Maryland Court Reluctantly Denied Custody and Visitation in Same-Sex Divorce Case

rings-1516837Any divorce case involving children, and the attendant questions of custody and visitation, typically includes many emotional and practical challenges. The parties separating must address issues such as physical and legal custody and the visitation rights of the non-custodial parent. It is extremely important to understand your rights under the circumstances of the divorce, especially at the very beginning of the proceedings. To protect your family’s rights in a divorce case, you are encouraged to reach out to an experienced Maryland family law attorney as soon as possible.

Child custody issues can become even more complicated in same-sex marriages, in which the local state laws (statutory or common law) have not quite caught up with the needs of such divorcing couples. Consider a recent case, Conover v. Conover, in which the parties disputed one spouse’s right to custody and visitation. Here, the couple began a relationship in 2002 and decided to try artificial insemination, by an anonymous donor, in order to conceive a child. At the time, the couple, Brittany and Michelle, lived in D.C., where same-sex marriage was not legal.

The child was conceived in 2009, and Brittany gave birth to a son on April 4, 2010. It is important to note that as of March 2010, the District of Columbia began to issue marriage licenses to same-sex couples. The birth certificate identified Brittany as the child’s mother, and no one was listed as the “father.” The couple did get married on September 28, 2010. However, they separated in September 2011. From then until July 2012, Michelle visited the child and enjoyed overnight and weekend “access.” At that point, Brittany stopped allowing Michelle to continue visiting him, and she filed a complaint for “absolute divorce” – omitting any mention of the child. Michelle responded, seeking visitation rights.

The court held a hearing to determine Michelle’s standing to seek access to the child. Brittany argued that Michelle did not have parental standing because she was not identified as a parent on the birth certificate, and that as a third party, she could not ask for visitation rights. In response, Michelle argued that she satisfied the paternity factors for a “father” under the State code, Section 1-208(b). The trial court concluded that Michelle was not the child’s “father” and could not establish parental standing under the statute. The court further noted that the couple could have married prior to the child’s birth, once D.C. started issuing marriage licenses to same-sex couples. Since Michelle was deemed a “third party,” the only way she could have access to the child was to present a showing of “exceptional circumstances.” The court found no proof of such circumstances and ruled in favor of Brittany.

On appeal, the court looked at whether the lower court erred in determining that Michelle did not have standing under the statute to pursue visitation and custody (and in denying her the same). The court affirmed the decision, but somewhat reluctantly, pointing out that the current state of Maryland case law demands this result. The court characterized as “unchartered waters” the interplay between the State’s paternity laws and the marriage, divorce, and child access rights of same-sex couples.

Here, the court found that the non-biological, non-adoptive parent could not prevail over the biological mother’s objection to custody and visitation. Clearly, these are uncharted and complicated waters. The best course of action in any child custody matter is to contact an experienced family law attorney from the local area.  Anthony A. Fatemi is a family law attorney with a great deal of experience representing parties throughout the state of Maryland.  For help with your family law needs, you are encouraged to contact us at (301) 519-2801, or to submit our online contact form.

Related Blog Posts:

Maryland Court Asserts Personal Jurisdiction Over Non-Resident Putative Father in Child Custody Case

Maryland Legislators Introduce Bill Addressing “de facto” Parental Status

Same Sex Marriage and Divorce Making News Around the Country

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