Overruling a 2008 precedent and reversing lower court decisions in this case, the Court of Appeals of Maryland, that state’s highest court, ruled on July 7 that the same-sex spouse of a birth mother, who gave birth to their child shortly before they were married, has standing as a “de facto parent” to pursue custody and visitation in the context of their present divorce proceeding, even though she never adopted the child. Conover v. Conover, 2016 WL 3633062. The co-parent will not be required to show that the birth mother is unfit or that the co-parent can prove “exceptional circumstances” justify departing from the general rule that unrelated “third parties” do not have standing to seek custody of children. The court found that the decision it overturned, Janice M. v. Margaret K., 404 Md. 661 (2008), was based on a faulty reading by the court of the Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57 (2000) that failed adequately to perceive the narrow scope of that ruling and had also relied improperly on distinguishable earlier Maryland cases. Furthermore, the court characterized Janice M. as an archaic precedent that was out of step with the trend of decisions in other states. (Ironically, on July 7 the Michigan Court of Appeals issued a ruling on the exact same issue, taking the opposite position, see below.) Judge Sally D. Adkins wrote the court’s opinion, which had the support of four judges. There were concurring opinions by three judges suggesting slightly different tests, but all ultimately ruling in favor of the co-parent’s right as a “de facto” parent to obtain custody and/or visitation depending upon the trial court’s determination of the best interest of the child.
“Child custody and visitation decisions are among the most serious and complex decisions a court must make,” wrote Judge Adkins,” with grave implications for all parties. The dissolution of a non-traditional marriage just compounds the difficulties of this already challenging inquiry.” Michelle and Brittany Conover’s relationship began in July 2002. They decided together that Brittany would conceived with anonymous donor sperm obtained through Shady Grove Fertility Clinic, and she became pregnant in 2009, giving birth to their son in April 2010. The birth certificate listed only one parent: Brittany. The space for a father was left blank. When their son was about six months old, they married in the District of Columbia. Maryland at that time recognized same-sex marriages contracted in D.C. but did not issue marriage licenses to same-sex couples. After a year of marriage the women separated. Brittany allowed Michelle overnight and weekend access to their son until July 2012, when she prevented further contact, and she filed a formal divorce action in February 2013 in the Circuit Court in Hagerstown. Her divorce complaint stated that there were no children of the marriage. Michelle filed an answer seeking visitation rights with their son, and subsequently counter-complained for divorce, against requesting visitation rights (but not custody). Brittany opposed custody, arguing that Michelle was not related to the boy and thus lacked standing under Maryland law.
Michelle asked the court to interpret Maryland’s statute governing custody disputes involving children “born to parents who have not participated in a marriage ceremony with each other” to place her in the same position as a father. The statute allows a father in such circumstances to assert parental rights if four tests are met: a judicial determination of paternity, the father’s acknowledgement in writing that he is the father, the father has “openly and notoriously recognized the child to be his child; or has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.” Michelle took the position that she satisfied at least three of these tests, most pertinently the last, so she should be deemed a parent. The lower courts determined, however, that Michelle lacked standing. Since the son was conceived and born before they married, no presumption applied that Michelle, as the spouse of Brittany, was the boy’s parent, and the court found that the statute Michelle was relying upon could not be construed in gender-neutral terms. The courts also rejected Michelle’s argument that she should be deemed a “de facto” parent, relying on the precedent of Janice M. holding that Maryland did not recognize that doctrine. The court granted the divorce but denied Michelle’s request for visitation based solely on lack of standing. Thus, the trial court never determined whether ordering visitation would be in the best in interest of the child. The intermediate appellate court affirmed, and the Court of Appeals granted Michelle’s petition for certiorari. The court’s opinion answers affirmatively the first question posed in Michelle’s petition: “Should Maryland reconsider Janice M. v. Margaret K. and recognize the doctrine of de facto parenthood?”
