Maryland High Court Decides Same Sex Child Custody Dispute

The Maryland Court of Appeals ruled yesterday in favor of an adoptive lesbian mother, denying visitation rights to her former partner.

Here are the facts in a nutshell: Two women, identified as Janice M. and Margaret K. by the court, met in 1986. After in vitro fertilization attempts failed, the couple adopted a child from India. India prohibits same-sex adoptions, so Janice adopted the child without her partner obtaining legal status. Presumably, Margaret relied on their long-term relationship to assume that no legal formalities were required. Besides, there is no Maryland case law or statute addressing whether same-sex parents may adopt children. But we know in practice that many Maryland same-sex couples adopt children, notwithstanding the lack of legal approbation. Here, both Janice and Margaret were acting as the child’s parents, dividing up responsibilities for caring for the child.

After an eighteen-year relationship, the couple separated in 2004. Janice kept the house and physical custody of the child, but Margaret continued to see the child three or four times a week. Not surprisingly, Janice soon wielded her legal status as the mother over Margaret, setting new conditions for visitation and requiring details as to who would be with the child during visitation. Reading between the lines, I suspect Margaret was the one that ended the relationship.

When the tensions reached a critical mass, Margaret then hired a lawyer, sued for custody, or in the alternative, visitation, in Baltimore County Circuit Court. The trial court agreed that Margaret was entitled to visitation rights based on the obvious: it is in the best interest of the child.

The Maryland Court of Appeals said there is no de facto parenthood in Maryland. Relying on the legal technicality of who was the child’s parent, the court found that “extraordinarily exceptional or compelling” circumstances or a finding that a parent is unfit would be needed to overcome a legal parent’s right to the care, control, and custody of a child.

This case is being prematurely viewed as a big win for the legal parents, much to the joy of every anti-gay group which supports this decision in Pavlovian fashion. But this case is not about whether it is right or wrong for people to be gay and raise children. It is about the best interests of the child. Accordingly, the trial court will now have to make a call as to whether the bond between someone acting in the capacity of a parent – with all the bonding that comes with it – is “extraordinarily exceptional or compelling.”

Janice’s lawyer, Cynthia E. Young, was quoted in the Baltimore Sun as saying that Margaret had “never had much interest in the child” until after the breakup. If this is true, then Margaret is the bad guy in all of this. But, based on my intuition after reading the facts, I doubt it.

Janice’s lawyer is also quoted by the Baltimore Sun as saying, “Part of my argument was that, ‘Gee, an au pair or teacher could petition for visitation if being a de facto parent is the standard. No one wants that to happen.”

But isn’t that a false comparison? Teachers and au pairs do not take on parenting responsibilities with the same force as someone in the role of a parent because parenting – with the grace of God – is a lifetime plan and is presented that way to the child.

Moreover, Janice agreed to raise a child with Margaret, sidestepping the social and legal impediments to such an arrangement. We can presume Janice believes these obstacles are false and unjust. Now, she gets a lawyer and hides behind the same legal barriers she ostensibly rejects. Towards what end? Denying a child the right to see a woman who has raised her as a parent out of apparent spite? Again, I’m reading between the lines and could be wrong about all of this. But it sure seems like another example of parents using their child as a pawn, in this case with the added wrinkle of a gay parent using the bias against gay couples as a sword in the game.

Memo to self: smart move never getting involved in domestic law.