Metro Weekly

Maryland court decides in favor of de facto parentage for same-sex couples

Court finds spouses of unmarried mothers who help them raise their children should have parental rights recognized

Michael Conover with his son Jaxon (Photo courtesy of FreeState Legal).
Michael Conover with his son Jaxon (Photo courtesy of FreeState Legal).

On Monday, the Maryland Court of Appeals, the state’s highest court, ruled unanimously in favor of a transgender man seeking to be granted visitation rights with the son he helped raise with his former partner. In its ruling, the court found that de facto parents — those who lack a biological or adoptive relationship with their children — must be legally recognized as parents of the child in question when issues concerning custody or visitation rights arise.

In the case in question, Michael Conover, was suing his former partner Brittany Eckel (previously Conover) over custody of their son Jaxon. Prior to his transition, the two had been in a same-sex lesbian relationship for nearly a decade. The couple decided they wanted to have children, and Eckel was artificially inseminated using sperm by an anonymous donor, becoming pregnant with and giving birth to Jaxon, who they raised together. Because the two were prohibited from marrying in their home state of Maryland, they decided to get married in the District of Columbia instead. The two later separated, but when Conover asked for visitation rights, Eckel claimed they had no children together. Because Conover had no direct biological ties to Jaxon, and had not formally adopted him, the court rejected his request for visitation rights. Conover’s lawyers with FreeState Justice subsequently appealed the decision.

The trial court’s decision was blasted by LGBT advocates as unfair, given that Maryland has a statute that grants parental recognition and legal status to the heterosexual male spouses of women who were unmarried when they gave birth to the child, even if the male spouse and the child do not have biological or adoptive ties. But that presumption of parentage, also known as de facto parenthood, was not extended to same-sex couples. Rather, as in the case of Conover, the courts relied on a 2008 ruling from the Maryland Court of Appeals known as Janice M. v. Margaret K., in which it refused to recognize the non-biological mother as a parent because same-sex marriage, at the time, was not legal in the state. But Monday’s decision officially overturns the precedent set by that case. 

“We overrule Janice M. because it is “clearly wrong” and has been undermined by the passage of time,” Judge Sally Adkins wrote in the decision on behalf of the court. “…We hold that de facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis. The best interests of the child standard has been ‘firmly entrenched in Maryland and is deemed to be of transcendent importance.’ … With this holding we fortify the best interests standard by allowing judicial consideration of the benefits a child gains when there is consistency in the child’s close, nurturing relationships.”

The opinion also got in a dig at Eckel, who has since remarried to another lesbian, finding 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.”

The case now returns to the Circuit Court for Washington County in Hagerstown, Md., where Conover will seek visitation rights as a legally recognized de facto parent. 

“With the Court’s deicision today, Maryland family law now recognizes the lived reality of LGBTQ families,” Jer Welter, Conover’s attorney and the deputy director of FreeState Justice, said in a statement. “This decision strongly affirms that children’s relationships with their parents are entitled to legal protection — even if their parents are not parents by blood or adoption.”

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