Ultimately, the logic of the court’s decision was derived from its conclusion that “the primary goal of access determinations in Maryland is to serve the best interests of the child.” This must be done while respecting the constitutional right of a fit parent to have custody and to control the raising of her child, where it is claimed that a “non-parent” should be entitled to access to the child. Courts in other states have used a variety of legal theories when confronted with unmarried same-sex couples terminating their relationships and battling over access to the children they were raising. One doctrine that has emerged and achieved wide acceptance – the de facto parent doctrine — was first adopted by the Wisconsin Supreme Court in In re Custody of H.S.H.-K., 533 N.W.2 419 (1995). This doctrine poses a four-part test: “the legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged.” In other words, in order to be a de facto parent, somebody must be a parent in all practical respects as a result of a relationship supported by the child’s legal parent. (In a concurring opinion in Conover, Judge Shirley Watts would modify this test in cases where the child has two known legal parents to require that the relationship of the third party have been fostered with the consent of both of them; her reservations were not essential to deciding this case, because the son was conceived through anonymous donated sperm.)
The Maryland Court of Appeals concluded that this de facto parent doctrine should be adopted to determine whether an unmarried partner of a birth parent should be able to seek custody and/or visitation in the event of a dissolution of the adults’ relationship. Thus, the co-parent would not be obliged as a mere third party to prove that the child’s legal parent is “unfit” or that “exceptional circumstances” would justify invading her constitutional parental rights. In deciding whether to award visitation in this case, the court would be concerned with the best interest of the child once the de facto parent status of Michelle was recognized. The court rejected Brittany’s argument that the legislature has the sole authority to make this change in Maryland law, pointing out that the existing legal framework is largely the result of judicial decision-making, not legislation.
“We overrule Janice M. because it is “clearly wrong” and has been undermined by the passage of time,” wrote Judge Adkins, making clear that “de facto parents are distinct from other third parties. 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.” Judge Adkins described the best interest of the child as being “of transcendent importance,” and concluded, “With this holding we fortify the best interests standard by allowing judicial consideration of the benefits a child gains when there is consistency in the child’s close, nurturing relationships. We do so carefully, adopting the multi-part test first articulated by the Wisconsin Supreme Court in H.S.H.-K. This test accommodates, we think, the dissonance between what is in the best interest of a child and a parent’s right to direct and govern the care, custody, and control of their children.”
The court returned the case to the Circuit Court “for determination of whether, applying the H.S.H.-K. standards, Michelle should be considered a de facto parent, and conduct further proceedings consistent with this opinion.” Thus, it will remain for the trial court both to determine Michelle’s status and, if she is a de facto parent, whether it is in the child’s best interest to order visitation. This determination will naturally have to take into account the fact that Brittany has not allowed contact with the child, now age 6, since July 2012, four years ago, so one anticipates that the trial court will hear expert testimony from both parties about the impact of reestablishing contact after this prolonged gap in the life of a very young child.
Interestingly, Michelle Conover now identifies as a transgender man and transitioned after the divorce, but the court indicated in a footnote that “she explained that she would refer to herself using female pronouns and her former name for consistency with the record and that her gender identity is not material to any legal issue in this appeal.” The court agreed to this arrangement, and Michelle’s current name appears nowhere in the opinion, but a press release by Free State Legal, whose deputy director and managing attorney Jer Welter, represents Michelle, identifies the appellant as “Michael Conover.” One wonders whether or how the trial court will take this transition into account in making the “best interest” determination. Case law is thin on the point, and unfortunately there are older published opinions taking the view that exposure to parents who had transitioned could be traumatic for their children. If Brittany (who is no longer using Conover as her surname) remains strongly opposed to visitation, it would not be surprising if she sought to make this an issue in the best interest determination by the Circuit Court.
More than 45 organizations collaborated on seven amicus briefs that were filed in support of the appellant before the Court of Appeals, including LGBT rights groups, women’s rights groups, and a large group of law professors specializing in family law.