MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	14	
Docket:	      Kno-16-209	
Submitted	
  On	Briefs:	 November	29,	2016	
Decided:	     January	19,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                TAMMY	J.	THORNDIKE	
                                          	
                                         v.	
                                          	
                                 JESSICA	ANN	LISIO	
	
SAUFLEY,	C.J.	

       [¶1]	 	 Jessica	 Ann	 Lisio	 appeals	 from	 a	 judgment	 of	 the	 District	 Court	

(Rockland,	Raimondi,	J.)	finding	that	Tammy	J.	Thorndike	is	a	de	facto	parent	

of	 two	 of	 Lisio’s	 biological	 children.	 	 We	 discern	 no	 error	 in	 the	 court’s	

determinations	 that	 Thorndike	 “has	 undertaken	 a	 permanent,	 unequivocal,	

committed,	and	responsible	parental	role	in	[each]	child’s	life,”	and	that	“there	

are	 exceptional	 circumstances	 sufficient	 to	 allow	 the	 court	 to	 interfere	 with”	

the	 biological	 parents’	 parental	 rights.	 	 Pitts	 v.	 Moore,	 2014	 ME	 59,	 ¶	 27,	 90	

A.3d	1169	(quotation	marks	omitted).		Accordingly,	we	affirm	the	judgment.	

                                    I.		BACKGROUND	

	      [¶2]		The	facts	are	drawn	from	the	procedural	record	of	the	case	and	the	

court’s	supported	findings	of	fact.		See	Kilborn	v.	Carey,	2016	ME	78,	¶	3,	140	
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A.3d	461.		Lisio	and	Thorndike,	who	lives	as	a	man,	met	in	2005	when	Lisio’s	

son,	 Caden,	 was	 one	 year	 old.	 	 They	 began	 living	 together	 in	 Bath	 in	 August	

2007.		Thorndike	was	not	working	at	the	time	because	he	had	suffered	a	back	

injury.		Lisio	was	working	as	a	newspaper	carrier.		Thorndike	cared	for	Caden	

while	Lisio	was	working.		He	got	the	child	ready	in	the	morning,	delivered	him	

to	and	from	preschool,	bathed	him,	read	to	him,	played	with	him,	took	him	to	

medical	appointments,	and	acted	in	all	ways	as	a	loving	father	to	Caden.			

	     [¶3]	 	 Thorndike	 and	 Lisio	 decided	 to	 have	 a	 child	 together	 in	 2007	 or	

2008.		Lisio	arranged	to	be	artificially	inseminated,	and	she	became	pregnant	

with	 Arianna.	 	 She	 and	 Thorndike	 registered	 as	 domestic	 partners	 in	 early	

2009,	during	the	pregnancy.		Arianna	was	born	on	May	11,	2009.			

	     [¶4]	 	 Lisio	 returned	 to	 work	 about	 one	 week	 after	 Arianna	 was	 born.		

She	 began	 working	 as	 a	 certified	 nursing	 assistant	 and	 also	 maintained	 her	

paper	 route.	 	 Thorndike	 was	 a	 stay-at-home	 parent	 who	 did	 all	 the	 things	 a	

parent	 does—changing	 diapers,	 making	 bottles,	 being	 up	 at	 night	 with	 the	

baby,	 and	 continuing	 to	 take	 care	 of	 Caden.	 	 Thorndike	 also	 took	 care	 of	

housekeeping	chores	and	attended	Arianna’s	doctor	appointments	with	Lisio.		

At	 those	 appointments,	 Thorndike	 presented	 himself	 as	 Arianna’s	 father.		
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Lisio,	Thorndike,	and	the	two	children	did	things	together	and	functioned	as	a	

loving	family.			

	     [¶5]		When	Arianna	was	eight	or	nine	months	old,	Thorndike	and	Lisio	

began	 having	 problems	 in	 their	 relationship.	 	 Lisio	 had	 a	 brief	 affair	 with	

another	 person,	 though	 the	 parties	 remained	 together	 and	 maintained	 the	

same	 parental	 roles.	 	 The	 couple	 decided	 to	 move	 to	 Wiscasset	 and	 make	 a	

fresh	start.		Thorndike	began	to	work	at	a	Rockland	restaurant	during	the	day,	

and	Lisio,	who	had	stopped	delivering	newspapers,	worked	as	a	CNA	at	night.	

