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Maryland High Court Adopts De Facto Parent Standing for Lesbian Co-Parents

Posted on: July 8th, 2016 by Art Leonard No Comments

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.

Maryland Intermediate Appellate Court Finds State Precedent Precludes Applying “Best Interest of the Child” Standard to Visitation Dispute of Divorcing Lesbian Couple

Posted on: August 27th, 2015 by Art Leonard No Comments

Due to the oddities of timing during a transitional period in the legal landscape, the Maryland Court of Special Appeals found in the context of a divorcing lesbian couple that the non-biological parent’s claim for visitation with the child conceived through donor insemination at a time when the women could not marry in their domicile of the District of Columbia must be dismissed on standing grounds. It seems that by a fluke of timing the women could have married in D.C. before the child was born, but did not marry until shortly after his birth, and this turned out to be determinative under Maryland law. Conover v. Conover, 2015 Md. App. LEXIS 107 (Md. Ct. Spec. App., Aug. 26, 2015). The Court of Special Appeals (an intermediate appellate court) rejected equitable claims, found that potential constitutional claims on behalf of the non-biological parent had not been properly raised or preserved at trial, and, in the opinion for the court by Judge Robert A. Zarnoch, characterized this as a “sad case” since “the present state of Maryland case law leaves us no choice.” In a concurring opinion, Judge Douglas R.M. Nazarian wrote, “I agree with the majority that this case is sad, but I would add the adjective ‘frustrating,’” and he wrote at length about how the current legal parenthood regime in Maryland was inadequate to meet the situation of unmarried same-sex parents.

Maryland’s legislature adopted a law authorizing same-sex marriage, but only after the underlying events in this case occurred. There is no question that Maryland recognizes the District of Columbia marriage of Michelle and Brittany Conover. The question is whether, in the context of a divorce proceeding, Michelle has the standing of a parent seeking visitation, or rather should be treated as an unrelated third party. The court found that existing Maryland precedents, not altered by passage of the Marriage Act, dictates third-party treatment.

The women’s relationship began in 2002, with some “breaks.” They discussed having a child and Brittany became pregnant through donor insemination in 2009, at a time when marriage licenses for same-sex couples were available in three states but not in D.C., where they were then living. In March 2010, D.C. began issuing marriage licenses to same-sex couples under a newly-enacted municipal ordinance. On April 4, 2010, Brittany gave birth to their son, Jaxon William Lee Eckel Conover. (The name incorporates former surnames of the parents’ families.) The birth certificate listed Brittany as the mother and left blank the space for father. On September 28, 2010, the women married in D.C. and subsequently took a common surname, Conover. They subsequently moved to Maryland, which did not legislate for marriage until a few years later, although Maryland was, by virtue of an Attorney General opinion, recognizing same-sex marriages from D.C.

The marriage didn’t last very long. The women separated in September 2011, but Michelle continued to visit Jaxon regularly until Brittany prevented further contact in July 2012. Brittany filed a pro se divorce action in Maryland on February 8, 2013, which did not mention Jaxon. Michelle, also proceeding %pro se%, answered on February 19, asserting a claim for visitation rights, and then on March 14 filed a counterclaim for divorce pro se, again raising the issue of visitation. At the subsequent hearing on April 30, Michelle was represented by counsel but Brittany was not. Brittany claimed Michelle did not have parental standing to seek visitation, which Brittany opposed. Michelle rested her claim on a Maryland statute governing paternity claims when a child was born before the parents married, asserting that the court should construe the statute to apply to spouses of either sex, not just fathers. The statute, Sec. 1-208(b), provides four ways a man who was not married to the child’s mother at birth could establish parental status. If one gives it a gender-neutral reading (as California has done in similar situations), Michelle could assert parental status under three of the four methods. She also asserted equitable claims, such as de facto parenthood and estoppel.

Circuit Judge Daniel P. Dwyer issued a decision on July 4, 2013, finding that Michelle was not a legal parent of Jaxon. As a “third party,” she could only seek visitation if she could show that Brittany was unfit as a parent or that there were extraordinary circumstances justifying the court in letting Michelle seek visitation. The court found that neither of those requirements were met, and rejected her visitation claim, and Michelle appealed.

First addressing constitutional issues, Judge Zarnoch observed that although “nearly half of her brief” was devoted to attacking Maryland’s paternity and legitimacy statutes as unconstitutionally discriminating against women and gay people, Michelle had not raised these arguments before Judge Dwyer, Brittany appearing pro se had not been called to respond to them, and the Attorney General had not weighed in. Zarnoch, quoting another judge in an old case, said that “it would be foolhardy in the extreme to undertake the resolution of such complex constitutional questions” on this sort of record. However, Judge Zarnoch observed, Brittany benefited in this dispute by the well-developed Maryland and federal case law on the constitutional right of fit parents to determine who would associated with their children. As Michelle did not challenge Brittany’s fitness as a parent, Brittany had a right to veto Michelle’s demand for visitation, as the appellate court agreed with the trial judge that under Maryland law Michelle is a “third party,” even though she had helped to plan for Jaxon’s conception and had married Brittany shortly after the child was born.

