`De facto' parent's visitation on trial

High court to hear plea of ex-partner to see adopted girl

May 30, 2007|By Andrea F. Siegel | Andrea F. Siegel,SUN REPORTER

From morning to bedtime for six years, Margaret helped Janice raise her daughter - preparing breakfast, picking her up at school, ferrying her to medical appointments and bathing her.

The lesbian couple's relationship then soured, and their war over Janice's adopted child has landed in Maryland's highest court, where it has the potential to spell out the legal standing of thousands of people who help raise their partner's child.

The Court of Appeals is being asked today to decide if Margaret was a parent in practice - even though by law she has no ties to the girl, named Maya - and if that could trump the legal mother's right to control who has access to her child.

"There is an evolution going on for these legal strangers," the people who are not parents but serve as parents, said Jennifer L. Rosato, a Drexel University law professor specializing in family issues. "The trend is going from legal stranger to a recognition of their role."

That, she said, is because whether it's step-parents or unmarried partners, "these families are actually acting like families in the legal sense" and the courts are pressed to respond to changes in society.

This case comes to Maryland's top court amid others with the potential to legally redefine family ties outside of traditional marriage. Earlier this month, the court ruled that a baby born of donated eggs to a surrogate mother need not have any legal mother. And the court has yet to decide if same-sex marriage can take place in Maryland.

Nationally, laws governing families are in flux, as state laws change and as some create domestic partnerships. New Jersey and Maine are among states that recently let a "de facto parent" obtain custody and visitation. A Vermont court ordered visitation in a case involving the child of people in a same-sex civil union. The U.S. Supreme Court said grandparents have no automatic right to visitation, no matter how much they want to be included in the grandchildren's lives.

The Maryland case began in 2005 in Baltimore County when Margaret filed suit against Janice for custody and visitation.

Partners for nearly 20 years, the women failed in their efforts to have a baby through artificial insemination of Janice. Maya was adopted in 1999 from India, which does not allow same-sex adoptions. Margaret could have adopted her later, said Cynthia E. Young, one of Janice's lawyers. The women's full names have been kept confidential to protect Maya's identity.

The couple split in 2004. As their relationship grew increasingly strained, Janice set terms for Margaret to have visits with Maya. Margaret sued the next year. When Judge Michael J. Finifter ruled that Margaret functioned as a parent and ordered visitation, Janice appealed and lost. Both sides asked the top court to take the case.

Margaret claims that she acted as a parent to Maya and should have the right to visitation. A decision favoring Margaret could expand visitation rights for "de facto parents" - people who take on parental roles and develop a parent-child bond with the child of a mother or father who encouraged that relationship.

Janice contends that her ex-partner was a godparent and caregiver, but hardly a second mother. A ruling taking Janice's position could relegate people who function as parents to the same level of rights as grandparents or others seeking custody or visitation.

The difference is significant. It says how high the standards are for someone who is not a biological or adoptive parent to win the right to stay in the child's life.

Janice maintains that a partner should have the far more difficult burden of showing "exceptional circumstances" - essentially, that a parent's right to raise a child as she sees fit is harming the child - while Margaret says the person who can prove he or she functions as a parent should have visitation as long as it in the "best interest" of the child, a lower standard.

John F. Fader II, a University of Maryland law professor and retired Baltimore County Circuit Court judge, said he believes the Court of Appeals agreed to hear the case so that it can do a "complete review of visitation" rules to govern the growing number of people who fall into the category of acting as a parent without legally being the parent.

"The rules are how this is going to shake out. They will say when you are considering this issue, here are the factors you are going to consider," he said.

David Rocah, a staff attorney for the American Civil Liberties Union Foundation of Maryland, said the outcome of this case is of "critical concern" to gay and lesbian families. The ACLU is among several organizations that have weighed in for Margaret.

"A child does not know if her parents have a legal relationship or not and doesn't care," Rocah said.

Same-sex couples cannot wed in Maryland - but they can adopt. That means one partner must adopt the other partner's child for the child to legally have two parents. But frequently they don't. Margaret, for example, did not adopt Maya, said Jennifer S. Fairfax, a lawyer for Margaret.

Janice was the decision-maker, not Margaret, argued Young, Janice's lawyer. She characterized much of the day-to-day help Margaret provided as "all the things an au pair would do."

The Family Research Council, which promotes traditional marriage and families, filed a legal brief siding with Janice, saying that it is wrong for courts to micromanage parents' decisions short of showing the child is being harmed or the parent is unfit.

"The bottom line is whether the court is going to respect the fundamental constitutional right of a parent to decide what to do with her child," said Christopher R. Stovall, a lawyer for the group.

andrea.siegel@baltsun.com

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