Court of Appeals asked to review denial of visitation following same-sex divorce

The former same-sex partner of a child’s mother has asked Maryland’s top court to review lower-court decisions denying him the parental rights of custody and visitation, even though the decision to conceive the child was mutual and the couple married — but later divorced — after the child’s birth.

In papers filed this month with the Court of Appeals, Michael Conover argues that Maryland law contains a “presumption of parentage” for individuals who assume the duties of parenting but are neither a biological nor an adoptive parent of the child.

In the petition for high-court review, Conover, a transgender man, is referred to by his former name, Michelle, and by feminine pronouns.

The Court of Special Appeals held in August that Conover lacks parental standing and thus has no right to visitation or custody of the child, Jaxon. Instead, Conover is a third-party who can visit the youngster against the mother’s wishes only by showing the mother is an unfit parent or that exceptional circumstances exist to override the mother’s choice about whom her child spends time with, the Court of Special Appeals stated in affirming a Washington County Circuit Court decision.

Conover, in the high-court appeal, says the Court of Special Appeals ignored the presumption of parentage, which holds that visits can be denied only upon a showing that they would not be in the child’s best interest.

“There is no doubt that [Conover] has acknowledged Jaxon as her child and that she married Brittany after Jaxon’s birth,” Conover’s attorney, Jer Welter, wrote in the petition. “Under this court’s consistent case law regarding presumptions of parentage, the resulting legal presumption that Michelle is Jaxon’s parent should only be rebutted if it is in Jaxon’s best interests to deprive him of his parent-child relationship with Michelle. This court’s jurisprudence on the statutory presumptions of parentage dictates that, unless and until Michelle’s presumptive parentage is disestablished, she is Jaxon’s legal parent – not a ‘third party.’”

Welter is deputy director and managing attorney at FreeState Legal Project Inc., a Baltimore-based advocacy group for the low-income lesbian, gay, bisexual and transgender community.

In a statement announcing the petition for high-court review, Conover said he has been unable to see Jaxon for more than two years.

“Not being able to be with my son, to lead him, and watch him grow is a pain that I wish no one else would have to experience,” Conover said. “Little kids don’t understand genetics, they understand a parent’s nurturing love. My love for my child is never going to go away.”

Brittany’s counsel of record, Charles Bailey, said he is reviewing the petition and formulating a response for the Court of Appeals. Bailey is a Hagerstown solo practitioner.

The Court of Appeals has not yet decided whether it will hear Conover’s appeal.

The case is captioned Michelle Conover v. Brittany Conover (No. 431, September Term 2015), though Brittany reassumed her former surname, Eckel, after the divorce.

‘De facto parenthood’

Michelle and Brittany began their relationship in 2002 and Jaxon was conceived seven years later through artificial insemination from an anonymous donor, according to court papers. 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 until July 2012, Michelle was able to see Jaxon overnight and on weekends, according to court papers.

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 circuit court ruled.

The Court of Special Appeals affirmed, prompting Conover’s appeal to the high court.

“If a person can be a full participant in the decision to bring a child into this world, and parent the child from birth, and still not be able to show ‘exceptional circumstances’ [permitting visitation], then the exceptional circumstances standard is fundamentally flawed,” Welter wrote in the petition for high-court review. “This court should recognize de facto parenthood as an independent legal status; or alternatively should recognize that, by demonstrating de facto parenthood, a person has ipso facto demonstrated exceptional circumstances, as other [states’] courts have held.”