In all but one way, the visitation-rights case that was decided in Baltimore County Circuit Court last week was typical of the legal wrangling that follows many a divorce - a couple splits up, the custodial parent doesn't want the ex to see the kid.
But as the case title immediately tells you, Larissa S. v. Melissa B. is unique: As a same-sex couple, they couldn't have married, so they couldn't divorce, either. But that also means their quarrel over visitation rights is breaking new legal ground in Maryland.
The one-time couple, whose last names have not been made public to protect the child's privacy, were together when Melissa had a son in 2001, as The Daily Record first reported on Tuesday. They broke up about three years later, but Larissa continued to see the boy until Melissa halted the visits in 2005. The battle headed to court, and last week, Judge Lawrence R. Daniels ruled that Larissa had been involved in "all aspects of parenting" the now-7-year-old boy and has the right to visit him.
I don't know if 7-year-olds still say this, or how this particular 7-year-old feels about it, but: "duh." All other things being equal, it seems that if his parents were a heterosexual couple that ended up divorcing, visitation would automatically be hammered out as part of a settlement. Not that every noncustodial parent gets or should get visitation, but at least there's a legal framework for it.
But without same-sex marriage - the Maryland Court of Appeals last year upheld a ban on it - gay couples are in murkier legal waters, as are any children they may have. Even if both partners have raised a child, only one may legally be recognized as his or her parent.
"That's the problem - in many cases, the children are in legal limbo," said Jennifer Fairfax, an adoption lawyer based in Silver Spring.
Fairfax previously represented Margaret K., the woman whose suit led to a Court of Appeals ruling in May that was decried by advocates of gay marriage and parenting. The court ruled that the state doesn't recognize "de facto" parents such as Margaret K., whose former partner, Janice M., had adopted a girl from India during the course of their 18-year relationship. To get visitation with the child after their breakup, Margaret would have had to prove "exceptional circumstances" beyond having been a "de facto" parent.
Larissa's case is believed to be the first since the appellate court decision to successfully meet that "exceptional circumstances" standard.
