby’s	 standing,	

the	 court	went	 beyond	 its	 discretion	 in	 declining	 to	 convene	 an	 evidentiary	

hearing	 to	 resolve	 those factual	 disputes.	 	 Compare Young,	 2019	 ME	 78,	

¶¶ 11-13,	208	A.3d	 762,	with Lamkin	v.	 Lamkin,	2018	ME	76,	 ¶¶ 26-27,	186

A.3d 1276	(affirming	the	dismissal	of	a	petition	for	grandparent	visitation	and	

de	facto	parentage	without	a	hearing	where	the	petitioner	“failed	to	present [in	

her	affidavit] evidence	of	[several	elements	of	standing]”).		We	remand	for	the	

court	 to	 conduct an	 evidentiary	 hearing	 on	 standing.	 If	 Libby	 establishes	

standing,	then	the	court	must	determine,	either at	a	consolidated	or	a	separate	

hearing,	 whether Libby	 has	 proved the	 existence	 of	 a	 de	 facto	 parentage	

relationship	by	clear	and	convincing	evidence.4		See 19-A	M.R.S.	§	1891(2)(D).

 4	 	 As	 we	 noted	 in	 Young,	 2019	 ME	 78,	 ¶	 13	 n.4,	 208	 A.3d	 762,	 the	 court	 may	 consolidate	 a

preliminary hearing	on	standing	with	a	hearing	on	the	merits	“after	consideration	of	(1)	the	relative	

complexity	 of	 the	 factual	 issues	 of	 standing	 and	 de	 facto	 parenthood;	 (2)	 the	 time	 and	 expense	

involved	in	conducting	separate	hearings	on	those	subjects;	and	(3)	the	benefits	and	burdens	upon	
11

[¶20]		Our decision	in	this	case	is	a	narrow	one.		We	have	observed	that	

“parental	rights	disputes	can	be	heavily	factbound,” Young,	2019	ME	78,	¶	13,	

208 A.3d 762,	and	our	decision	is	based	on	the	specific	facts	contained	in	the	

parties’	affidavits.		In	particular,	our	decision	in	this	case cannot	be	read for	the	

proposition	that	any stepparent has	standing	to	petition	for de	facto	parentage

based	 solely	 on	 the	 time	 spent with	 a	 child in	 the	 ordinary	 course	 of that	

person’s marriage	 to	the	child’s	legal	parent.	 Rather,	a stepparent—like	any	

other	 petitioner—has	 the	 burden	 to	 prove	 all	 the	 elements	 of	 standing,	

including	that	a legal	parent of	the	child intended	for	the	stepparent	to	assume	

a	parental	role,	see 19-A	M.R.S.	§ 1891(3)(C).		In	this	case,	Libby	asserts	that	the	

mother	intended	for	Libby	to	fill	the	fatherly role	that Libby	claims Estabrook	

had	vacated by	having	limited	involvement	with	the	child	for	most	of	the	child’s	

life.		This	contention,	combined	with	 Libby’s	other	averments	and	in	light	 of	

 

the	 parties—including	 the	 disruption,	 caused	 by	 the	 de	 facto	 parentage	 proceeding,	 of	 the	 legal	

parent’s	constitutionally	protected	relationship	with	the	child—that	would	be	presented	by	separate	

hearings	as	opposed	to	a	single	hearing	that	addresses	both	subjects.”		(Citation	omitted.)		In	many	

de	facto	parentage	cases,	a	single	hearing	will	be	less	disruptive	to	the	parent-child	relationship	and	

more	efficient	in	terms	of	court	and	party	resources.
12

Estabrook’s	 denial	 of	 these	 facts,	 warranted	 a	 hearing	 to	 determine	 Libby’s	

standing.5

The	entry	is:

Judgment	vacated.		Remanded	for	an	evidentiary	

hearing.

JABAR,	J.,	concurring in	part	and	dissenting	in	part.

[¶21]		I concur	with	the	Court’s	remanding	the	case	to	the	trial	court,	but	

I do	not	agree	that	it	is	necessary	for	the	trial	court	to	conduct	a	hearing	on	the	

issue	 of	 standing. The	 record	 in	 this	 matter	 already	 establishes	 sufficient	

undisputed	 facts	constituting	prima	 facie	evidence of	standing	that allow	 the	

court	to	reach	the	merits.

