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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.