24 Oct 2017

Issues Unique to Same Sex Marriages

While the laws governing marriages and divorce are the same whether it is a heterosexual couple or same sex couple. However; several issues are unique to same sex couples, and the resolution to those issues are just beginning to be worked out in the judiciary. The most controversial issues involve custody, and the parents’ rights to their children.

In the case of Conover v. Conover; Michael Conover was a transgender man. The couple decided to have a child together and the partner became pregnant through artificial insemination. The couple raised the child together as parents for a few years. Obviously, Michael had no biological relationship to the child. When the couple split, the partner denied Michael all access to the child. Michael sued. The lower court found in favor of the partner, finding that Michael was not a biological or adoptive parent, and therefore had no legal relationship to the child. Michael appealed.

After years of denying any legal status to a “de facto” parent, the Maryland Court of Appeals unanimously found that an individual who qualifies as a de facto parent must be afforded the same rights as an adoptive or biological parent.

What is a De Facto Parent?

1. The biological or adoptive parent approved of and fostered the formation of a parent-child relationship between the child and non-biological and non-adoptive parent.
2. The non-adoptive/non-biological parent lived with the child.
3. The non-adoptive/non-biological parent assumed parent-like responsibility for the child’s nurture and care, without financial compensation.
4. The non-adoptive/non-biological parent developed a parent-child relationship with the child that is long-lasting, dependent, and well-bonded.

Whether an individual qualifies as a “de facto” parent is a judicial determination. Often time judicial decisions cost a lot of money and take a very long time. The child-parent bond is often damaged, and even destroyed, through the process of getting a judicial determination. The better practice would be for the “de facto” parent to adopt.

For years, the judiciary has denied “de facto” parents in heterosexual relationships any recognition whatsoever. It will be interesting to see how the recognition of “de facto parent” in our law shapes custody decisions in the future.

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