Conover v. Conover

• Decision Date: 26 August 2015
• Docket Number: No. 2099, Sept. Term, 2013.,2099, Sept. Term, 2013.
• Citation: 120 A.3d 874,224 Md.App. 366
• Parties: Michelle L. CONOVER, v. Brittany D. CONOVER.
• Court: Court of Special Appeals of Maryland

224 Md.App. 366

120 A.3d 874

Michelle L. CONOVER

v.Brittany D. CONOVER.

No. 2099, Sept. Term, 2013.

Court of Special Appeals of Maryland.

Aug. 26, 2015.

Amy K. Gibson (Harbin & Gibson, LLC, on the brief), Hagerstown, MD, for appellant.

Charles B. Bailey, Hagerstown, MD, for appellee.

Panel: ZARNOCH, WRIGHT, NAZARIAN, JJ.

Opinion

ZARNOCH, J.

In this same-sex divorce case, the parties are divided over one spouse's right of access to a child conceived by artificial insemination and born before they were married. On one side is the biological mother, appellee Brittany Conover; on the other is the non-biological, non-adoptive parent, Michelle Conover. The key issue presented is whether Michelle may invoke Maryland's paternity laws to confer upon her parental standing to seek custody or visitation without interfering with the constitutional rights of the natural parent, Brittany, and without satisfying the stringent standards of Janice M. v. Margaret K., 404 Md. 661, 948 A.2d 73 (2008) and Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007). The Circuit Court for Washington County denied custody and visitation and this appeal followed. For reasons set forth below, we conclude that under the circumstances presented here, absent a change in Maryland's statutory or common law, the non-biological, non-adoptive parent cannot prevail over the objection to custody and visitation by the biological mother. Therefore, we affirm.

FACTS AND PROCEEDINGS

Michelle and Brittany began a relationship in July 2002, though Brittany acknowledges there were a number of “breaks.” The parties discussed having a child together and agreed that Brittany would be artificially inseminated from an anonymous donor arranged through the Shady Grove Fertility Clinic. The child was conceived in 2009. In March of 2010, the District of Columbia, where the parties lived at the time, began to issue marriage licenses to same-sex couples. On April 4, 2010, Brittany gave birth to a son, Jaxon William Lee Eckel Conover. The birth certificate listed Brittany as Jaxon's mother, but no one was identified as the “father.” On September 28, 2010, the parties married in the District of Columbia.

In September 2011, the spouses separated. From the date of separation until July 15, 2012, Michelle visited Jaxon and had overnight and weekend access. At some point in July 2012, Brittany prevented Michelle from continuing to visit Jaxon. On February 8, 2013, Brittany, pro se, filed a Complaint for Absolute Divorce, which did not mention Jaxon. On February 19th, Michelle, pro se, answered and stated that she wanted visitation rights with respect to Jaxon. On March 14, 2013, Michelle, pro se, filed a Counter–Complaint for Absolute Divorce, in which she again requested only visitation rights.

On April 30, 2013, the parties appeared at a hearing scheduled to determine Michelle's standing to seek access to Jaxon. Michelle was now represented by counsel. Although the pleadings were not amended, Michelle's counsel at times appeared to argue for custody.¹ Brittany, appearing pro se,argued that Michelle did not have parental standing because she was not listed on the birth certificate as a parent of the child, and that as a third party, she could not assert visitation rights as Jaxon's parent. Michelle asserted that she met the paternity factors for a “father” set forth in Md. Code (1974, 2011 Repl. Vol.), Estates & Trusts (“ET”), § 1–208(b)² and thus, she had standing. At the hearing, Michelle's counsel said that there were “constitutional issues” that supported this interpretation of ET § 1–208(b), but did not elaborate. The court requested supplemental memoranda. Michelle filed a legal memorandum in which no constitutional contentions were made.³ Brittany did not submit a memorandum.⁴

Circuit Judge Daniel P. Dwyer conducted an evidentiary hearing, taking testimony from both parents. Because Brittany appeared without counsel and lacked courtroom skills, Michelle testified generally without objection or cross-examination. Brittany had no such luck. Among the pieces of evidence elicited at the hearing were the following:

1) Michelle helped choose an anonymous sperm donor with characteristics similar to her own;2) Jaxon, at times, called Michelle “Dada” or “Daddy,” although Brittany later objected to the practice;

3) On occasion, Brittany referred to Michelle as Jaxon's father;

4) A hand-written document, dated July 16, 2012, was introduced; it stated that both parties “verified” that they agreed to “joint custody” of Jaxon “[t]the exact terms of which to be determined at a later date.”⁵

5) Michelle testified that the parties could not afford her adoption of Jaxon, but Brittany said that second party adoption was “never an option” because “I [knew] four months in to having a kid, that I did not want to be with her anymore because of a lot of abuse”;

6) Brittany took on the more “female” role in the relationship, while Michelle took on the more “masculine” role; and

7) Michelle conceded that Brittany was a fit parent.

