Maryland’s highest court rejected the doctrine of “de facto”
parenthood and narrowed the circumstances in which a
non-biological, non-adoptive parent can seek custody or visitation
after a break-up with the child’s legal parent. (Read the
Baltimore Sun’s coverage here and the Sun’s
courageous and correct editorial here.)
As any LGBTQ parent can tell you, the parent-child relationship is
not primarily based on biology or legality or even, necessarily,
time served as parent. (See Waymon Hudson’s beautiful post about
his foster son here.)
In the case before the Maryland Court, a lesbian who had adopted a
child from India sought to deny visitation rights to her former
partner, who had helped raise the child while they were together.
Two lower courts sided with the non-adoptive parent, granting her
“de facto parent” status, essentially allowing her to then make the
case for visitation and custody.
But the High Court saw otherwise, rejecting de facto parenthood as
an option in Maryland. Meanwhile, de facto parenthood is recognized
in 17 other states. (Check out Family Equality Council’s newly
released map and legal resource: “State-by-State: Co-Parent Custody/Visitation” for
more information.)
In reaction to the decision, some have commented that the
non-adoptive mother should have simply adopted the child, as well,
and avoid any issue. And while it’s true that some parents in our
community neglect to take the necessary and
available (key word — available) legal steps to
create relationships within their family and protect themselves, we
know the situation is often far from ideal when it comes to the
ability to take such actions.
Case in point: Maryland expressly prohibits discrimination in
adoption by gay individuals, but only allows for
second-parent adoptions in certain jurisdictions — not in all
jurisdictions and not by law.
Perhaps this couple lived in a jurisdiction that doesn’t allow
second-parent adoption. Perhaps they didn’t even know second-parent
adoptions were an option for them, or thought their union was safe
from the things that cause loving, committed relationships to break
up. Details like these have not been made public about the case,
but their possibilities are real and I’m sure resonate with a lot
of parents reading this out there.
If second-parent adoption was a viable option for this couple, then
perhaps they should have sought it out. What’s more important,
however, is that two lower courts found the parent-child
relationship between the non-adoptive mother and child strong
enough to grant her de facto status, with which she could argue for
at least some basic parental rights. Two bodies traditionally
granted the power to review situations and circumstances like these
and determine in individual cases the bests interest of children
affirmed this relationship. Chances are there’s a very confused
child out there who doesn’t understand why one mother is not
letting her see the other.
Regardless of the specifics of this case, the need for broader and
smarter family recognition laws and practices in this country is
real and immediate. The Family Equality Council will continue to
work for these laws and practices.
If you have a story like this one and are looking for answers or
resources, let us know. Send an email with your story to OUTSpoken@familyequality.org.