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Editorial Advisory Board: Bring de facto parenthood to Maryland

It is time for the Maryland General Assembly to pass legislation granting parental rights to individuals who are not biological or adoptive parents of children but who are de facto parents.

Under Maryland law today, there are only two categories of people in relation to the right to custody and/or visitation of a minor child – biological/adoptive parents or third parties. There is no middle ground to protect, for example, a person involved in the decision to conceive a child and/or involved in raising a child from birth but who was not married to the mother at the time the child was born and did not formally adopt the child.

The Court of Appeals weighed in on this issue in August in Conover v. Conover. There, the former same-sex partner of a child’s mother requested visitation as part of the divorce proceedings.  Although the couple decided together to conceive through artificial insemination and raise a child, they were not married until after the child was born. The Court of Special Appeals held that Michael Conover, a transgender individual referred to by his former name, Michelle, lacked parental standing and rights of visitation or custody of the child. The court held that Michael was a third party who can only gain the right to visitation by showing that his former spouse is an unfit parent or that exceptional circumstances exist. Only after proving one of those elements may a court consider what is in the best interest of the child to grant a third party visitation.

In affirming the decision of the circuit court denying Michael third-party visitation, the Court of Special Appeals noted that the “present state of Maryland case law left [it] no choice” and that this was “a sad case.” The court was bound by the Court of Appeals’ 2006 decision in Janice M. v. Margaret K., which held that de facto parenthood is not recognized in Maryland and therefore every third party, even someone who might otherwise qualify as a de facto parent, had to meet the same heightened standards when seeking custody or visitation. (The Court of Appeals has granted certiorari and will hear Michael’s appeal.)

Four factors

In Conover, the Court of Special Appeals recognized that this is “uncharted Maryland waters” and suggested that the “legislature is better suited [than the courts] to consider the competing legal and societal values” involved in granting parenthood status to this unique category of parent. In a situation where an individual acts as a parent from the time of the child’s birth but has not formally adopted the child, Maryland should recognize de facto parenthood, and adopt the test delineated in

Janice M. to determine if a party is indeed a de facto parent and should have parental rights.

There are four factors a petitioner must prove in order to establish de facto parenthood: if the legal parent consented to and fostered the relationship between the third party and the child; if the third party lived with the child; if the third party performed parental functions for a child to a significant degree; and if there is a parent-child bond forged. Legislation is required to ensure that once a person qualifies as a de facto parent, he or she will have the same standing as a biological or adoptive parent and the court should consider the best interest of the child when determining custody or visitation.

We call upon the General Assembly to fix the current situation and establish de facto parenthood as well as ensure that de facto parents have the benefit of standing to argue for custody or visitation if it is in the best interest of the child. Multiple bills were introduced in the legislature last session related to this issue, and this year it should be a primary focus to overturn the current case law and establish de facto parenthood in Maryland.

The import of this issue will only increase as the volume of same-sex marriage increases within the state. No other parent should be put in the heart-wrenching position that Michael Conover is currently fighting.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

Wesley D. Blakeslee

Arthur F. Fergenson

Daniel F. Goldstein

Caroline Griffin

Elizabeth Kameen

Ericka King

Stephen Meehan

C. William Michaels

William Reynolds

Norman Smith

Tracy L. Steedman

H. Mark Stichel

Ferrier R. Stillman

Anwar L. Young

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.