Each	 of	 them	 cared	 for	 the	 children	 while	 the	 other	 was	 at	 work.	 	 The	

relationship	 continued	 to	 deteriorate,	 however,	 and	 Thorndike	 began	 a	

relationship	with	someone	else	and	moved	out	in	2012.			

	     [¶6]	 	 After	 moving	 out,	 Thorndike	 continued	 to	 call	 the	 children	 every	

day	before	bedtime,	and	the	children	visited	him,	though	the	parties	disagree	

about	how	frequently.		By	the	end	of	2012,	Lisio	had	a	new	boyfriend,	Joshua	

Cote.	 	 Cote	 was	 working	 for	 a	 carnival	 and	 traveled	 seasonally	 in	 New	

England.		Lisio	would	bring	the	children	and	stay	with	him	during	weekends.	

After	 Cote	 found	 out	 that	 Thorndike	 was	 transgender,	 Cote	 demanded	 that	

Thorndike	 pay	 child	 support	 if	 he	 wanted	 to	 see	 the	 children.	 	 Thorndike	

made	some	payments	but	did	not	pay	regular	child	support.			
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	      [¶7]		During	the	last	week	of	June	2014,	while	the	children	were	visiting	

Thorndike	for	the	weekend,	Caden	revealed	to	Thorndike	that	Cote	had	been	

hitting	him,	and	Caden	had	bruises.		Caden	said	that	Lisio	had	said	not	to	tell.		

	      [¶8]	 	 Thorndike	 called	 his	 sister	 and	 organized	 a	 meeting	 with	 his	

parents	and	Lisio’s	parents.		At	the	end	of	the	weekend,	the	children	went	to	

stay	 with	 Lisio’s	 parents,	 consistent	 with	 Caden’s	 wishes,	 and	 a	 report	 was	

made	 to	 the	 Department	 of	 Health	 and	 Human	 Services.	 	 The	 Department	

substantiated	the	report	and	opened	an	investigation.		The	children	remained	

with	Lisio’s	parents	until	the	end	of	2014.			

	      [¶9]		Lisio	was	very	angry	with	Thorndike	for	his	role	in	reporting	the	

abuse	 instead	 of	 talking	 to	 her	 about	 it.	 	 Lisio	 refused	 to	 allow	 any	 contact,	

even	 by	 phone,	 between	 Thorndike	 and	 the	 children	 after	 June	 2014,	 taking	

the	 position	 that	 Thorndike	 had	 no	 rights.	 	 Thorndike	 was	 able	 to	 get	 some	

clothes	to	the	children	through	Lisio’s	mother,	but	that	was	the	full	extent	of	

his	 contact	 with	 the	 children	 until	 the	 court	 entered	 a	 judgment	 requiring	

contact	in	2016.	

	      [¶10]	 	 On	 September	 17,	 2014,	 Thorndike	 filed	 a	 complaint	 for	 a	

determination	 of	 paternity	 and	 parental	 rights	 and	 responsibilities.	 	 Lisio	

opposed	 the	 complaint,	 arguing	 that	 Thorndike	 had	 no	 parental	 rights.	 	 The	
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court	 (Mathews,	 M.)	 entered	 a	 case	 management	 order	 in	 November	 2014	

directing	that	a	de	facto	parentage	action	complying	with	the	requirements	of	

Pitts,	2014	ME	59,	¶	35,	90	A.3d	1169,	must	be	filed	and	the	complaint	served	

on	Caden’s	biological	father.		In	January	2015,	Thorndike	moved	to	amend	his	

complaint	to	allege	de	facto	parenthood	and	submitted	an	affidavit.		See	id.	

	       [¶11]		The	next	month,	the	court	(Sparaco,	J.)	entered	an	order	finding	

that	 Caden’s	 biological	 father	 had	 not	 yet	 been	 served	 and	 directing	 the	

biological	parents	to	submit	affidavits	within	twenty	days	after	the	biological	

father’s	service.		Due	to	issues	of	service	on	Caden’s	biological	father,	the	court	

proceeded	 to	 address	 Thorndike’s	 standing	 in	 October	 2015	 without	 service	

having	been	completed.		See	id.		The	court	found	that	Thorndike	had	made	a	

prima	facie	showing	of	de	facto	parenthood	and	therefore	had	standing.		See	

id.		

