Md. high court reconsiders ‘de facto’ parentage in same-sex divorce case

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ANNAPOLIS – Maryland’s top court heard arguments Tuesday on whether the former same-sex partner of a child’s mother has a parental right 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.

Jer Welter, attorney for the former partner, urged the Court of Appeals to hold that an individual so intimately connected to a child’s birth and upbringing should be regarded as a “de facto parent” and entitled to visitation and a share of custody so long as the best interests of the child are served.

Several high-court judges appeared loath to recognizing de facto parenthood, as such recognition would require the court to overturn its 2008 decision in Janice M. v. Margaret K. in which it rejected de facto parenthood.

But the court did seem receptive to a finding of “exceptional circumstances” based on the extraordinarily close relationship between the former partner, Michael Conover, and 6-year-old Jaxon.

Judges Shirley M. Watts and Lynne A. Battaglia cited the agreement between Conover and the child’s mother, Brittany Eckel, to have Jaxon; Conover’s involvement in Jaxon’s earlier years; and Conover’s desire to restore their connection over the Eckel’s objection.

But Welter said a finding of exceptional circumstances, often used by grandparents seeking visitation rights with grandchildren, falls short of the parental rights Conover seeks and deserves.

Jaxon was “brought into this world by the volition of two people to create the child” by anonymous-donor insemination, Welter said. In addition, Conover and Eckel held themselves out to the world as Jaxon’s parents until their acrimonious divorce and Eckel’s so-far-successful legal fight against Conover’s bid for visitation, Welter said.

In August, the Court of Special Appeals cited Janice M. in upholding a circuit court ruling that Conover is a third-party who can visit the son against the wishes of Eckel only by showing Eckel is an unfit parent or that exceptional circumstances exist to override the mother’s choice about whom her child spends time with.

‘Sea change in law’

Welter argued Tuesday that the high court need not hold fast Janice M. in light of a “sea change in the law” regarding same-sex relationships, including Maryland’s recognition of marriage since January 2013 and the Supreme Court’s finding in June of a constitutional right to same-sex marriage.

Welter added that 25 states and Washington, D.C., recognize de facto parentage, compared fewer than 10 states when the Court of Appeals decided Janice M.

Conover and Eckel “made a decision together to have a child … with the shared intention that they would be his parents,” said Welter, 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.

Short of overturning Janice M., Welter argued the high court could deem Conover to be Jaxon’s parent under Maryland’s Estates & Trusts Article, which establishes that when an unmarried woman bears a child, the person who later marries the mother and acknowledges parentage of the child is his or her “father.” Welter said that “father” should be interpreted as co-parent, as Maryland law has moved toward gender-neutral language.

But Eckel’s attorney, R. Martin Palmer Jr., told the high court that Maryland’s estates and trusts law concerns primarily inheritance and is inapplicable to the parentage issue. He said any change in the law governing de facto parentage must be made by the General Assembly, not the Court of Appeals.

“This is a matter for the legislature,” said Palmer, a Hagerstown solo practitioner. “The legislature must be given its chance.”

But Judge Irma S. Raker said the high court need not wait for the General Assembly, where legislation addressing de facto parenting has stalled in recent years.

“Should we always wait” for the legislature “or do we decide the case before us?” said Raker, who was sitting in for recused Judge Michele D. Hotten.

Hotten did not public disclose the reason for her recusal.

Conover, a transgender man who transitioned after the litigation began, is referred to by his former name, Michelle, in court documents. Eckel is referred to in court papers with the surname Conover, which she dropped after the divorce in favor of her maiden name.

The Court of Appeals is expected to render its decision by Aug. 31 in Michelle L. Conover v. Brittany D. Conover, No. 79, September Term 2015.

Discrepancy in parenthood

Conover and Eckel began their relationship in 2002 and Jaxon was conceived seven years later. Eckel gave birth in April 2010, about a month after marriage licenses for same-sex couples became available in the District of Columbia. Eckel was the only parent listed on Jaxon’s birth certificate.

Eckel and Conover were married in Washington in September 2010. They separated about a year later: Conover was able to see Jaxon overnight and on weekends until July 2012, according to court papers.

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

At a hearing in Washington County Circuit Court to determine whether he could seek access to Jaxon, Conover alleged that he met the standards for paternity and could legally be considered the boy’s father.

But the court ruled against Conover, 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 Conover and Eckel were married.

Because Conover had never adopted him and was not biologically related to him, Conover 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 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 Eckel had sought financial support from Conover, he wrote, it’s likely Conover 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.