By: Mary Ellen Flynn, Esq.
Email: [email protected]
According to a recent case before Maryland’s intermediate appellate court, the Court of Special Appeals, a non-biological parent isn’t a “parent” even if the decision to conceive the child was mutual and the couple married after the child was born.
After reading the opinion in this case, I believe that the decision is inappropriate discrimination against gay parents, because unless science somehow changes this fact, whenever you have a set of gay parents, one of them will always be the non-biological parent. This case however never addresses that constitutional issue, because neither of the litigants (who represented themselves) raised that issue.
Conover vs. Conover
This case, Conover vs. Conover, reminds us that until the legislature acts or this case is overruled, it is imperative that the non-biological parent adopts his/her child even if married to the biological parent. In the Conover case, the Court decided that a non-biological parent, who was married to the biological parent, who helped arrange for the biological mom to be artificially inseminated, and who intended and did co-parent that child, had no parenting rights upon divorce. Rather the non-biological mom was seen as nothing more than someone with third-party rights to the child; and accordingly she would have to prove that the biological mom is unfit or there are exceptional circumstances that override the biological mom’s decision.
This opinion followed the precedent set by a 2008 opinion of the Maryland Court of Appeals when it created very stringent standards for parental status when it refused to recognize “de facto” parenthood for individuals who are not related to a child through biology or adoption. This has been true in Maryland regardless of how much the child considered the non-biological parent as his/her parent.
Maryland’s current strict definition of parentage (parent can only happen through biology or through adoption) is considered to be in the minority when compared to other states. In most states, when a child is born through donor insemination, the two people who are involved in arranging for the donor insemination and who intend to raise the children are considered the parents with equal rights to custody of that child, regardless of when or if ever those parents marry.
I say Maryland’s current definition of parentage because Maryland’s highest court, The Court of Appeals, is considering whether to accept an appeal of the decision of the Court of Special Appeals. The non-biological parent in the Conover case has requested the Maryland Court of Appeals to accept his appeal and overrule the opinion of the Court of Special Appeals. It will be interesting to see if whether the Conover decision remains as-is or if it is only applied to cases of when a child is born before the parents are married.
Schedule a Consultation with Maryland Child Custody Lawyers
Once child custody arrangements are in place, they usually remain so until the child reaches maturity. However, custody is always modifiable. There are cases in which one parent can re-open child custody proceedings if the parent can prove that the other parent is causing emotional or physical harm to the child, or it is no longer in the child’s best interests to maintain the arrangement that is in place.
Andalman & Flynn’s child custody lawyers in Maryland are experienced in enforcing and modifying existing custody arrangements. Whether on the basis of changes to your current situation, either pending or having occurred over time, or due to an emergency requiring immediate intervention, we can help you resolve your custody claims with an agreement that suits the needs of your children.
All cases involving custody, visitation and support of children are complicated. For more information, please click here: Divorce, Custody and Family Law. For a consultation with me or another one of our family law attorneys, please call (301-536-6685) or email me at [email protected].
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