[¶22]		The	de	facto	parentage	chapter of	the	Maine	Parentage	Act	(MPA),	

19-A	 M.R.S.	 §§	 1831-1939	 (2020),	 sets	 out	 the	 procedure	 that	 a	 court	 must	

follow	when	a	person	seeks	to	be	adjudicated	a	de	facto	parent.	 See 19-A	M.R.S.	

 5		In	his	brief,	Libby	also	argues	 that	the	record	compelled	 the	court	 to	 find,	based	on	the	 facts	

asserted	 in	 his	 affidavit,	 that	 he	 had	 established	 standing	 by	 a	 preponderance	 of	 the evidence.		

Because	“material	facts	are	contested”	in	the	parties’	affidavits,	Young,	2019	ME	78,	¶	13, 208	A.3d	

762;	see	supra ¶¶	16-18,	we	conclude	that	the	record	did	not	compel	a	finding	that	Libby	has	standing.
13

§	1891. The	procedure	begins	with	a	determination	 of	standing	pursuant	 to	

section 1891(2), which	consists	of	a	multi-step	process.6

[¶23]		First, the	claimant	must file	an	affidavit	with	the	complaint	seeking	

de	facto	parentage alleging	under	oath	“specific	facts” that	track	the	elements	

of	a	de	facto	parent	relationship. Id.	§	1891(2)(A).	 Next,	an	adverse	party	may	

file	 a	 response	 to	 the	 putative	 de	 facto	 parent’s	 pleading	 and	 affidavit.	 Id.	

§ 1891(2)(B).	 Then,	pursuant	to	section 1891(2)(C),	the	court	must	review	the	

parties’ submissions	and	determine	whether	the	putative	de	facto	parent	has	

 6		The	Legislature	has	enacted	the	following	process for	a	person	to	establish	standing:

A. A	person	seeking	to	be	adjudicated	a	de	facto	parent	of	a	child	shall	file	with	the	

initial	pleadings	an	affidavit	alleging	under	oath	specific	facts	to	support	the	existence	

of	 a	 de	 facto	 parent	 relationship	with	 the	 child	 as	 set	 forth	 in	 subsection	 3.	 The	

pleadings	and	affidavit	must	be	served	upon	all	parents	and	legal	guardians	of	the	

child	and	any	other	party	to	the	proceeding.

B. An	adverse	party,	parent	or	legal	guardian	who	files	a	pleading	in	response	to	the

pleadings	in	paragraph	A	shall	also	file	an	affidavit	in	response,	serving	all	parties	to	

the	proceeding	with	a	copy.

C. The	 court	 shall	 determine on	 the	 basis	 of	 the	 pleadings	 and	 affidavits	 under	

paragraphs	A and	B	whether	the	person	seeking	to	be	adjudicated	a	de	facto	parent	

has	presented	prima	facie	evidence	of	the	requirements	set	forth	in	subsection	3.	The	

court	may	in	its	sole	discretion,	if	necessary	and	on	an	expedited	basis,	hold	a	hearing	

to	determine	disputed	facts	that	are	necessary	and	material	to	the	issue	of	standing.

D. If	 the	 court’s	 determination	 under	 paragraph	 C	 is	 in	 the	 affirmative,	 the	 party	

claiming	 de	 facto	 parentage	 has	 standing	 to	 proceed	 to	 adjudication	 under	

subsection 3.

19-A	M.R.S.	§	1891(2)	(2020).
14

presented	 prima	 facie	 evidence	 of	 the	 requirements	 set	 forth	 in	 section

1891(3)(A)-(E).

7

[¶24]	 “Prima	 facie	 evidence	 requires	 only	 some	 evidence	 on	 every	

element	 of	 proof	 necessary	 to	 obtain	 the	 desired	 remedy	 [or	 judgment].”

Camden	Nat'l	Bank	v.	Weintraub,	2016	ME	101,	¶	11,	143	A.3d	788 (quotation	

marks	 omitted);	 see	 Cookson	 v.	 State,	 2014	 ME	 24,	 ¶	 16,	 86	 A.3d	 1186.

