Conover v. Conover

Decision Date07 July 2016
Docket NumberSept. Term, 2015,No. 79,79
Citation146 A.3d 433,450 Md. 51
Parties Michelle L. Conover v. Brittany D. Conover
CourtCourt of Special Appeals of Maryland

Jer Welter (FreeState Legal Project, Inc., Baltimore, MD), on brief, for petitioner.

R. Martin Palmer (Law Offices of Martin Palmer, Hagerstown, MD), on brief, for respondent.

Nancy Polikoff, Professor of Law, American University Washington College of Law, Washington, DC, Katherine M. Wright, Venable LLP, Washington, DC, Amici Curiae for Maryland Family Law Professors and Additional Family Law Professors.

Michelle Daugherty Siri, Laure Ruth, The Women's Law Center of Maryland, Inc., Towson, MD, Steven M. Klepper, Diona F. Howard-Nicolas, Kramon & Graham, P.A., Baltimore, MD, Amicus Curiae for The Women's Law Center of Maryland, Inc. et. al. in support of Petitioner.

Ilona M. Turner, Alison E. Pennington, Transgender Law Center, Oakland, CA, Jennifer L. Kent, Joshua M. Ambush, LLC, Baltimore, MD, Amici Curiae for Transgender Law Center, the National Center for Transgender Equality, Our Family Coalition, PFLAG, Inc., COLAGE, and FORGE.

D. Jean Veta, Kelly Voss, Amber Charles, Kirsten Pullin, Alexander Trzeciak, Covington & Burling, LLP, Washington, DC, Amicus Curiae for National Association of Social Workers and its Maryland Chapter in support of Petitioner Michelle L. Conover.

David R. Roach, American Civil Liberties Union of Maryland Foundation, Baltimore, MD, Leslie Cooper, James D. Esseks, American Civil Liberties Union Foundation, New York, NY, Amicus Curiae for American Civil Liberties Union of Maryland Foundation and American Civil Liberties Union.

Susan C. Silber, Kenneth Sigman, Silber, Perlman, Sigman & Tilev, P.A., Takoma Park, MD, Susan L. Sommer, Omar Gonzalez-Pagan, Lambda Legal Defense and Education Fund, Inc., New York, NY, Amicus Curiae for Lambda Legal Defense and Education Fund, Inc.

Tassity Johnson, Francis D. Murnaghan, Appellate Advocacy Fellow, Baltimore, MD, Amici Curiae for American Academy of Assisted Reproductive Technology Attorneys, Public Justice Center, and American Academy of Adoption Attorneys in support of Petitioner.

Barbera, C.J.,* Battaglia, Greene, Adkins, McDonald, Watts, Raker, Irma S. (Retired, Specially Assigned), JJ.

Adkins, J.Child custody and visitation decisions are among the most serious and complex decisions a court must make, with grave implications for all parties. The dissolution of a non-traditional marriage just compounds the difficulties of this already challenging inquiry. This appeal arises out of a divorce between a lesbian couple, and involves a dispute over one spouse's right of access to a child conceived by artificial insemination and born before the couple was married. Petitioner calls upon us to revisit the concept of de facto parenthood and our previous decision in Janice M. v. Margaret K. , 404 Md. 661, 948 A.2d 73 (2008).

FACTS AND LEGAL PROCEEDINGS

Michelle1 and Brittany Conover began a relationship in July 2002. The parties discussed having a child 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. The couple gave birth to a son, Jaxon William Lee Eckel Conover (“Jaxon”), in April 2010. The birth certificate listed Brittany as Jaxon's mother, but no one was identified as the father. The parties married in the District of Columbia in September 2010 when Jaxon was about six months old.

In September 2011, Michelle and Brittany separated. From the date of separation until July 2012, Michelle visited Jaxon and had overnight and weekend access. At some point in July 2012, Brittany prevented Michelle from continuing to visit Jaxon. In February 2013, Brittany filed a Complaint for Absolute Divorce, stating that there were no children shared by the couple from the marriage. Michelle filed an Answer later that month in which she requested visitation rights with respect to Jaxon. In March 2013, Michelle filed a Counter-Complaint for Absolute Divorce, in which she repeated her request for visitation rights. Michelle did not request custody.

