Nature, Nurture and the Making of a Parent: “De Facto” Parenthood Recognized by Maryland’s Highest Court:
Merriam-Webster’s Dictionary defines “parent” as “a person who is a father or mother: a person who has a child.” With the changes in the family dynamics and social customs of our society such as the role of grandparents in their grandchildren’s lives and the legalization of gay marriage, many define “parent” differently than Merriam-Webster, including Maryland’s highest court.
The Maryland Court of Appeals was recently faced with the case of Conover v. Conover, which involved two women: Brittany Conover, and a transgender man, Michael Conover, who at the time was a woman named Michelle Conover. In 2002, Brittany and Michael began their relationship and discussed raising a child. After much consideration, the couple decided to raise a child together and agreed that Brittany would be artificially inseminated via an anonymous sperm donor. In 2009, the child, Jaxon, was born. Brittany was the biological mother and was listed as the child’s mother on his birth certificate. Michael Conover, was not the biological or adoptive parent of Jaxon and was not listed his birth certificate. However, Michael was a part of the decision to birth the child and was heavily involved in Jaxon’s upbringing. In 2010, when Jaxon was six months old, the couple married in the District of Columbia. Just one year later, in 2011, the short-lived marriage began to deteriorate leading to the separation of the couple. However, because of the strong relationship between Michael and Jaxon, Brittany allowed Michael to have overnight and weekend access to Jaxon. In 2012, Brittany began to deny Michael access to Jaxon, and filed for divorce. Wanting to see the child, Michael petitioned for visitation rights with Circuit Court for Washington County.
On July 7, 2016, by way of unanimous decision, the Maryland Court of Appeals ruled that an adult who is not the biological or adoptive parent of a child and is not listed on the child’s birth certificate could be entitled to visitation and a share of custody so long as they have a “parent-like” relationship with the child. The court calls this a “de facto” parent.
This decision overrules the two lower courts and the previously controlling law of Janice M. v. Margaret K., in which the court held that in order to protect the biological or adoptive parent’s constitutional right to the “care, custody and control” of their children, “de facto” parents are not a recognized status and all third-parties are treated the same regardless the relationship they have with the child. All third parties were required to meet the high burden of demonstrating that the biological or adoptive parent is “unfit” or that there are “exceptional circumstances” establishing that it is detrimental to the child for them to stay in that parent’s custody.
Under this decision in Conover, the party seeking “de facto” parenthood no longer has to meet that high burden of establishing unfitness or exceptional circumstances. Rather, the “de facto” parent needs only to satisfy a four-part test;
“(1) That the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household’; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.”
After the party seeking “de facto” parenthood satisfies this test, the court will then determine whether it is in the child’s best interest for the “de facto” parent to have visitation or custody.
It is important to note that this decision does not undermine the biological or adoptive parent’s fundamental constitutional right to the “care, custody and control” of their child or put them on equal footing with the party claiming “de facto” parenthood. The biological or adoptive parent still holds their constitutional rights and the court has a very strong interest in protecting that. However, because the court also has a strong interest in the best interests of the child, it gives the third-party a chance by adopting the four-part test referenced above.
Maryland now joins the majority of states ranging from Alaska to West Virginia who recognize “de facto” parenthood. States are beginning to realize that “parenthood” is truly much more than a mother or father as described by Merriam-Webster’s Dictionary. It is the functional and meaningful relationship between the adult and the child. This realization is in part due to growing recognition and acceptance of same-sex marriage. Maryland’s highest court noted that failing to recognize “de facto” parenthood failed “to effectively address problems typical of divorce by same-sex married couples.” It is also in part, as seen in previous Maryland case law, due to grandparents raising their grandchildren and later being denied visitation or custody.
This decision will undeniably cause some potentially tricky situations and will unquestionably create more questions, including: Does this accommodate the best interests of the child?; Can everyone qualify as a “de facto” parent?; How will this decision affect families throughout the State of Maryland?; and, Will this cause a third parent in certain circumstances? It will not be a surprise to see the Maryland General Assembly address this issue next January to establish crucial limitations for this test in order to protect Maryland families from encountering those tricky situations. It will be interesting to observe the effects of this decision and how the courts and General Assembly address it.