“[P]rima facie proof	is	a	low	standard	that	does	not	depend	on	the	reliability	or	

the	credibility	of	evidence,	all	of	which	may	be	considered	at	some	later	time	in	

the	process.”	 Weintraub,	2016	ME	101,	¶	11,	143	A.3d	788 (quotation	marks	

omitted).	Thus,	“prima	facie	evidence”to	establish	standing	requires	only	some	

 7		Title	19-A	M.R.S.	§	1891(3)	(2020) sets	forth	the	requirement that

the	 person	 has	 fully	 and	 completely	 undertaken	 a	 permanent,	 unequivocal,	

committed	and	responsible	parental	role	in	the	child’s	life.	 Such	a	finding	requires	a	

determination	by	the	court	that:

A. The	person	has	resided	with	the	child	for	a	significant	period	of	time;

B. The	person	has	engaged	in	consistent	caretaking	of	the	child;

C. A	bonded	and	dependent	relationship	has	been	established	between	the	child	and	

the	person,	the	relationship	was	fostered	or	supported	by	another	parent	of	the	child	

and	the	person	and	the	other	parent	have	understood,	acknowledged	or	accepted	that	

or	behaved	as	though	the	person	is	a	parent	of	the	child;

D. The	person	has	accepted	full	and	permanent	responsibilities	as	a	parent	of	the	child	

without	expectation	of	financial	compensation;	and

E. The	continuing	relationship	between	the	person	and	the	child	is	in	the	best	interest	

of	the	child.
15

evidence	 on	 each element	 of	 proof	 necessary	 to support	 the	 existence	 of	 a	

de facto	parent	relationship	with	the	child	as	set	forth	in	section 1891(3).

[¶25]	 	 If	 the	 presented	 evidence	 is	 uncontested,	 then the	 court	 must	

accept	the	evidence	as	true	and	determine	whether	the	uncontested	evidence	

constitutes	prima	 facie	evidence	of	 the	statutory	elements	laid	out	in	section	

1891(3)	of	the	MPA.	 See 19-A	M.R.S.	§	1891(2)(C);	see	also Weintraub,	2016	ME	

101,	 ¶¶ 11-17,	 143	 A.3d	 788;	 Nader	 v.	 Me.	 Democratic	 Party,	 2012	 ME	 57,	

¶¶ 33-35,	41	A.3d	551. If	there	are	competing	affidavits,	then	the	court	must	

determine	whether	there	are	undisputed	facts	contained	within	the	competing	

affidavits	that	constitute	prima	facie	evidence	of	the	required	elements	under	

section 1891(3).	 See 19-A	M.R.S.	§	1891(2)(C).		Where	the	undisputed	facts	are	

sufficient	 to	constitute	prima	 facie	evidence,	it	will	be	unnecessary	 to	hold	a	

hearing	 to	consider	 the	disputed	 facts	 that	are	necessary	and	material	 to	 the	

issue	of	standing.	 See	id.

[¶26]		Although	the	parties’ affidavits	do	contain	disputed	facts,	they	also	

contain	many	undisputed	facts	concerning	the	relationship	between	Libby and	

the	child. The	undisputed	facts	establish	the	following	narrative.

[¶27]	 	 Libby	 began	 living	 with	 child and	 his	 mother in	 October	 2012,	

when	 the	 child was	 three years	 old.	 	 Except	 for	 Libby’s deployment	 to	
16

Afghanistan	from	August	2013	until July	2014,	Libby,	the	child,	and	the	child’s	

mother continued	 to	live	 together	 as	a	 family	unit	until	2019. In	September	

2014, Libby	and	the	child’s	mother	purchased	their	first	home together. During	

the	years	that	they	lived	together, Libby	was	responsible	for	at	least	half	of the	

child’s	daycare pick-ups	and	drop-offs.		Libby	was	responsible	for	waking	the	

child in	the	morning,	getting	him	dressed,	and	getting	him	to	daycare. When	

the	child entered	primary	school,	Libby	was	actively	involved	in	his	schooling	

and	 participated	 in	 school	 events,	 including	 meet-and-greet	 events at	 the	

elementary	school.

[¶28]	 	 Libby	 brought	 the	 child to	 his	 soccer,	 baseball, and	 basketball	

practices	and	games,	and	he	would	practice	with	the	child in their	backyard.

