Court Denies Parental Status Of Ex-Partners

By Lisa Rein
Washington Post Staff Writer
Tuesday, May 20, 2008

Maryland's highest court ruled yesterday that someone who lives with and helps raise a child before a relationship with the child's legal parent dissolves has virtually no rights to custody or visitation, in a decision that disappointed advocates for same-sex couples.

By reversing two lower courts that ruled in favor of a Baltimore County woman who sought custody or visitation rights with a girl adopted by her ex-partner, the Court of Appeals held that Maryland does not recognize de facto parenthood. Instead, the court ruled, the person claiming to be a de facto parent must prove "exceptional circumstances" to gain visitation rights over a legal parent's objection.

"Even if we were to recognize some form of de facto parenthood," the majority in the 6 to 1 decision wrote, "the real question in the case . . . will remain, whether . . . a third party, non-biological, non-adoptive parent . . . should be treated differently from other third parties. We have not been persuaded that they should be."

The court returned the case to the Baltimore County Circuit Court to decide, using the new standard, whether the woman who brought the case, referred to in court papers as Margaret K., should have visitation rights with the girl, Maya.

The ruling disappointed gay rights activists, who were also rebuffed by the high court last year in their effort to overturn Maryland's ban on same-sex marriage.

"This child had two mothers," said Nancy Polikoff, author of the book "Beyond (Straight and Gay) Marriage" and a law professor at American University. "The court should not be in the business of denying the reality of a child's family."

In her dissent, Judge Irma S. Raker wrote that visitation decisions for de facto parents should be guided solely by the child's best interest. She noted that several states, including Massachusetts and Colorado, have established legal parity for de facto parents.

In recent years, gay rights and civil liberties groups have pushed for more legal rights for partners who take on parental roles, as more gay and unmarried heterosexual couples raise children. The D.C. Council last year created a status for de facto parents, who can file for custody and visitation rights if they had lived with and cared for the child, the legal parent had consented to the relationship and a parent-child bond had developed. Virginia law does not address the subject.

The case of Margaret, a teacher at Howard Community College, and Janice M., an administrator there, began in 2004, when the couple's 18-year relationship ended and Margaret moved out. Five years earlier, Janice had adopted on her own a baby girl from India, which does not allow same-sex couples to adopt.

According to court papers, Margaret continued to see Maya after she and Janice separated, although the visits gradually became restricted at Janice's request. Margaret sued for visitation and custody in Baltimore County Circuit Court in 2006. The court found that Margaret was a de facto parent, a right first recognized in Maryland in 2000 in another case. She won visitation rights, but not custody, on the grounds that it was in Maya's best interest.

To keep or expand her visitation, Margaret must not only show that contact with Maya is in the child's best interest but also demonstrate other reasons, such as parental unfitness on the part of Janice.

Margaret's attorney, Jennifer Fairfax, said her client is "devastated" by the court's ruling but predicted that the trial court will strongly weigh what she described as her client's close bond with Maya.

Janice's attorney, Cynthia Young, said the bond between Maya and Margaret might no longer exist. "The child is expressing that she doesn't want to visit with this person," Young said. Even if there is a bond, Young said, Margaret will have a high bar to jump to retain visitation rights.

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