By Jill H. Breslau

Janice and Margaret were in a committed same-sex relationship for 18 years. When they decided to end it, they were unable to come to an agreement about “their” daughter, Maya.

Both had been equally involved in her care as moms. But their status as parents was far from equal in the eyes of the law. Maya had been adopted from a country which does not permit same-sex couples to adopt but does allow single women to adopt. Therefore only Janice had legally adopted Maya.

After the break-up of the couple, Margaret wanted to maintain her relationship with Maya; but Janice resisted. After a trial, the court found that Margaret was entitled to visitation as a parent in fact, if not in law, and that it would be in the best interest of the child to permit visitation.

Court of Appeals

But the Maryland Court of Appeals reversed. Under Maryland law, said the court, there is no such thing as a “de facto parent”. Margaret was just a third party seeking visitation against a legal parent who did not want it. A legal parent possesses the constitutional rights to govern the care, custody and control of his or her child. A putative de facto parent who seeks visitation rights over the objection of a legal parent is a third party, and, as is required of other third parties w ho seek visitation rights, must demonstrate exceptional circumstances as a prerequisite to a court’s consideration of the best interests of the child. The court would only grant visitation to Margaret if Janice was unfit, or if sufficient “exceptional circumstances” existed that would justify awarding visitation.

If you think that all of this could be avoided simply by having both partners adopt the child, even that is not clear. Whether same-sex couples may adopt in Maryland remains unsettled. Once again we are struck by the difference in the real world and the legal world. This decision seems to be very technically and legally reasoned. But it lacks the feelings of real world experience of children and alternative families. The opinion cites the law correctly but what about the child’s best interest in losing access to one of her moms?

The Dissent

“One thing is clear: the Maryland legislature is silent when it comes to the question of visitation with children when a non-traditional family is involved,” said the dissenting judge.

He points to Wisconsin as having a test he finds appropriate:

1. the biological or adoptive parent must have consented to, and fostered, the petitioner’s formation of a parent-like relationship;
2. the petitioner and the child must have lived together in the same household;
3. the petitioner must have assumed the obligations of parenthood by taking significant responsibility for the child’s care, education, and development, including contributing to the child’s support, without expectation of financial compensation (a petitioner’s contribution to a child’s support need not be monetary); and
4. the petitioner must have been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

The dissent said, “A party who has demonstrated that he or she is a child’s de facto parent should be entitled to visitation rights if such a result is in the best interest of the child.”

Janice M. v. Margaret K., No. 122, Sept. Term, 2006 (Maryland Court of Appeals, May 19, 2008)