Although the Supreme Court’s endorsement in 2015 of the right of same-sex couples to marry clarified the status of same-sex couples—or at least their options vis-à-vis formal status—it left open a variety of questions about the formal parent-child relationships in same-sex-couple families. Indeed, while questions of adult-relationship status and questions of parent-child status sometimes have overlapping issues, the law on each topic has developed almost strangely independently.
Parentage issues—the determination of which adults have rights and obligations with respect to which children—arise in a variety of contexts in the age of the new family. In one iteration, adults who have served functionally as parents to children without the benefit of any formal legal status have sought protection under the so-called de facto parentage doctrine. The doctrine has been controversial; some state courts have endorsed it, while others have rejected it. (I have covered some of these developments here, here, here, here, and here.) But in a recent case, Conover v. Conover, the highest court of Maryland reversed itself—allowing a claim of de facto parentage after resoundingly rejecting the doctrine just eight years ago. While no single case signals a trend, the most recent developments have been more sympathetic—and more protective of—the rights of the functional parent.
Michelle v. Brittany
Of necessity, de facto parentage cases arise on similar facts—a claim to parentage by one adult over the objection of a recognized legal parent. This is because without parentage status, the adult seeking protection has no standing to seek visitation or custody without first proving the unfitness of the legal parent. From the law’s perspective, that would be like allowing a stranger to challenge a fit parent’s rights, which would violate the federal Constitution even if a state purported to allow such a challenge.
Michelle and Brittany became romantically involved in 2002. Over the years, they discussed plans to have a child and, together, selected an anonymous sperm donor. Brittany became pregnant and gave birth to a donor-conceived child, Jaxon, in April 2010. Brittany was identified on the birth certificate as Jaxon’s mother, and no one was identified as his father. The parties married several months after Jaxon’s birth.
A year after the marriage, the parties separated. (Apparently irrelevant to the parentage dispute in this case is that Michelle transitioned to a male identity sometime after the divorce and now goes by Michael.) For the first ten months, Brittany had custody, but permitted Michelle to visit Jaxon on weekends and to have him for overnights. But then, Brittany prevented further visits.
In the divorce proceeding, Brittany stated that there were no children of the marriage (a standard question that must be answered in a divorce complaint). Michelle filed an answer in which she requested visitation rights with respect to Jaxon. At a hearing on parentage, Brittany claimed exclusive parental status on grounds that only her name appeared on Jaxon’s birth certificate and that Michelle was a “third party” without standing to request visitation. Michelle provided evidence that she had helped choose the sperm donor, that Jaxon called her “Dada” (and that she performed a more “masculine” role in parenting), that Brittany had agreed in a “verified” writing to joint custody after the split, and that they did not pursue second-parent adoption because of the cost.
Michelle asserted two legal bases for parentage—statutory parentage based on the marital presumption and de facto parentage based on the functional parent-child relationship that developed between Michelle and Jaxon with Brittany’s consent.
The marital presumption was traditionally used to tie husbands to their wives’ offspring—most of the time, correctly, based on the biological tie. But in its modern iteration, the marital presumption has also been used to recognize same-sex spouses based on the mother’s presumed consent to share parentage and the spouse’s presumed intent to assume parental responsibility. Whether and how the marital presumption develops in the context of same-sex couples remains to be seen, but, in this case, the trial court refused to give Michelle the benefit of the marital presumption because Jaxon was conceived and born prior to her marriage to Brittany. The court also implied that the provision, which refers to parentage of a “father,” could not be applied to a female spouse.
Her second claim—that she had rights as a de facto parent—faced a significant barrier. The state’s highest court had rejected the very concept in a 2008 case, Janice M. v. Margaret K., in which it had rejected de facto parentage.
What Is De Facto Parentage?
Before same-sex couples had any legal rights that could give rise to statutory claims of parentage (for example, via the marital presumption), an alternative means to parentage or quasi-parentage developed in some states.
Wisconsin was the first to recognize de facto parentage. In a 1995 case, In re Custody of H.S.H.-K, the state’s highest court set forth a four-part test to determine whether a non-legal parent qualified as a de facto parent. Several states have adopted some form of the test. In its typical formulation, the doctrine requires not only that the co-parent function as a parent, but also that the legal parent consented to the creation of the functional parent–child relationship and actively fostered its growth. Although the doctrine varies from state to state, it typically does not give rise to rights equivalent to a legal parent’s. Rather, it allows the de facto parent to seek visitation, but not custody. Courts in states that recognize de facto parentage justify the intrusion into the legal mother’s constitutionally protected parental rights by pointing to her role in creating and fostering the relationship with the co-parent.
