Same-sex vistitation case vacated

Posted: 11:14 pm Tue, November 24, 2009
By Caryn Tamber
Daily Record Legal Affairs Writer

A Baltimore County woman will get another chance to argue against child-visitation rights for her ex-girlfriend.

Last week, the Court of Special Appeals vacated a Baltimore County Circuit Court judge’s decision to let Larissa S. visit her ex-partner Melissa B.’s 8-year-old son.

The judge improperly refused to hear new evidence from Melissa about the potential impact of visits on her son, the intermediate appellate court held. The court decided the case just one week after hearing oral arguments.

“We recognize that the lengthy period of time [the boy] has been separated from Larissa has been caused in large part by the inevitable delays associated with protracted litigation and the changing legal landscape,” Judge Robert A. Zarnoch wrote for a three-judge panel. “However, numerous circumstances may have changed between the circuit court’s original decision and its next opportunity to consider the issue, raising the possibility that any judicial decision regarding visitation might be inaccurate and detrimental to the welfare of the child.”

Barring a certiorari petition to the Court of Appeals, the case will return to Baltimore County, where a judge will have to consider new evidence to determine whether there are “exceptional circumstances” compelling visitation. Under Maryland law, a non-parent who wants visitation against the wishes of the custodial parent must prove that exceptional circumstances mean the child would suffer from the lack of contact.

Steven L. Tiedemann, who argued Melissa’s case, said the decision is not a “full victory.”

“We had hoped the court would find that under no circumstances on the record as presented, that no judge could find exceptional circumstances,” he said.

A lawyer for Larissa did not return a call for comment Tuesday afternoon.

Melissa and Larissa had been together for seven years when they decided to have a child, according to the opinion. Melissa became pregnant by a friend of Larissa’s and had a son in 2001.

In 2002, Melissa conceived another child with the same man, but before she gave birth to her second son, she and Larissa broke up. Larissa never adopted either child, which Melissa testified was by design.

Afterward, Melissa allowed Larissa to visit the boys, but in 2005, she cut off contact.

Larissa filed suit.

In 2006, the circuit court held that Larissa was the de facto parent of the older child, meaning that she lived with and performed parental functions for him with the legal parent’s consent and that there was a parent-child bond between them. She was not, however, the de facto parent of the younger child, the court held. A third party who was deemed a de facto parent had only to prove that visits were in the “best interest” of the child, a much lower standard than exceptional circumstances.

Even though the judge found that Larissa was the older child’s de facto parent, he denied visitation, ruling that allowing just the older boy to visit Larissa might hurt the bond between the brothers.

The Court of Special Appeals sent the case back, holding that the judge had erred in denying visitation with the older boy and ordering the judge to consider whether exceptional circumstances existed.

Melissa petitioned the Court of Appeals for cert, but while that petition was pending, the Court of Appeals held in another same-sex visitation case, Janice M. v. Margaret K., that Maryland does not recognize de facto parenthood.

That decision meant that all third parties must prove exceptional circumstances in order to win child access over the custodial parent’s protestations.

The Court of Appeals denied Melissa’s cert petition and the case returned to Baltimore County, where Judge Lawrence R. Daniels determined that exceptional circumstances justified a visitation order.

“I have to believe … eliminating [Larissa] from [the child’s] life would have to have a deleterious effect on [him],” Daniels said at the time.

Visitation was never restarted, Tiedemann said.

He said this case has been difficult for all involved.

“You can certainly be a person like myself [who has] taken a stand against gay marriage, but it doesn’t make these sorts of situations easier, and we certainly recognize that they are painful for everyone, including [Larissa],” Tiedemann said.

The unreported opinion is available as RecordFax #9-1119-01 (9 pages).