- The Magazine
More than 45 organizations and legal scholars are coming to the support of a Maryland transgender man embroiled in a bitter child custody case who is appealing two lower court decisions that refuse to recognize his relationship with the son he has helped raise from birth.
The organizations filed seven friend-of-the-court briefs in the Maryland Court of Appeals, all supporting Michael Conover in his fight to be recognized as a legal parent to his son, Jaxon. The crux of the case concerns whether Maryland will give equal legal recognition to parents who are part of a same-sex couple but have no biological or adoptive ties to their children.
Prior to his gender transition, Michael Conover was in a committed same-sex relationship for nearly a decade with Brittany Eckel (who had previously taken Conover’s last name when they were married). In 2009, the couple decided to have a child together by artificial insemination, using an anonymous sperm donor. When Eckel gave birth to their son Jaxon, the child was given Conover’s last name. A few months later, the two wed in the District of Columbia, where same-sex marriage had recently been legalized. The two raised their son together for two years, but later separated. In their divorce case, Conover asked for visitation rights, but Eckel claimed they had no children together. The trial court ruled that because Conover has no biological or formal adoptive relationship with Jaxon, he is considered a legal stranger. In August 2015, the Maryland Court of Special Appeals upheld the trial court’s decision.
Under Maryland law, when a woman who is not married gives birth to a child, a person who then marries the mother and acknowledges their parentage of the child is considered the child’s other legal parent. But both of the lower courts ruled that this statute did not apply to Conover. Rather, they relied on a legal decision, Janice M. v. Margaret K., issued prior to the legalization of marriage equality. In that case, the Court of Appeals ruled that when only one member of a same-sex couple adopted a child, she was the child’s only legal parent, even though the other member of the couple had been a “de facto parent” of the child in question.
FreeState Legal, which is representing Conover, then filed a petition for certiorari in October, asking the Maryland Court of Appeals, the state’s highest court, to review whether the same presumption of legal parentage made for heterosexual couples applies to child custody cases involving same-sex couples, and whether the court’s previous decision in the Janice M. case should be reconsidered. The Court of Appeals is scheduled to hear arguments in the case on April 5 in Annapolis.
The seven amicus briefs supporting Conover’s request for visitation argue, in varying forms, that courts should recognize Conover’s relationship with the son he helped raise, regardless of a lack of biological or official adoptive ties. One of the briefs, from over 30 professors of family law, notes that even though Jaxon was born into “a family form unanticipated in 1968” — when Maryland’s laws regarding legal parentage were written — a proper interpretation of those laws today should “recognize that Jaxon has two legal mothers.” Similarly, a brief from Lambda Legal argues that the lower courts’ rulings are “out of step with the legal treatment due families of same-sex partners,” particularly after the legalization of marriage equality, both in Maryland in 2012, and nationwide, following the June 2015 Supreme Court decision in Obergefell v. Hodges.
Some of the other organizations writing briefs include the National Association of Social Workers, Transgender Law Center, the National Center for Transgender Equality, the American Academy of Assisted Reproductive Technology Attorneys, and the Women’s Law Center of Maryland, which was joined by Planned Parenthood of Maryland in issuing a brief arguing that by enacting marriage equality for same-sex couples, Maryland’s legislature and electorate intended to “protect same-sex parents’ rights and interests and thereby promote stability for their children — irrespective of biology or reproductive capabilities.”
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