Maryland’s Highest Court Establishes ‘De Facto Parenthood’ in Lesbian Divorce and Custody Case

By Jeannette Richard | July 12, 2016 | 12:28pm EDT
Maryland Court of Appeals Judge Sally Adkins. (State of Maryland)

( -- Maryland’s highest court ruled last week that a lesbian woman now identifying as a transgender man has parental standing to sue for visitation rights to a child her lesbian ex-spouse conceived by artificial insemination before they were legally married.

The court overturned its own 2008 decision that recognizing “de facto parents” violated the rights of biological or adoptive parents to govern the custody of their children.

The plaintiff, Michelle Conover (who now goes by Michael), is neither biologically related to Jaxon Conover, the biological son of her ex-spouse, Brittany Conover, nor did she ever legally adopt him during her relationship with the boy’s mother, according to court documents.

But the Maryland Court of Appeals ruled on July 7 that Michelle Conover should nonetheless be recognized as a de facto parent, overturning the decision of two lower courts as well as its own 2008 ruling that was used as a precedent in their decisions.

“Gays and lesbians are particularly 'ill-served by rigid definitions of parenthood'...When gay or lesbian relationships end, at least one member will find itself in a court system ill-prepared to recognize its existence and to formulate rules to resolve its disputes,” Judge Sally Adkins wrote in the majority opinion, in which three of the other six judges on the court concurred.

In the decision, the court established de facto parenthood for a person who formed a “parent-like” relationship with the child that “the biological or adoptive parent consented to and fostered,” provided that “the petitioner and the child lived together in the same household, 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 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.”

Prior to their marriage, Michelle Conover and Brittany Conover decided to have a child, so Brittany conceived a child by artificial insemination. Jaxon Conover was born in 2010, and Brittany was the only parent listed on the birth certificate. The couple was legally married six months later in the District of Columbia, but separated in 2011.

After they split, Brittany Conover prevented Michelle Conover from visiting Jaxon, claiming in divorce paperwork that the couple had no children together, court documents stated.

Michelle/Michael filed a court request for visitation rights claiming that she had standing as a parent under Maryland’s definition of “father” for children of unmarried parents. Michelle still identified as a woman at that time.

In 2013, the circuit court ruled that “[Michelle] is in fact a female, had not adopted the child, and in no way was related to the child, thus not sufficiently establishing that she could be the ‘father’ of the child.”

The lower court ruled that Michelle did not have parental standing, but as a third party, must first show that Brittany was an unfit parent or that exceptional circumstances existed in order to claim visitation rights.

The circuit court cited Janice M. v. Margaret K., a 2008 court decision by the Maryland Court of Appeals about the child of another same-sex couple, which held that de facto parenthood is not recognized in Maryland since it violates the due process clause of the Fourteenth Amendment, which “protects the rights of parents to direct and govern the care, custody, and control of their children.”

In 2015, the Maryland Court of Special Appeals upheld the circuit court’s ruling, but the Court of Appeals - Maryland's highest court - reversed the ruling of the lower courts and the precedent case, holding that Michelle Conover does have parental standing as a de facto parent.

“The de facto parent doctrine does not contravene the principle that legal parents have a fundamental right to direct and govern the care, custody, and control of their children 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,” Judge Adkins wrote.

Adkins also noted that “the passage of time and evolving events have rendered Janice M. obsolete,” pointing to Maryland’s recognition of same-sex marriage in 2012  as illustrating “the greater acceptance of gays and lesbians in the family unit in society.”

“We hold that de facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis,” Adkins concluded.

Judge Shirley Watts concurred with Adkins’ opinion establishing de facto parenthood, but in her own opinion expressed her concern that the definition of de facto parent was too broad since it required only one biological or adoptive parent to consent to the formation of the parent-like relationship.

Under this definition, a child could end up with a third parent without one of the original parent’s knowledge and consent, which “may result in a child having three parents vying for custody and visitation, and being overburdened by the demands of multiple parents,” Watts wrote.

“The Majority has written broadly a solution for de facto parents that will serve couples well under circumstances similar to the parties in this case, where there is only one biological or adoptive parent. The majority opinion, however, will have greater consequences in cases for children with two existing parents because a de facto parent request may occur without the knowledge or consent of the second existing parent,” she warned.

“Children who already have difficulty with visitation schedules, or experience custody issues pertaining to two parents, will not be served well by the creation of a test that does not account for the second existing parent’s knowledge and consent,” Watts said.

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