Zarnoch reviewed Maryland case law, showing that the state’s highest court, the Court of Appeals, had rejected the concept of de facto parenthood in this context, observing that under Maryland law, “A non-biological, non-adoptive spouse who meets one, two or even three tests under ET Sec. 1-208(b) [the paternity statute] is still a ‘third party’ for child access purposes.” The court agreed that the paternity statute was enacted for the purpose of imposing duties on unmarried fathers, not for the purpose of establishing custody or visitation rights on such individuals. If Brittany was seeking a child support order against Michelle, it is possible on these facts that such an order might be forthcoming, but the statutes could not be construed in the court’s view to entitle her to be considered as a legal parent for custody or visitation purposes. “Moreover,” wrote Zarnoch, “there is no gender discrimination or sexual orientation discrimination because all non-biological, non-adoptive parents face the same hurdle, no matter what sex or sexual orientation they are.”

Zarnoch also contended, “The couple could have married before Jaxon was born, but did not. The circuit court did not err in failing to accord weight to the prohibition on same-sex marriage that once existed.” This is because D.C. began allowing same-sex marriages while Brittany was pregnant. Had the women quickly taken advantage of this, they would have been married when Jaxon was born and Michelle would have parental standing under the general principle, followed in Maryland, that the spouse of a woman who gives birth is a legal parent of the offspring. Even before D.C. was performing same-sex marriages, the court pointed out, Michelle and Brittany could have gone to one of the other three states that authorized same-sex marriages (all without residency requirements) and gotten married before conceiving Jaxon. They also could have had Michelle adopt Jaxon after he was born. (The court noted in passing that as of that time it was not totally clear that Maryland courts would approve second-parent adoptions, but the Court of Appeals had not ruled against them. It would seem that once the couple had married, a court would likely have treated this as a step-parent adoption and no more controversial, but that is just hindsight from today’s perspective.) There was evidence that the women talked about adoption, but the expense of a formal adoption was, in their view, a burdensome and unnecessary expense on top of the expenses of raising Jaxon.

Michelle argued that Brittany should be barred from raising the parental status issue, inasmuch as the women had agreed before the child was conceived that Michelle would be a parent, and that Brittany had said and done various things prior to and after the birth to continue to induce Michelle’s reliance that her parental status would be honored and she did not have to go through a formal adoption procedure to protect her rights. The court was unwilling to go down that path, pointing out that most courts had rejected equitable estoppel or parenthood by estoppel arguments in such cases and that Michelle “had ample time – years, in fact – to pursue the adoption of Jaxon.” (Actually, she had just over a year if one assumes that Brittany would become uncooperative about an adoption after the women had separated, so the court’s characterization may exaggerate Michelle’s window of opportunity for this.)

Michelle’s appellate strategy was focused on persuading the court that she should not be treated as a “third party” and thus should not have to show “exceptional circumstances” to overcome Brittany’s objection to her claim for visitation, and that the trial court should have afforded her an additional hearing to address the “exceptional circumstances” issue if the judge was to decide it. The appellate court was not persuaded, finding that she had an opportunity to introduce evidence on this point. Indeed, her trial lawyer on the record said that the evidence “screamed extraordinary circumstances” and that this was an “alternative argument” for her standing. She had also briefed the issue to the trial judge in a post-hearing memorandum, so Judge Zarnoch found that the trial court could not be faulted for reaching and deciding the issue. Since Michelle had not asked on appeal that the appellate court address the correctness of the trial judge’s conclusion on this point, the court refrained from doing so.

“In conclusion,” wrote Zarnoch, “it must be said that this is a sad case; nor can Michelle’s desire for access to Jaxon be questioned. However, the present state of Maryland case law leaves us no choice. The interplay between the State’s paternity statutes and the marriage, divorce, and child access rights of same-sex couples is aptly characterized as ‘uncharted Maryland waters in an area where the Legislature is better suited to consider the competing legal and societal values. . .,’’ quoting from In re Roberto de B., 399 Md. At 312-13 (dissent).

Although Judge Nazarian agreed with the result, he concurred in a separate opinion bemoaning the failures of Maryland family law, asserting that the “premise” underlying the Court of Appeals’ rejection of the de facto parenthood doctrine “no longer holds, at least with regard to married same-sex couples. If, as Maryland law now provides,” he continued, “a valid marriage between two women (or two men) has the same legal validity and force as a man-woman marriage, courts should analyze the visitation rights of same-sex spouses the same way they analyze the visitation rights of opposite-sex spouses. I acknowledge that there may well be some challenges in adapting our analyses to accommodate the real-life differences in the way children join same-sex families, but it may not be that hard either, and we have to start somewhere.” He concluded that “the historic treatment of same-sex parenthood is no longer up to the task.”

The next step for Michelle may be an attempt to take this to the Court of Appeals and seek reversal of the precedent that bound the intermediate court to rule against her. In a sense this case is presenting a transitional problem in light of the subsequent enactment of a marriage equality law in Maryland, followed by the Supreme Court’s Obergefell decision. But, on the other hand, same-sex couples, in common with many different sex couples, have children while cohabiting but without marrying under varied circumstances, so it is unlikely that the issues in this case will not arise in future cases, even with the option to marry or to adopt available.