During	holidays, the	child celebrated	with	Libby’s	family	and	referred	to	Libby’s	

mother	and	father	as	“Grandma” and	“Pop-Pop.”	He would	call	Libby’s	brothers	

and	their	wives	his “uncles” and	“aunts”	and	considered	their	children	to	be	his	

cousins. He attended	day camps	with	those cousins and	Libby’s	mother. He

would	regularly	attend	Sunday	dinners	at	Libby’s	parents’ home.

[¶29]		Libby	continues	to	carry the	child on	his	health	insurance	plan,	as

he	has	done since	he	began	working	at Bath	 Iron	Works in	2015. The	child

attended	all	Family	Days held	by	Libby’s	National	Guard	unit	with	his	mother	
17

and	Libby.		Ever	since	the	child was	three	years	old, Libby	has	accepted	full	and	

permanent	 responsibility	as	a	parent	 of	the	child without	any	expectation	 of	

financial	compensation.	 The	child	considers	Libby	to	be	one	of	his	parents.

[¶30] Notwithstanding	 the	 presence	 of	 disputed	 facts,	 the	 above	

narrative	of	undisputed	facts	constitutes sufficient	prima	facie	evidence	of	all	

of	the	elements	contained	in	section 1891(3). It	is	undisputed	that	Libby,	the	

child,	and	the	child’s	mother	lived	together	as	a	family	for	the	majority	of	the	

child’s	 life	 and	 that Libby	 consistently	 cared	 for	 the	 child	 during	 that	 time.		

There	is	no	dispute	that	a	bonded	and	dependent	relationship	existed	between	

Libby	 and	 the	 child.	 	 That	 relationship	 was	 fostered	 and	 supported	 by	 the	

child’s	mother,	who	“understood,	acknowledged	or	accepted	that	or	behaved	as	

though	[Libby]	is	a	parent	of	the	child,”	19-A	M.R.S.	§	1891(3)(C),	as	evidenced	

by	the	undisputed	facts	that	Libby	carried	the	child	on	his	health	insurance; the	

child	attended	all	family	days	at	Libby’s	work; the	child	was	included	in	Libby’s	

family	Christmas	card	photo; and	the	child	referred	to	Libby’s	family	members	

as	his	own	grandparents,	aunts,	uncles,	and	cousins. It	is	also	undisputed	that	

the	child	considers	Libby	to	be	one	of	his	parents. For	these	reasons,	Libby has	

presented	 prima	 facie	 evidence	 to	 establish	 standing	 to	 bring	 a	 de facto	

parentage	claim.
18

[¶31]	 	 Standing	 is	 a	 preliminary	 hurdle	 that	 putative	 de	 facto	 parents	

must	overcome	to	get	their	day	in	court. Under	the	statute,	a	finding	of	standing	

in	no	way	establishes	those	elements;	it	is	simply	a	procedural	mechanism to	

ensure	 that	 only	 legitimate	 cases	 of	 de	 facto	 parenthood	 proceed.	 See	

19-A M.R.S.	 § 1891.	 	 After	 satisfying	 the	 standing	 requirement,	 the	 putative	

de facto	parent	still	has	the	burden	to prove, by	clear	and	convincing	evidence,

the	necessary	elements	under	section 1891(3).

[¶32]	 	 At	 this	 juncture	 of	 the	 case,	 the	 undisputed	 facts	 present	 a	

prima facie claim	of	de	facto	parentage.	 There	is	no	need	for	a	hearing	on	this	

preliminary	 matter.	 I would	 remand	 for	 a	 hearing	 on	 the	 merits	 of	 Libby’s	

petition	for	de	facto	parentage.	 See	19-A	M.R.S.	§	1891(3)-(4).

Sarah	 C.	 Mitchell,	 Esq.,	 and	 Amy	 Dieterich,	 Esq.,	 Skelton	 Taintor	 &	 Abbott,	

Auburn,	for	appellant	Timothy	R.	Libby

Kim	Pittman,	Esq.,	and	Suzanne	E.	Thompson,	Esq.,	Vincent,	Kantz,	Pittman	&	

Thompson,	LLC,	Portland,	for	appellee	Kyle	Estabrook

Portland	District	Court	docket	number	FM-2019-395

FOR	CLERK	REFERENCE	ONLY