Md. top court recognizes ‘de facto’ parents in landmark decision

3.21.2016 BALTIMORE, MD- Jer Welter, Managing Attorney with FreeState Legal, specializing in LGBT cases. (The Daily Record/Maximilian Franz).

‘We are thrilled and very excited for our client and for same-sex couples throughout Maryland now that Maryland law recognizes the lived realities of their families,’ said Jer Welter, deputy director and managing attorney at FreeState Justice, the lawyer for a transgender man who successfully asked the Court of Appeals to recognize ‘de facto parenthood.’ (The Daily Record/Maximilian Franz)

In a landmark family-law decision, Maryland’s top court ruled Thursday that an adult intimately connected to a child’s upbringing can 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.

The Court of Appeals said its decision preserves biological or adoptive parents’ “fundamental right to direct and govern the care, custody and control of their children.”

However, the ruling also acknowledges that “a legal parent does not have a right to voluntarily cultivate their child’s parental-type relationship with a third party and then seek to extinguish it,” Judge Sally D. Adkins wrote for the high court.

In so holding, the Court of Appeals overruled its eight-year old decision in Janice M. v. Margaret K., in which the judges declined to extend de facto parental rights to unrelated individuals regardless of their relationship to the child unless the individuals could prove the parents’ unfitness or that exceptional circumstances existed to permit a third party to have custody or visitation in the child’s best interest.

The high court said Thursday its holding in Janice M. contravened the “universally accepted concept” that children “need good relationships with parental figures and they need them to be stable.”

The judges, while unanimous in their recognition of de facto parenthood, split 4-3 on a specific four-factor test for courts to determine if an individual qualifies as a de facto parent.

These factors require that the biological or adoptive parent “consented to, and fostered” the formation and establishment of the “parent-like relationship with the child;” that the de facto parent and child lived together in the same household; that the de facto parent “assumed obligations of parenthood,” such as the child’s care, education and development without expecting payment; and that the de facto parent was in the parental role for enough time to establish “with the child a bonded, dependent relationship parental in nature,” the high court said.

Back to trial court

The Court of Appeals rendered its decision in reviving the de-facto parent bid of the former same-sex partner of a child’s mother.

The former partner, Michael Conover, maintains that the decision to conceive and raise the child was mutual.

Michael and Jaxon Conover (Submitted photo)

Michael and Jaxon Conover (Submitted photo)

The lesbian couple married – but later divorced – after the boy’s birth, leading to an acrimonious custody and visitation fight in which only the biological parent, Brittany Eckel, was awarded custody and visitation with the youngster.

Conover, who never formally adopted the child, sought review by the Court of Appeals.

In its decision, the high court sent the case back to the Washington County Circuit Court for a hearing on Conover’s claim for custody and visitation of 6-year-old Jaxon.

“We are thrilled and very excited for our client and for same-sex couples throughout Maryland now that Maryland law recognizes the lived realities of their families,” said Conover’s attorney, Jer Welter, deputy director and managing attorney at FreeState Justice, a Baltimore-based advocacy group for the low-income lesbian, gay, bisexual and transgender community.

Eckel’s attorney, Hagerstown solo practitioner R. Martin Palmer Jr., did not return a telephone message seeking comment Thursday on the court’s decision.

‘Archaic’ holding

In overturning Janice M., the Court of Appeals noted the similarities of the facts of that case with those in the current dispute. In both cases, a same-sex couple was embroiled in a custody fight in which only one member was the biological or adoptive parent.

But the court added that “the passage of time and evolving events” have rendered Janice M. obsolete, most significantly Maryland’s legalization of same sex marriage in 2013.

“Our state’s recognition of same-sex marriage illustrates the greater acceptance of gays and lesbians in the family unit in society,” Adkins wrote.

The Janice M. holding “can be considered ‘archaic’ because it fails to effectively address problems typical of divorce by same-sex married couples,” Adkins added. “The same problems exist even when an unmarried same-sex couple separates.”

Family-law professor Nancy Polikoff praised the high court for having overturned its “so out of line” Janice M. decision and bringing Maryland into accord with the majority of states and the District of Columbia that recognize de facto parenthood.

These states include North Carolina and Kansas, which have historically been less tolerant than Maryland of same-sex relationships, said Polikoff, who teaches at American University’s Washington College of Law.

“The issue isn’t really a gay issue; it’s an issue of the child’s family,” added Polikoff, who submitted a brief to the high court on behalf of family-law professors from Maryland’s two law schools and other states.

“You have created a family for this child” that includes a de facto parent, she said. “You cannot just yank this child away.”

Dissension on test

Adkins’ opinion, which cites law-review articles written by Polikoff, was joined in its entirety by Chief Judge Mary Ellen Barbera and Judges Robert N. McDonald and Irma S. Raker, a retired jurist sitting by special assignment in place of Judge Michele D. Hotten, who had recused herself from the case.

Judges Shirley M. Watts and Lynne A. Battaglia split from one of the factors in the four-part test, saying in two-parent households both parents must have “consented to, and fostered” to creation of the de facto parent’s relationship with the child.

“Where there are two existing parents … permitting a single parent to consent to and foster a de facto parent relationship could result in a second existing parent having no knowledge that a de facto parent, i.e., a third parent, is created,” Watts wrote in a concurring opinion joined by Battaglia, who reached the mandatory judicial retirement age of 70 after the case was heard but was allowed to participate in the decision. “Such situations may result in a child having three parents vying for custody and visitation, and being overburdened by the demands of multiple parents.”

Judge Clayton Greene Jr., in a concurring opinion, said he would retain the requirement that a person seeking de facto parent status show exceptional circumstances to warrant custody or visitation with the child.

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 rendered its decision in Michelle L. Conover v. Brittany D. Conover, No. 79, September Term 2015.

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