In an action expected to impact thousands of children born into families headed by same-sex couples, the Maryland Court of Appeals on July 7 ruled that non-biological and non-adoptive parents who help raise children are eligible for recognition as ‘de facto’ parents with full parental rights.
The unanimous ruling came in response to a lawsuit filed by Washington County, Md., resident Michael Conover, who was denied visitation with a child he helped raise with his same-sex partner for the first two years of the child’s life.
Following the couple’s separation, two lower courts ruled in favor of the ex-partner’s refusal to allow Conover to visit the child on grounds that he had no parental rights because he was neither the adoptive nor biological parent of the child.
The Court of Appeals ruling on July 7 overruled the decisions by the lower courts and overturned its own 2008 decision that established the legal grounds for not recognizing people like Conover as a ‘de facto’ parent.
The appeals court remanded the case back to the Washington County, Md., Circuit Court, which must now rule on the merits of whether Conover should be granted visitation rights based on the best interests of the child.
“With the court’s decision today, Maryland family law now recognizes the lived reality of LGBTQ families,” said Jer Welter, Conover’s attorney and the deputy director and managing attorney for the Maryland LGBT litigation group FreeState Justice.
“This decision strongly affirms that children’s relationships with their parents are entitled to legal protection – even if their parents are not parents by blood or adoption,” Welter said in a statement.
Welter told the Washington Blade that the Court of Appeals agreed to FreeState Justice’s request that the case continue as a same-sex couple matter despite the fact that Michael Conover had transitioned from a woman to a transgender man shortly after the visitation dispute came before the Washington County Circuit Court in Hagerstown, Md.
“Before his gender transition, Conover was in a committed same-sex relationship for nearly a decade with Brittany Eckel,” a statement released by FreeState Justice says. “In 2009, before marriage equality for same-sex couples was recognized in Maryland or any nearby jurisdiction, Conover and Eckel decided to have a child together by artificial insemination,” the statement says.
“They chose an anonymous sperm donor on the basis of physical resemblance to Conover, and when Eckel gave birth to their son Jaxon, the child was given Conover’s last name,” says the statement, which adds that the couple married in Washington, D.C. a few months later.
“They parented Jaxon together for the first two years of his life, but later broke up,” the statement says. “In their divorce case, Conover asked the court for visitation with their son, but Eckel claimed that they had no children together.”
The Washington County Circuit Court, which conducted a trial over Conover’s petition to obtain visitation rights, ruled that Conover was a “legal stranger” to Jaxon because he lacked a biological or adoptive relationship to the child.
Maryland’s intermediate appeals court, the Court of Special Appeals, upheld the Circuit Court ruling in August 2015.
The Maryland Court of Appeals decision on July 7 overruled the two lower courts and “recognized that a person who, like Conover, has been a ‘de facto parent’ to a child – who has raised a child together with the child’s other legal parent – has standing under Maryland law to have custody of or visitation with their child,” according to the FreeState Justice statement.
“I haven’t seen my son in four years because the state of Maryland didn’t recognize me as a parent,” Conover said in the statement. “I am elated that the state’s highest court has ruled that people like me should have our relationships with our children legally protected. This decision is a huge milestone for my family and for Maryland, and it gives me hope that I will get to see my son again very soon.”
R. Martin Palmer Jr., Brittany Eckel’s attorney, didn’t respond to a request by the Blade for comment on the appeals court ruling.
Palmer told the Washington Post that the appeals court “usurped” the role of lawmakers in defining a parent.
“Seeking to serve the needs of the LGBT community has created a bad situation for traditional families and their children,” the Post quoted him as saying.
Welter said he was hopeful that Eckel’s attorney will not attempt to raise Conover’s status as a transgender man as a factor for denying him visitation rights to Jaxon.
The Maryland Daily Record, however, reported in an April 6, 2016 story that Palmer raised the transgender issue in a legal brief he filed with the Court of Appeals earlier this year in an attempt to show that Jaxon would be subjected to bullying and ridicule by his school mates for having a transgender father.
“Children can be cruel (they are not politically correct) and on the playground and on the school bus they are going to taunt him: ‘Your father’s a ____. Ha Ha Ha,’” the newspaper quoted Palmer saying in his brief.
“They’ll sing it with a sing-song ring as children do,” the newspaper quoted the brief as saying. “They will bully him.”
According to the Maryland Daily Record, Palmer, an outspoken anti-abortion advocate, later apologized to Welter during one of the court hearings on the case for the words he used in the his brief.
“Palmer said he didn’t intend to disparage the man, who changed his name from Michelle to Michael, but to express the mother’s concern for the child’s welfare in the neighborhood,” the newspaper reported.
“We certainly hope and expect that the opposing side will not try to engage in a campaign based on prejudice against our client because of his gender identity,” Welter told the Blade. “What’s at issue is simply the best interest of the child.”