Court: No relation by blood, no visitation rights in same-sex divorce

Michelle and Brittany Conover weren’t married yet when they decided to have a child together — in fact, they couldn’t legally marry yet. But the two were in a long-term relationship, and they planned to raise their son together: Brittany carried and gave birth in 2010 to Jaxon William Lee Eckel Conover, who was conceived through artificial insemination, while Michelle helped choose the sperm donor.

Jaxon’s full name incorporates both of their last names, and the three of them lived together for the first 17 months of Jaxon’s life. During that time, Brittany and Michelle married.

But after the relationship fell apart and the couple decided to separate, Michelle — the nonbiological parent — requested the right to visitation with Jaxon, which Brittany denied.

In a case that the Court of Special Appeals said illustrates the limitations of the judicial system when it comes to same-sex families, the state’s intermediate appellate court upheld a ruling by a Washington County Circuit judge that Michelle does not have parental standing and therefore has no right to visitation or custody.

Instead, she is a “third party” with respect to Jaxon, the court ruled, meaning she would have to prove that Brittany is an unfit mother or that exceptional circumstances exist to override Brittany’s choices about whom her child spends time with.

Writing for the court, Judge Robert A. Zarnoch said the laws governing the rights of same-sex couples who divorce are still largely “uncharted Maryland waters” that will present a challenge for the legislature, rather than the judicial system, to sort out.

Charles Bailey, a solo practitioner in Hagerstown who represented Brittany, said he agreed that under existing case law, the court didn’t have a choice in ruling for his client.

“It’s an area of the law that’s in flux, and my gist from the opinion is that the law hasn’t caught up with social realities and that their hands were tied,” he said.

‘Stringent standards’

In 2008, the Court of Appeals established “stringent standards” for parental status in Janice M. v. Margaret K., when it declined to recognize de facto parenthood for individuals who are not related to a child through biology or adoption. Because Michelle fell into that category, the Court of Special Appeals ruled against her.

But the Court of Appeals’ position puts Maryland in the minority when compared to other states and Washington, D.C., according to Nancy Polikoff, a professor at American University’s Washington College of Law. Although Maryland is typically considered fairly progressive when it comes to same-sex marriage — which was legalized in the state in 2012 — it’s “not about how gay-friendly a state is,” said Polikoff, who teaches family law and a seminar on children of LGBT parents.

“There are numerous states reluctant to recognize same-sex relationships but not reluctant to recognize that if you create a two-parent family, then that is the child’s family and you can’t yank the one parent out of the child’s life,” she said. “Other states, even if they don’t extend parentage, extend an ability to continue a relationship.”

Visitation rights

Michelle and Brittany began their relationship in 2002 and Jaxon was conceived seven years later through artificial insemination from an anonymous donor, according to the opinion. Brittany gave birth on April 4, 2010, about a month after marriage licenses for same-sex couples became available in the District of Columbia. Brittany was the only parent listed on Jaxon’s birth certificate.

Brittany and Michelle were married in Washington in September 2010. They separated about a year later, and from then until July 2012, Michelle was able to see Jaxon overnight and on weekends, the opinion states.

At some point that month, however, Brittany prevented Michelle from continuing to visit Jaxon. Brittany soon filed a complaint for divorce, which Michelle answered, stating that she wanted visitation rights.

At a hearing to determine whether Michelle could seek access to Jaxon, she alleged that she met the standards for paternity and could legally be considered the boy’s father.

But the circuit court ruled against her, acknowledging the common-law presumption that a child born during a marriage is the child of both parents but pointing out that Jaxon was born before Michelle and Brittany were married. Because Michelle had never adopted him and was not biologically related to him, she was a “third party,” not a second parent, the court ruled.

Determining parenthood

In a concurring, appellate court opinion, Judge Douglas R.M. Nazarian noted the discrepancy between the ways parenthood is determined when it comes to visitation and when it comes to child support. If Brittany had sought financial support from Michelle, he wrote, it’s likely Michelle would have legally qualified as Jaxon’s father with respect to support but would still not have a legal right to visit him.

“The greater potential for this sort of dichotomy in the context of a same-sex divorce confirms my instinct that the historic treatment of same-sex parenthood is no longer up to the task,” Nazarian wrote.

Polikoff agreed, adding that Maryland is “out of step” with the standard in other states.

If Jaxon had been born in Washington, she said, “it wouldn’t have mattered at all that they weren’t married.”

“Because the child was born through donor insemination, the two people who are involved in arranging that and who intend to be parents are the legal parents, just as in Maryland, a husband who consents to his wife’s insemination is a parent,” Polikoff said.

Amy Gibson, an attorney for Michelle Conover, did not respond to a request for comment on the appellate court ruling. Gibson is with Harbin & Gibson LLC in Hagerstown.

The case is Michelle L. Conover v. Brittany D. Conover, No. 2099, Sept. Term 2013.