In April 2013, the parties appeared at a hearing in the Circuit Court for Washington County to determine Michelle's standing to seek access to Jaxon. 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 Jaxon, and that as a third party, she could not assert visitation rights. Michelle asserted that she had standing because she met the paternity factors for a father set forth in Md. Code (1974, 2011 Repl. Vol.), Estates & Trusts (“ET”), § 1–208(b).2 At the hearing, Michelle's counsel averred that there were “constitutional reasons” that supported this interpretation, but provided no further explanation. The Circuit Court requested supplemental memoranda. Michelle filed a legal memorandum in which no constitutional contentions were made. Brittany did not submit a memorandum.

The Circuit Court then conducted an evidentiary hearing and took testimony from Michelle and Brittany. The following pieces of evidence were elicited at the hearing:

• Michelle helped choose an anonymous sperm donor with characteristics similar to her own;
• Brittany took on the more “female” role in the relationship, while Michelle took on the more “masculine” role;
• Although Brittany later objected to the practice, Jaxon, at times, called Michelle “Dada” or “Daddy”;
• Brittany sometimes referred to Michelle as Jaxon's father;
• A document, dated July 16, 2010, written entirely in Brittany's handwriting was introduced. It stated that both parties “verified” that they agreed to “joint custody” of Jaxon with [t]he exact terms of which to be determined at a later date”;3
• Michelle testified that the parties considered initiating a proceeding for Michelle to adopt Jaxon, but they could not afford the cost.

At the conclusion of the evidentiary portion of the proceeding, Michelle's counsel contended 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 stated:

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.

In June 2013, the Circuit Court issued a written opinion concluding that Michelle did not have standing to contest custody or visitation. First, the court found that Michelle did not have parental standing. The court took note of the common law and statutory presumption that a child born during a marriage is presumed to be the child of both spouses, but concluded that the presumption was not applicable here as Jaxon was conceived and born prior to Brittany and Michelle's marriage. The court also found Michelle did not establish parental standing under ET § 1–208(b) because she was not Jaxon's father.” The court explained:

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 [L]egislature 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). [Michelle] argues that although not a male, she has sufficiently satisfied three of the four criteria under [ET] § 1–208(b) to qualify as the minor child's father. [Section] 1–208(b) specifically pertains to the parentage of an illegitimate child claiming his or her father[,] which [Michelle] in this case is not. During the hearing the parties testified to the fact that [Michelle] 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.

Although the Circuit Court stated that Michelle was Jaxon's de facto parent, it relied on Janice M. v. Margaret K. , 404 Md. 661, 948 A.2d 73 (2008) in concluding that de facto parent status was not recognized in Maryland.

Next, the court found that Michelle did not have “third party standing to contest custody or visitation. Relying on Janice M. , the 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 interest in the care and control of her child. Based on the testimony at the hearing, the court found Brittany to be a fit parent and that [t]here [had] been no showing of exceptional circumstances.” The Circuit Court denied Michelle's request for custody or visitation based on lack of standing.

After the divorce was granted, Michelle timely appealed the Circuit Court's order on visitation to the Court of Special Appeals. The Court of Special Appeals affirmed in a reported decision. Conover v. Conover , 224 Md.App. 366, 120 A.3d 874 (2015). First, the intermediate appellate court considered it inappropriate to address the issue of whether ET § 1–208(b) must be read to include women. Id. at 376, 120 A.3d 874. The court noted that whether the Fourteenth Amendment of the United States Constitution or the Equal Rights Amendment of the Maryland Declaration of Rights necessitate that the term father in ET § 1–208(b) be given a gender-neutral construction was an issue that was neither raised nor decided below. Id. Next, the court ruled that even if Michelle qualified as a father under ET § 1–208(b) despite her being female, the statute did not establish parentage for purposes of child custody and...

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