Judges Call Case of Nonbio Mom Denied Parental Standing “Sad” and “Frustrating”

A Maryland court upheld a ruling denying parental standing to a nonbiological mom because she and the biological mom were not married at the time of their child’s birth—even though they had planned and were raising the child together, and eventually married.

Michelle Conover and Brittany Conover had been in a relationship since 2002, court documents tell us, although there had been some “breaks.” They planned to have a child together and Brittany conceived in 2009, with sperm from an anonymous donor. Michelle helped select the donor. The child, Zaxon, was born in April 2010, just a month after their home of Washington, D.C. began to issue marriage licenses to same-sex couples. Only Brittany was listed on the birth certificate, although Jaxon’s full name includes both women’s last names. The women married that September, but separated a year later. Brittany retained custody of their son, but allowed Michelle to visit until July 2012. In February 2013, Brittany filed for divorce, and Michelle filed for visitation shortly after. At some point (the court documents are unclear), they had moved to Maryland, and thus the visitation case was brought there.

Michelle testified that they did not do a second-parent adoption for financial reasons. Brittany said she knew when the child was four months old that she didn’t want to stay with Michelle and thus an adoption was “never an option.”

This is a set of bad circumstances layered onto what seems like a difficult relationship. Current Maryland law makes it worse.

A lower court found that Michelle was not Jaxon’s “father” and thus could not establish parental standing, even though Michelle argued that she met the paternity factors for a “father” under Maryland law. While a child born during a marriage is presumed to be the child of both parents, that didn’t apply here, said the court, where the child was conceived and born prior to the marriage. Michelle then took the decision to the Court of Special Appeals.

Why didn’t they marry before having their child? The court doesn’t say—but recall they would only have had a month to do so after it became legal in D.C., and Brittany was eight months pregnant at the time. If they’d begun planning when the marriage equality bill was signed in December 2009, they would have had three months until the bill was enacted, and four before the child was born. Longer, but still not a lot of time while also planning for a baby. If they had gone to another state to marry, they would have had a long trip to Connecticut, Iowa, or Massachusetts, the only places it was legal then.  I have to think, however, that if Michelle was the child’s biological father, even if unmarried, her status as a parent would be recognized by the state—and one of the judges seems to think this is possible, too, as you’ll see below.

Bottom line is that marriage shouldn’t even be a factor here. Maryland should recognize de facto parents, like four other states do and like 25 states plus D.C. do to a limited extent as a basis for custody and visitation.

Maryland, however, does not recognize de facto parents. Judge Robert Zarnoch of the Court of Special Appeals, writing the majority opinion against Michelle, cites the 2008 case, Janice M. v. Margaret K., where one mom had legally adopted their child and the other had not. Although they had raised the child together for nearly five years, the state did not recognize the non-adoptive parent’s standing when they separated, and refused to recognize any de facto parent, saying, “Where visitation or custody is sought over the objection of the parent, before the best interest of the child test comes into play, the de facto parent must establish that the legal parent is either unfit or that exceptional circumstances exist.” In neither Janice M. nor the current case did the court hold that the nonbiological/nonadoptive mom’s circumstances were “exceptional.”

One senses Zarnoch was not entirely at ease with the decision. He writes:

In conclusion, it must be said that this is a sad case; nor can Michelle’s desire for access to Jaxon be questioned. However, the present state of Maryland case law leaves us no choice.

He suggests that the legislature is better suited to sorting things out than the courts. His reluctance to do anything himself seems to go against the general tide of family law, however, where courts have often moved things forward for LGBTQ parents even when legislatures did not. Still, I’m not a lawyer so I don’t want to imply he had legal room to maneuver here when I don’t know if that’s true.

The concurring opinion by Judge Douglas Nazarian shows even more discomfort with the ruling and the fact that the legal tangles mean the court can’t even get to the question of the child’s best interests. He explains, “If Michelle is a parent, her right to visitation depends on Jaxon’s best interests, and the court presumes that his interests are furthered by some sort of ongoing relationship with his non-custodial parent.” If she is not recognized as a parent, however, the case ends there, without any evaluation of the child’s interests. Nazarian writes:

I agree with the majority that this case is sad, but I would add the adjective “frustrating.” I have no idea whether Michelle Conover should have visitation with Jaxon—the evidence adduced in the circuit court creates, at the very least, a fair dispute about whether visitation would be in Jaxon’s best interest. But unlike every other divorce case with child visitation in dispute that I have encountered in my time on this Court, we don’t, and can’t, even reach the question of Jaxon’s best interests. I agree with the majority that Janice M. v. Margaret K. . . compels this conclusion and that we, as our State’s intermediate appellate court, are not at liberty to hold otherwise. However, the General Assembly’s intervening recognition of same-sex marriages . . . raises doubt about whether a divorcing same-sex spouse should begin the visitation analysis as a third party to her non-biological non-adopted child, as the same-sex partner in Janice M. did and Michelle does here.

Nazarian also questions what might have happened if Brittany had sought child support from Michelle, thus pitting Michelle’s lack of parental standing against the “express legislative policy that it is ‘socially necessary and desirable’ to secure the same support, care, and education for children born out of wedlock as those born within marriages.” The court might then have considered this as “exceptional circumstances” in which Michelle might have been acknowledged as a “father.” Fact is, Nazarian notes, she meets three of the four qualifications for fatherhood—marriage aside—under Maryland law:

A child born to parents who have not participated in a marriage ceremony with each other shall be considered the child of his father only if the father

(1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings;

(2) Has acknowledged himself, in writing, to be the father;

(3) Has openly and notoriously recognized the child to be his child; or

(4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.

Michelle fits items 2, 3, and 4—especially since the court also notes that Jaxon sometimes called her “Dada” or “Daddy,” and on occasion, Brittany referred to Michelle as Jaxon’s father.

Yes, marriage equality is on the whole a very good thing. It should not, however, come at the cost of only recognizing families with married parents. At the very least, we should recognize the parenthood of those, like Michelle, who had planned a child with another person from the start, but whose marriage happened to come later.

Michelle seems to have been clearly involved in Jaxon’s conception and care. There’s no doubt in my mind that she should be considered Jaxon’s parent. The fact that the court can’t allow this is a testament to the need for the law to change to meet the needs of families today. As Nazarian wrote, “The greater potential for this sort of dichotomy in the context of a same-sex divorce confirms my instinct that the historic treatment of same-sex parenthood is no longer up to the task.”