In 2005, the Washington Supreme Court recognized de facto parentage as a viable doctrine under state law. In In re Parentage of L.B., the court applied it in a dispute between a biological mother and her lesbian partner. The two women had agreed to become parents together, and one of them was inseminated and gave birth to a child. Under Washington law, only the biological mother had legal parent status, but the court recognized her partner as a de facto parent. The court acknowledged de facto parentage as an equitable remedy that could be used to fill statutory gaps in parentage law. The law at the time provided no other mechanism by which a lesbian co-parent could attain parental rights despite longstanding and deep involvement in parenting her partner’s child. In that case, the doctrine of de facto parentage allowed the court to award some residential time to the co-parent, despite her lack of legal parent status.
The court in L.B. reconciled the doctrine with the biological mother’s constitutionally protected parental rights by requiring, as one prong of the test, that the biological parent must have consented to and facilitated the relationship between the child and the nonparent. Proving oneself to qualify as a de facto parent is, the court wrote, “no easy task.” The status is “limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.”
In Maryland, however, the state’s highest court rejected the doctrine in Janice M. There, it held that a lesbian co-parent had no standing to seek custody or visitation unless she could prove that the biological mother was unfit or that exceptional circumstances existed to overcome her constitutionally protected parental rights. Under this impossibly high standard, Michelle was unable to gain any rights. The trial court found that Brittany was a fit parent and that there were no exceptional circumstances.
The Court of Special Appeals upheld the trial court on both rulings. It held that the marital presumption could not be given a gender-neutral construction in order to apply to a female spouse and that the Conover ruling did not permit recognition of a de facto parent.
The Ruling in Conover v. Conover
On appeal to the state’s highest court, Michelle met with better luck. The court reconsidered its ruling in Janice M. and reversed itself. Although the court discussed and was sensitive to the concept of stare decisis—the idea that courts should follow prior precedents in order to promote the predictability and consistency of law—but noted that it must sometimes yield to other principles. In this case, social change surrounding same-sex families has been breathtakingly dramatic. Just in the eight years since the Janice M. decision, same-sex couples gained the right to marry nationwide. They also have acquired parentage via a variety of doctrines—some constructed specifically to accommodate the needs of same-sex families. Second-parent adoption, for example, was recognized in part as an equitable workaround because same-sex partners, who were not allowed to marry until recently, could not take advantage of step-parent adoption.
De facto parentage is a doctrine borne of similar need. And, since that initial decision by the Wisconsin Supreme Court, a majority of states have recognized de facto parentage either by judicial decision or by statute (in some cases, passed specifically to override a judicial decision denying recognition of the status). The court in Conover took note of a trend towards greater recognition of de facto parents and took that into account when deciding to overrule Janice M. It also noted that family law scholars tend to support recognition of functional parent-child relationships, as well as recognition that a variety of factors may be as or more important than biology to the creation of a parent–child relationship.
The Maryland court thus overruled Janice M. “because it is ‘clearly wrong’ and has been undermined by the passage of time.” De facto parents are not “pure third parties,” but, rather, hold special status with respect to children that permits them to seek custody or visitation without first showing parental unfitness or exceptional circumstances. The court, specifically, adopted Wisconsin’s formulation of the test, which requires (1) that the biological parent “consented to, and fostered, the petitioner’s formation an establishment of a parent-like relationship with the child;” (2) that “the petitioner and the child lived together in the same household;” (3) that “the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation;” and (4) that “the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.” And once de facto parent status has been established, that parent is entitled to seek custody or visitation based on the best interests of the child, as she would be if she were recognized as a statutory parent.
Although some courts have noted that in-between statuses like de facto parent may not be as necessary in the age of marriage equality, they serve an important role, at a minimum, in recognizing the relationships that grew during the years before same-sex couples were allowed to marry or before the practice was commonplace. It may be that de facto parentage becomes less relevant over time, but, until that time, parents and children deserve to have their functional, bonded relationships protected by courts.