	       [¶12]	 	 Mediation	 was	 scheduled,	 and	 Caden’s	 biological	 father	 was	

served	in	Arkansas,	where	he	is	incarcerated.		Caden’s	biological	father	filed	a	

letter	with	the	court	in	January	2016	opposing	Thorndike’s	claim	of	de	facto	

parenthood.			

	       [¶13]	 	 After	 mediation,	 issues	 of	 de	 facto	 parenthood	 and	 the	 parties’	

parental	 rights	 and	 responsibilities	 remained	 in	 dispute.	 	 The	 court	
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(Raimondi,	J.)	held	an	evidentiary	hearing	on	March	10,	2016.		The	court	heard	

testimony	from	Thorndike	and	his	sister,	and	from	Lisio	and	Cote.		The	court	

found,	by	clear	and	convincing	evidence,	that	Thorndike	was	a	de	facto	parent.		

See	 id.	 ¶	36.	 	 The	 court	 entered	 a	 parental	 rights	 and	 responsibilities	 order	

that	 provided	 for	 the	 children’s	 primary	 residence	 to	 be	 with	 Lisio,	 for	 the	

parties	to	share	parental	rights	and	responsibilities,	for	each	party	to	refrain	

from	doing	anything	to	estrange	the	children	from	the	other	party,	and	for	the	

children	 to	 have	 contact	 with	 Thorndike	 on	 a	 gradually	 increasing	 schedule	

that	would	ultimately	place	the	children	in	his	care	every	other	weekend	and	

one	evening	every	other	week.		See	id.	¶	37.	

	      [¶14]	 	 On	 April	 20,	 2016,	 Thorndike	 filed	 a	 motion	 to	 correct	 the	

findings	 of	 fact	 with	 respect	 to	 the	 court’s	 reference	 to	 a	 witness	 as	 Lisio’s	

sister	when	she	is	actually	Thorndike’s	sister.		M.R.	Civ.	P.	52(b),	60(a).		On	the	

same	day,	Lisio	filed	her	timely	notice	of	appeal.			

	      [¶15]		After	briefs	had	been	filed	in	this	appeal,	we	directed	the	court	to	

act	 on	 Thorndike’s	 motion	 to	 correct.	 	 The	 court	 granted	 the	 motion	 and	

corrected	 the	 judgment	 to	 properly	 identify	 the	 testifying	 witness	 as	

Thorndike’s	 sister.	 	 Although	 the	 parties	 were	 afforded	 the	 opportunity	 to	

request	 additional	 briefing	 after	 the	 ruling	 on	 the	 motion	 to	 correct,	 neither	
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party	 made	 such	 a	 request.	 	 The	 judgment	 remained	 otherwise	 unchanged,	

and	we	now	consider	Lisio’s	appeal.	

                                     II.		DISCUSSION	

	       [¶16]	 	 The	 process	 employed	 in	 this	 case	 was	 consistent	 with	 the	

procedures	that	we	outlined	in	Pitts,	and	neither	party	argues	that	there	was	

any	procedural	defect.		See	Pitts,	2014	ME	59,	¶¶	34-38,	90	A.3d	1169.		Lisio	

argues	 only	 that	 the	 court	 erred	 in	 its	 factual	 findings	 and	 that	 there	 is	

insufficient	 credible	 evidence	 to	 support	 the	 court’s	 determination	 of	

Thorndike’s	 de	 facto	 parenthood.	 	 To	 review	 the	 court’s	 decision,	 we	

(A)	summarize	 the	 law	 of	 de	 facto	 parenthood	 and	 (B)	 review	 the	 court’s	

findings	in	this	case.	

