Maryland’s Highest Court Recognizes ‘De Facto Parent’ Status, Allows Woman’s Ex-Wife to Seek Visitation

same sexThe case regarding the custody of, and visitation with, one little boy from Western Maryland has touched upon some of the most visible social issues of today. What it also did, following a recent ruling by Maryland’s highest court, was re-establish the existence of a “de facto parent” doctrine and to give these de facto parents certain rights with regard to the children that they helped nurture and raise. The high court’s ruling has been praised as an important victory for gay and lesbian individuals with children.

This recent case, which began in Washington County, involved the son born to Brittany Eckel in April 2010. The son was conceived by artificial reproduction. About a half-year after the child’s birth, she and her partner of eight years, Michelle Conover, married in the District of Columbia, with Eckel changing her last name to Conover. Around one year after they married, the women separated. For almost a year, the parents had a working relationship regarding visitation with the boy. In the summer of 2012, though, Brittany began restricting Michelle’s access to the child.

In 2013, Brittany filed for divorce. Her divorce petition said that the couple shared no children. Michelle responded, demanding visitation with the child. Brittany argued that she was not married to Michelle when the boy was born, that Michelle was not on the child’s birth certificate, and Michelle had never adopted the child and, based off these facts, Michelle was merely a third party who had no right to demand visitation. Michelle, the court decided, was a “de facto parent,” but because Maryland gives no rights to de facto parents, Michelle was entitled to nothing.

Michelle contested the ruling, taking her case all the way to Maryland’s highest court. The Court of Appeals of Maryland reversed the decision denying Michelle rights to the son. While the trial court had correctly interpreted existed Maryland law; namely, a 2008 case called Janice M. v. Margaret K. that denied legal rights to de facto parents, the high court decided in this case to reverse the 2008 Janice M. ruling and send the Conovers’ case back to the trial court for a further hearing regarding visitation.

The court took note of many factors, including the evolving status of gay and lesbian couples in the law and in society. These facts and changes were particularly relevant since many cases involving claims of de facto parent status (including both this case and the Janice M. case) involve same-sex couples who subsequently separated. In addition, the court took notice of the law of other states, the majority of which recognize de facto parent status.

In making this change, the court rejected the idea that it should leave such changes in the law to the legislature. Courts possess a clear duty to protect “the best interests of children in actions before the court, even if the Legislature has not determined what the best interests require in a particular situation.” In this case, and ones like it, the court stated, de facto parents are different from other third-party individuals and have the right to contest custody and visitation.

The case now returns to the trial court, where that court will issue a ruling setting visitation. The resolution of this may remain extremely complicated. Sometime after the divorce, Michelle transitioned from female to male and took the name Michael Conover. According to the Washington Blade, Brittany’s counsel already raised the issue of harm to the boy related to having a transgender parent, indicating that the battle over the true “best interests” of this child may remain a contentious one.

Each family law case is unique, just as each family is unique. Some cases, though, present a special level of complexity. A knowledgeable Maryland attorney can help you take the facts of your case and understand your options under the law. Anthony A. Fatemi is a skilled Maryland family law attorney who has the years of experience you need to help you and support you as you work toward a successful resolution of your case. Contact us at 301-519-2801 or via our online form.

More blog posts:

U.S. Supreme Court Reviews Same-Sex Adoption Case, Maryland Divorce Lawyer Blog, April 11, 2016

Maryland Court Affirms Decision Denying Parent Visitation in Child Custody Dispute, Maryland Divorce Lawyer Blog, Dec. 30, 2014

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