Who Is The Parent? – Custody & Visitation

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While summer is traditionally the time for us to kick back and relax, the Maryland Court of Appeals has been quite busy in the family law arena with the release of two important decisions in July 2016.

In the case Conover v. Conover, Maryland’s highest court recognized the doctrine of de facto parenthood.  A de facto parent is a person who has raised a child together with the child’s other legal parent. Recognition of the de facto parenthood doctrine will have especially important consequences for children who are born into families headed by same-sex couples.  In such families, the court has held that a de facto parent, the parent who has neither a biological nor adoptive relationship with a child, will have standing to pursue custody and visitation claims.

Here are the basic facts of the case.  Michelle Conover and Brittany Conover were a couple in a committed same-sex relationship.  In 2009, before the recognition of same-sex marriages in Maryland, the couple decided to have a child together via artificial insemination.  They chose an anonymous sperm donor to resemble Michelle.  Through this procedure, Brittany gave birth to Jaxon, who was given Michelle’s last name.  A few months after Jaxon’s birth, the couple married in nearby Washington, DC.  While Michelle did not formally adopt Jaxon, she raised Jaxon with Brittany for the first two years of Jaxon’s life.

Michelle and Brittany divorced and as a part of the divorce case, Michelle requested that the court award to her visitation with Jaxon.  Brittany did not agree and argued that Michelle was a “legal stranger” to Jaxon and, as such, had no right to pursue this claim.  The trial court and Maryland Court of Special Appeals agreed with Brittany’s argument, but the highest appellate court in Maryland clearly and unambiguously overturned these decisions in the Conover case and other rulings in previously adjudicated cases.  In so doing, the Court of Appeals stated: “A legal parent does not have a right to voluntarily cultivate their child’s parental-type relationship with a third party and then seek to extinguish it.”