A.	     Law	of	De	Facto	Parenthood	

    	   [¶17]	 	 The	 Maine	 Parentage	 Act	 did	 not	 take	 effect	 until	 July	 1,	 2016,	

after	 the	 court	 had	 already	 held	 a	 hearing	 and	 entered	 its	 judgment	 in	 this	

matter.		See	P.L.	2015,	ch.	296,	§§	A-1,	D-1	(effective	July	1,	2016)	(codified	at	

19-A	M.R.S.	§§	1831-1939	(2016)).		Thus,	the	trial	court	relied	on	the	case	law	

in	 effect	 at	 the	 time	 of	 the	 hearing	 and	 decision,	 which	 required	 a	 person	

seeking	 to	 establish	 de	 facto	 parenthood	 to	 show,	 by	 clear	 and	 convincing	

evidence,	 that	 “(1)	 ‘he	 or	 she	 has	 undertaken	 a	 permanent,	 unequivocal,	
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committed,	and	responsible	parental	role	in	the	child’s	life,’	and	(2)	‘there	are	

exceptional	 circumstances	 sufficient	 to	 allow	 the	 court	 to	 interfere	 with	 the	

legal	or	adoptive	parent’s	rights.’”		C.L.	v.	L.L.,	2015	ME	131,	¶	20,	125	A.3d	350	

(quoting	 Pitts,	 2014	 ME	 59,	 ¶	 27,	 90	 A.3d	 1169).	 	 “We	 review	 the	 court’s	

findings	 of	 fact	 for	 clear	 error	 and	 its	 conclusions	 of	 law	 de	 novo.”	 	 Kilborn,	

2016	ME	78,	¶	16,	140	A.3d	461.	

	      [¶18]		To	satisfy	the	first	element	for	establishing	de	facto	parenthood,	a	

person	 must	 have	 “participated	 in	 the	 child’s	 life	 as	 a	 member	 of	 the	 child’s	

family	.	.	.	reside[d]	with	the	child	and,	with	the	consent	and	encouragement	of	

the	legal	parent,	perform[ed]	a	share	of	caretaking	functions.”		Pitts,	2014	ME	

59,	¶	28,	90	A.3d	1169	(quotation	marks	omitted).		“Only	by	establishing	that	

he	 or	 she	 provided	 some	 actual	 caretaking	 functions	 can	 a	 petitioner	 be	

successful.”	 	 Id.	 	 The	 evidence	 must	 show	 “the	 intent	 of	 the	 legal	 parent	 and	

the	putative	de	facto	parent	to	co-parent,	as	measured	before	the	dissolution	

of	their	relationship,	or	the	intent	of	the	legal	parent	that	the	non-parent	act	as	

parent	in	place	of	the	legal	parent.”		Id.	

	      [¶19]		To	satisfy	the	second	element,	exceptional	circumstances	must	be	

established	 by	 showing	 that	 “‘the	 child’s	 life	 would	 be	 substantially	 and	

negatively	 affected	 if	 the	 person	 who	 has	 undertaken	 a	 permanent,	
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unequivocal,	 committed,	 and	 responsible	 parental	 role	 in	 that	 child’s	 life	 is	

removed	from	that	role.’”		Kilborn,	2016	ME	78,	¶	22,	140	A.3d	461	(quoting	

Pitts,	2014	ME	59,	¶	29,	90	A.3d	1169	(plurality	opinion)).	

B.	      Review	of	Court	Findings	

	        [¶20]		Although	there	were	a	few	minor	errors	in	the	court’s	extensive	

factual	findings,1	the	errors	are	not	of	the	kind	that	could	affect	the	outcome	

and	 are	 harmless.	 	 See	 M.R.	 Civ.	 P.	 61.	 	 The	 court’s	 error	 in	 finding	 that	 the	

parties’	 relationship	 began	 earlier	 than	 the	 parties	 testified	 that	 it	 did	 may	

seem	 significant,	 but	 the	 court	 found	 that	 Thorndike’s	 parental	 role	 did	 not	

begin	until	August	2007	when	Thorndike	began	to	live	with	Lisio	and	Caden,	

and	that	date	is	not	in	dispute.			

	        [¶21]		The	other	findings	that	Lisio	disputes	were	not	clearly	erroneous.		

