Please ensure Javascript is enabled for purposes of website accessibility
Michael Conover and his son, Jaxon. (Courtesy of Michael Conover)

Court of Appeals will review denial of visitation following same-sex divorce

Maryland’s top court has agreed to decide if the former same-sex partner of a child’s mother has the parental rights of custody and visitation because the decision to conceive the child was mutual and the couple married – but later divorced – after the child’s birth.

The Court of Appeals said it will review lower-court decisions that Michael Conover lacks parental standing and thus has no right to visitation or custody of the child, 5-year-old Jaxon.

The high court is expected to hear arguments in the case in April and issue its decision by Aug. 31, according to the Court of Appeals’ clerk’s office.

The Court of Special Appeals upheld in September a circuit court ruling that Conover is a third-party who can visit the son against the wishes of the mother, Brittany Eckel, 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.

Conover, in successfully petitioning the top court to hear his appeal, argued 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. Conover argued 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.

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

“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.

Eckel’s attorney, in an unsuccessful request that the high court not hear the appeal, stated in court papers that neither Maryland statutory nor common law confers parental rights upon “a non-biological, non-adoptive, ‘de facto parent.’”

R. Martin Palmer Jr., a Hagerstown solo practitioner, argued that conferring de facto parental rights would raise serious constitutional issues regarding such a construction’s “inevitable erosion of the biological mother’s liberty interest in raising her child as she sees fit.”

Palmer also argued that Jaxon’s interests are best served by denying Michelle parental rights.

“Should Michelle have her way with the court, she would have a court order backed by the full powers of the court enabling her to walk down the sidewalk to Jaxon’s home, knock on the door with police behind her, and with court papers in hand announce that she is there for visitation with Jaxon and take him off for overnight visitations; for two weeks in the summer, for holidays and birthdays, etc.,” Palmer stated in the papers filed with the Court of Appeals.

Though Brittany restored her maiden name Eckel after the divorce, the case is captioned Michelle L. Conover v. Brittany D. Conover, No. 79, September Term 2015.

‘No longer up to task’

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 Washington County 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 in a reported decision Aug. 26. 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.

Daily Record reporter Lauren Kirkwood contributed to this article.