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Maryland Court Considers Visitation Rights of Same-Sex Couples

October 29, 2015 By Gerald W. Ueckermann, Jr.

The Maryland Court of Special Appeals recently entered into what it described as the “unchartered Maryland waters” surrounding the child visitation and custody rights of same-sex spouses.  In Conover v. Conover (decided August 26, 2015), the court considered a same-sex spouse’s claim for visitation with a child born to her spouse prior to their marriage.  In Conover, Brittany and Michelle began a relationship in July 2002.  In 2009, Brittany was artificially inseminated.  Michelle helped choose the anonymous sperm donor, who had characteristics similar to her own.  In April 2010, Brittany gave birth to a son, Jaxon.  At the time, Michelle and Brittany lived in the District of Columbia, which legalized same-sex marriage one month before Jaxon was born.  Brittany and Michelle were married in the District of Columbia in September 2010, approximately six months after Jaxon’s birth.
Brittany and Michelle separated in September 2011 and, in 2013, Brittany filed a complaint seeking a divorce from Michelle.  Michelle sought visitation with Jaxon in the divorce action.
After holding a hearing, the Circuit Court for Washington County denied Michelle’s request for visitation.  In doing so, it found that Maryland law did not recognize Michelle as Jaxon’s parent because: (1) Michelle was not Jaxon’s father; (2) Jaxon was not conceived or born during Michelle’s marriage to Brittany; and (3) Michelle had not adopted Jaxon.  This meant that Michelle was a “third party” for the purpose of her visitation claim.  As a third party, she was required to show that Brittany was an unfit parent or that exceptional circumstances existed that justified awarding her visitation over Brittany’s objections.  The court found that Michelle had not met this extremely high burden.  In contrast, if Michelle was the biological or adoptive parent of Jaxon, or if Jaxon had been born during the marriage, the court could have awarded Michelle visitation if it found such visitation to be in the child’s “best interests,” a considerably lower standard than the “exceptional circumstances” standard that was found to apply.
On appeal, the Court of Special Appeals affirmed the ruling, largely for the same reasons relied upon by the trial court.
In a concurring opinion, Judge Nazarian indicated that although he believed the court’s opinion was compelled by a 2008 opinion of the Court of Appeals, that the 2012 Maryland statute legalizing same-sex marriage raised doubts about whether that 2008 opinion was still good law.
Given Maryland’s legalization of same-sex marriage in 2012, and its recent legalization nationwide by the Supreme Court, more children will undoubtedly be born to married same-sex couples in the future, which may limit the number of cases to which the Conover decision will apply.  Nevertheless, Conover is one of the first Maryland cases considering the rights of same-sex spouses, and there will certainly be many more