|
JOSHUA LYNSEN
Friday, May 23, 2008
Eight months after it ruled against same-sex marriage, Maryland’s high court has dealt gay residents another blow.
In an opinion released Monday, the Maryland Court of Appeals ruled that gays who partner with a parent are not automatically entitled to child visitation rights after the couple splits.
The 6-1 opinion overturns lower court rulings that two years ago granted a Baltimore County lesbian some visitation rights after she left her partner, the parent of a now 9-year-old girl.
“This is a disastrous opinion that will very negatively impact non-biological, non-legal parents, especially many who are in same-sex couples,” said Dan Furmansky, executive director of Equality Maryland.
In its opinion, the high court acknowledges the lesbian, identified in court records as Margaret K., is a “de facto” parent because she helped raise the child during the time she was partnered with Janice M.
However, the judges say the Baltimore County Circuit Court “erred in granting visitation” to Margaret on the grounds that she was a “de facto” parent without first finding that Janice was an “unfit parent” or that other “exceptional circumstances” existed to justify the decision.
The judges ordered the lower court to reconsider the case to determine if those circumstances exist.
But in the meantime, Furmansky said the decision “negates the de facto and crucial bond” that exists between Margaret and Janice’s child.
Jennifer Fairfax, the attorney representing Margaret, said the judges noted in the opinion that their decision would have been the same had the case involved an unmarried straight couple.
“I’m not sure I’m convinced,” she said. “I think there’s still a lot of ignorance about gay and lesbian parenting of children, and I think too many people focus on the sexuality of the parents and not on the impact on the children. And I think this is a good example.”
According to court records, Margaret and Janice met in 1986. For most of the ensuing 18 years, they lived together in Janice’s home. When they separated in 2004, Margaret moved out of the home.
During the relationship, Janice repeatedly tried to become pregnant via artificial fertilization. After that failed, court records say, Janice adopted a girl in 1999.
Margaret played no role in the girl’s adoption, according to court records, but helped Janice raise her.
After the couple separated, Margaret initially saw the girl three to four times a week. According to court records, the relationship between Janice and Margaret later soured, and Janice placed several conditions on Margaret’s visitation.
By early 2005, court records say Margaret became dissatisfied with the visitation conditions and had her attorney contact Janice. In response, Janice denied Margaret any contact with the girl.
Margaret filed a complaint in Baltimore County Circuit Court, seeking visitation or custody. The judge denied Margaret custody, but noted visitation would be in “the best interests of the child.”
The Court of Special Appeals affirmed that decision in 2006, agreeing that Margaret was a “de facto” parent.
Maryland’s high court, which heard the case in May 2007, overturned those decisions Monday.
“It doesn’t surprise me,” said Barbara Babb, director of the Center for Families, Children and the Courts at the University of Baltimore. “Am I thrilled about it? No.”
Babb said the decision was “a straightforward constitutional analysis” and allowed “no room” to consider the child’s best interests.
“I think what they’re trying to do here,” she said, “is say, ‘We’re not creating another category of parenthood. You’re either a parent or you’re a third party.’”
Chief Judge Robert Bell joined with Judges Dale Cathell, Glenn Harrell, Lynne Battaglia, Clayton Greene and Alan Wilner to form the majority. Cathell, Harrell, Greene and Wilner banded together in September to uphold the state’s ban on same-sex marriages, 4-3.
Judge Irma Raker dissented in Monday’s opinion, noting that “de facto” parents in such circumstances “should be treated as the equivalent of a legal parent, with the same rights and obligations.”
Fairfax said that Margaret, who visited Janice’s child as the case progressed, lost all visitation rights as a result of Monday’s decision.
The ruling can be appealed to the U.S. Supreme Court, or both sides could take the dispute back to Baltimore County Circuit Court. Fairfax said this week that Margaret has not yet decided how to proceed.
“It really is unfortunate,” she said. “I’m hoping that the legislature will make a change and enact legislation that recognizes de facto parents and protects these kids.”
Joshua Lynsen can be reached at jlynsen@washblade.com.
|
 |
