A year after the U.S. Supreme Court’s marriage equality decision, state courts are still sorting out the implications for same-sex couples when it comes to disputes over children. The Maryland Court of Appeals, the state’s highest court, ruled Thursday that a non-adoptive same-sex partner is still entitled to legal recognition in a custody dispute.
Michael Conover, who now identifies as a transgender man, was formerly in a same-sex relationship for nearly a decade with Brittany Eckel. In 2009, the couple decided to have a child together by having Brittany undergo artificial insemination. When their son, Jaxon, was born, he took Conover’s last name and the following year, the couple married in Washington, D.C. and Brittany took the name Conover too. After two years parenting Jaxon together, they separated, and Brittany refused to provide Michael visitation, prompting him to sue for visitation rights.
Both the trial court and Court of Special Appeals ruled against Michael, declaring that he was a legal stranger to Jaxon. Because the couple was not already married when they had Jaxon, there could be no presumption of parentage for Michael, and he never officially adopted his son either. A previous case involving a same-sex couple’s similar dispute set up this legal obstruction years before.
In 2008, the Maryland Court of Appeals ruled in a case called Margaret K. v. Janice M. that the state could not recognize a same-sex partner as a parent if no formal adoption took place. In that case, the couple had adopted a daughter from India, but India did not allow unmarried couples to adopt, so with marriage not a legal option at the time, only Janice adopted the child. The couple separated when their daughter was 7, and the Court ruled against granting Margaret any custody because she was not connected by biology or adoption nor could she prove that Janice was an unfit parent.
But Conover v. Conover has overturned that decision by allowing the state to recognize what is known as a de facto parent. The concept of a de facto parent is a legal standard that an increasing number of states have adopted, following a model established by the Wisconsin Supreme Court in a 1995 case that was also about a same-sex couple’s custody dispute. Someone arguing for de facto parent status must meet the following four conditions:
- that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;
- that the petitioner and the child lived together in the same household;
- that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation;
- that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
This test, the Maryland court argued, is important for recognizing individuals that a child might view as a “psychological parent,” even without the other legal factors in place. Essentially, if the legal parent introduces another parental figure into the child’s life, they can’t then just cut off that relationship because it could actually be damaging to the child.
The South Carolina Supreme Court has previously adopted the Wisconsin Supreme Court’s test as well (in a case that was notably not about a same-sex couple), emphasizing that the first prong is “critical” because of the responsibility it places on the legal parent:
Regarding the first prong, the court noted the first factor is critical because it makes the biological or adoptive parent a participant in the creation of the psychological parent’s relationship with the child. This factor recognizes that when a legal parent invites a third party into a child’s life, and that invitation alters a child’s life by essentially providing him with another parent, the legal parent’s rights to unilaterally sever that relationship are necessarily reduced.
Overturning the lower courts and their previous decision, the Maryland Court of Appeals declared that “de facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances.” The Wisconsin Supreme Court test, the judges concluded, “accommodates…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.”
Thursday’s decision does not immediately end the dispute. A lower court must still now determine whether Michael indeed meets the criteria for consideration as a de facto parent and make a new decision on custody and visitation. The evidence in the case suggests that he has reason to be optimistic.
Maryland isn’t the only state still figuring out how to sort out the legal recognition of same-sex parents. Just last week, a federal judge ordered Indiana to list both parents in a same-sex couple on their child’s birth certificate, following a similar ruling against Utah last year.