Maryland Court of Appeals Reverses Itself and Recognizes De Facto Parents

In a major win for children and adults who helped raise children but did not adopt them, Maryland’s highest court reversed one of its worst decisions and recognized that “de facto parents” should have a rights to custody and visitation even though there is no biological connection between the adult and the child.  This is a huge victory not only for children who will no longer have the de facto parent ripped away from them, but also particularly for the grandparents, lesbian, gay, bi-sexual and transgender and straight adults who helped raised his/her partner’s children but never formally adopted them.

This issue arises particularly with same-sex divorces and separations when one partner either adopted or gave birth to a child but the child was raised jointly by the two partners.  In a horrendous decision in 2008, Janice M. v. Margaret K, 404 Md. 661,  a 6-1 majority of the Court of Appeals held that only the adoptive or biological parent had a right to custody of the child, even though her lesbian partner and child were bonded and the partner had helped to raise the child.  The non-adoptive, non-biological former partner became a “legal stranger” to the child upon divorce or dissolution of the relationship. The Court ruled that when the gay partners divorced the partner who did not adopt the child had to prove that the biological or adoptive parent was either unfit to parent or that “exceptional circumstances” existed—and that helping to raise a child as her own did not constitute “exceptional circumstances.”

In Conover, the parties were married after the child was born.  The defendant was artificially inseminated with sperm from an anonymous donor.  The plaintiff did not adopt the child nor was she listed on the birth certificate as a parent.

The couple jointly raised the child for the first year of his life.  After that year they separated but the parents worked out a visitation schedule.  However, ten months after the separation the defendant terminated her former partner’s access to the child.   All of the lower courts ruled against the Plaintiff saying in part that because Conover had no direct biological ties to the child, and had not formally adopted him, they were bound by Margaret K. and denied her visitation.

The Court of Appeals reversed and adopted the Wisconsin Supreme Court’s standards for identifying a de facto parent (In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wisc. 1995)). Under this test the Court of Appeals has adopted, a third-party seeking de facto parent status must prove when petitioning for access to a minor child:

(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;

(2) that the petitioner and the child lived together in the same household;

(3) 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; and

(4) 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.

While each of the factors must be established, the first factor is the gate keeper.  For example, a nanny may establish a very close relationship with the child, but the Court stated that it is unlikely that he or she will be able to establish that the parent consented to formation and establishment of a “parent-like relationship.” The July 2016 reversal of Janice M. is remarkable for several reasons. First, it is highly unusual for the Court of Appeals to reverse itself, particularly in such a short time. Second, current members of the Court reversed how they voted just a few years ago. Finally, the Court went out its way to praise the logic of the lone dissenter in the Janice M. case (Judge Irma Raker)-logic it had rejected just a few years before.

According to the FreeState Justice, the lawyers who brought the case for Michelle Conover (now Michael Conover, a transgender man), this case “impacts thousands of children in Maryland born into families headed by same sex couples.” Although the case has generated the most discussion in the LBGT community, it is equally applicable to the common situation of a step-parent helping to raise a child but not being able to adopt the child because the divorced biological parent will not consent. As the concurring opinion pointed out in Conover, this can lead to a situation where at least three adults have custodial and visitation rights to the child.

Although Conover now gives de facto parents the right to go to court to establish visitation, it does not mean they should run to the courthouse door.  Custody disputes are without doubt better resolved through mediation or collaborative law.

The case is Conover v. Conover, 450 Md. 51, 146 A.3d 433 (2016).  The decision is at http://www.mdcourts.gov/opinions/coa/2016/79a15.pdf.