Visitation-rights ruling breaks new ground for gay couples

October 12, 2008|By JEAN MARBELLA | JEAN MARBELLA,jean.marbella@baltsun.com

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.

"It's a very difficult burden," said attorney Stacy LeBow Siegel, who teaches at the University of Maryland Law School and is a co-author of the family law textbook used there.

"I am so thrilled," Siegel said of Larissa's victory. "I am so impressed with Judge Daniels' analysis and findings."

Siegel said the ruling should have an impact on any number of people who have psychological but not biological ties to children and find themselves at a legal loss after a breakup - same-sex partners, of course, but also step-parents.

"It's a reality," she said of the increasing numbers of nontraditional households. "The real world has far surpassed where Maryland law currently is. I praise Judge Daniels for recognizing that."

States continue to dither over whether gays should be allowed to marry - on Friday, Connecticut became only the third state to legalize same-sex marriage - but such couples increasingly are raising families together. By one estimate, more than one in four same-sex couples have children. Increasingly, according to a story in Time magazine last year, even states that have banned gay marriage are enacting adoption measures that make both partners the legal parents of the children they're raising.

It's been a slow process, and there is still great resistance. But it's heartening to see polls that show growing acceptance of gay unions and gay parenting.

And if there's one constant about any kind of coupling, it's that there's a chance that it won't last. And then there's that other constant, with any breakup, all sorts of weapons get fired, including and perhaps most of all, the children.

That's where the legal system comes in - while any kind of couple can use custody and visitation rights in their breakup battle, gays and thus their children have fewer legal protections. Which is certainly an argument for legalizing same-sex marriage or unions.

"It would put both parents on equal footing," Fairfax said.

For now, though, it's a piecemeal system. And even Larissa's victory hasn't been a complete one; her former partner's lawyer has said Melissa will appeal the ruling. That could further delay a visit with the boy Larissa already hasn't seen in more than three years - or about half his young life.

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