At the conclusion of the evidentiary portion of the proceeding, Michelle's counsel argued that parental standing existed under ET § 1–208(b). She also argued that Brittany was estopped to deny that Michelle was the child's father. Finally, she went on to assert:

An alternative argument is that my client has standing for custody based on extra ... extraordinary circumstances. And ... and I'm not sure if you want me to go into that argument or not. Ah, but for a custody proceeding, a Court can consider custody to a third party or visitation to a third party if the Court finds that there are extraordinary circumstances. And I believe that this case screams extraordinary circumstances.⁶

Subsequently, on July 4, 2013, the circuit court issued a written opinion. Judge Dwyer found that Michelle was not Jaxon's “father” and therefore, she could not establish parental standing under ET § 1–208(b). The court took note of the common law and statutory presumption that a child born during the marriage was presumed to be the child of both, but concluded that the presumption was not applicable here, where the child was conceived and born prior to the marriage. It declined to place importance on the fact that the parents could not be legally married in Washington, D.C. at the time of conception, but pointed out that the couple could have been married before Jaxon's birth. Relying on Janice M. v. Margaret K., 404 Md. 661, 948 A.2d 73 (2008), the circuit court held that Michelle, as a “third party,” had to show that Brittany was unfit or that exceptional circumstances existed to overcome the biological mother's constitutionally protected liberty interest in the care, custody, and control of her child.

The Court said that “[t]here has been no showing of exceptional circumstances present, based on the factors and the testimony at the hearing.” According to the court's opinion:

Jaxon had visitation and contact with Defendant from birth until July 15, 2012. Plaintiff testified during the hearing that she allowed for visitation for a period of time between the minor child and Defendant because she thought that was in the child's best interests, but that has since changed. This is the crux of the fundamental right of a parent, to determine who is, or is not, in the child's best interest to be around.

In addition, the court said:

In this case, Jaxon is very young, and although there may be a bond between Defendant and Jaxon, as she was a de facto parent, that alone is not sufficient to establish exceptional circumstances. The child is still in a stable environment, with a fit parent, with almost a year of no contact with Defendant, and although an active participant in his life when he was born, after analyzing the factors, this Court finds that there is not enough evidence to establish sufficient exceptional circumstances in this case. Therefore, despite the best interest arguments made by the Defendant in favor of her having visitation of the minor child, there has been no finding of unfitness or exceptional circumstances which would allow the Court to overcome Plaintiff's liberty interest in raising her child.

Of Michelle's reliance on the paternity statute, Judge Dwyer said:

Although, it is certainly a creative argument, the statute is intended for children to claim parentage and rights to property after a parent has deceased, not for the parent to claim the child under it. Moreover, this Court finds that even under its broadest interpretation, the statute's application was intended by the legislature to be applied in instances of child support, not to establish standing for visitation and custody of a child. See Md.Code Ann., Fam. Law § 5–1005(a). The Defendant argues that although not a male, she has sufficiently satisfied three of the four criteria under § 1–208(b) to qualify as the minor child's father. § 1–208(b) specifically pertains to the parentage of an illegitimate child claiming his or her “father”, which the Defendant is this case is not. During the hearing the parties testified to the fact that the Defendant is in fact a female, had not adopted the child, and in no way was related to the child, thus not sufficiently establishing that she could be the “father” of the child.

The court added: “While there may have been an argument related to equal protection both under the U.S. Constitution and Maryland's Declaration of Rights for same sex parents, neither party argued that during oral argument nor in their supplemental briefs.” After the divorce was granted on October 21, 2013, Michelle appealed.⁷

QUESTIONS PRESENTED

We rephrase the questions presented as follows:⁸

1) Did the court err in finding that Michelle did not have parental standing under ET § 1–208 ?

2) Did the court err in denying Michelle visitation or custody?

We answer these questions in the negative and affirm the decision of the circuit court.

DISCUSSION

I. Did the court err in finding that Michelle Conover was not the parent of Jaxon?

In...