Specifically,	 there	 is	 no	 evidence	 in	 the	 record	 that	 Caden’s	 biological	 father,	

as	Lisio	now	states,	resided	with	Lisio	and	Caden	until	Caden	was	two	years	

old;	 there	 is	 evidence	 that	 Thorndike	 did	 not	 move	 out	 of	 the	 home	 until	

mid-2012;	the	evidence	shows	only	Lisio’s	engagement	to	Cote,	not	any	legal	

commitment;	 and	 even	 if	 Lisio	 is	 correct	 that	 the	 children	 have	 been	 doing	


    1	 	 As	 Thorndike	 concedes,	 the	 court	 erred	 in	 finding	 that	 Lisio	 received	 her	 certified	 nursing	

assistant	 certificate	 in	 2007	 and	 in	 stating	 the	 year	 of	 Lisio’s	 affair.	 	 The	 court	 also	 erroneously	
found	that	the	parties’	relationship	began	immediately	when	they	met	in	2005.	
10	

well	with	Lisio	and	Cote	since	the	Department’s	involvement,	the	court	did	not	

err	in	finding	that	Lisio	failed	to	acknowledge	the	harm	done	to	the	children	

by	denying	Thorndike	contact	after	he	acted	to	keep	Caden	safe	from	abuse.	

	     [¶22]	 	 The	 court’s	 findings	 of	 fact	 support	 its	 ultimate	 determinations	

that	 (1)	Thorndike	 undertook	 “a	 permanent,	 unequivocal,	 committed,	 and	

responsible	parental	role”	in	the	children’s	lives,	Pitts,	2014	ME	59,	¶	27,	90	

A.3d	1169	(quotation	marks	omitted),	and	(2)	especially	given	that	Thorndike	

worked	 with	 extended	 family	 to	 prevent	 child	 abuse,	 the	 children’s	 lives	

“would	 be	 substantially	 and	 negatively	 affected”	 if	 Thorndike	 were	 removed	

from	his	“permanent,	unequivocal,	committed,	and	responsible	parental	role,”	

Kilborn,	2016	ME	78,	¶	22,	140	A.3d	461	(quotation	marks	omitted).	

	     [¶23]	 	 As	 the	 court	 found,	 Thorndike	 and	 Lisio	 raised	 Caden	 together	

from	 age	 three,	 became	 domestic	 partners,	 and	 had	 Arianna	 together	 as	 a	

couple.	 	 Thorndike,	 with	 Lisio’s	 consent	 and	 encouragement,	 undertook	 “a	

permanent,	 unequivocal,	 committed,	 and	 responsible	 parental	 role”	 in	 the	

children’s	lives,	attending	to	their	daily	needs	and	caring	for	them	as	a	loving	

parent.		Pitts,	2014	ME	59,	¶	27,	90	A.3d	1169	(quotation	marks	omitted).		He	

resided	 with	 them	 until	 2012	 and	 after	 that	 cared	 for	 them	 at	 visits	 and	

demonstrated	 a	 willingness	 to	 act	 decisively	 when	 necessary	 to	 protect	 the	
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children	from	harm.		See	id.		The	court	did	not	err	in	finding	that	the	children’s	

lives	 “would	 be	 substantially	 and	 negatively	 affected”	 if	 Thorndike	 were	

removed	 from	 his	 parental	 role.	 	 Kilborn,	 2016	 ME	 78,	 ¶	 22,	 140	 A.3d	 461	

(quotation	marks	omitted).		

	        [¶24]	 	 The	 court	 did	 not	 err	 in	 finding	 that	 both	 elements	 set	 forth	 in	

Pitts	 were	 established	 by	 clear	 and	 convincing	 evidence.	 	 See	 id.;	 Pitts,	 2014	

ME	59,	¶¶	27-29,	90	A.3d	1169.		Accordingly,	we	affirm	the	court’s	finding	that	

Thorndike	is	the	de	facto	parent	of	Caden	and	Arianna.	

         The	entry	is:	

                              Judgment	affirmed.	
	
	     	     	      	     	     	
	
Jessica	Ann	Lisio,	appellant	pro	se	
	
Timothy	 J.	 Kimpton,	 Esq.,	 Gallagher,	 Villeneuve	 and	 DeGeer,	 PLLC,	
Damariscotta,	for	appellee	Tammy	J.	Thorndike	
	
	
Rockland	District	Court	docket	number	FM-2014-200	
FOR	CLERK’S	REFERENCE	ONLY	
