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Children of Same-Sex Couples: Not Out of the Woods Yet

Wednesday, November 11th, 2015

Marriage equality is now the law, but prior bans on same-sex weddings continue to affect parental rights. Take the case of Michael Conover, who I will refer to by his former name, Michelle, and his former gender, female, because that was his identity at the time of the trial.

Michelle and her partner, Brittany Eckel, were living in DC and had been in a committed same-sex relationship for several years when, in 2010, they had a child together. They decided Brittany would be artificially inseminated from an anonymous sperm donor. The child was a boy (named Jaxon), and his birth certificate listed Brittany as the mother and contained no entry for the father.

A small number of states had recognized same-sex marriages prior to the time Jaxon was conceived, but DC first began to issue marriage licenses to same-sex couples only a month before he was born. Six months after his birth, Michelle and Brittany wed in DC.

Unfortunately, they eventually separated and came to loggerheads over Jaxon. There was no question as to Brittany’s parental rights, as she was certified as the biological mother. Michelle, however, found herself on less certain legal ground.

Michelle claimed parental rights under a Maryland statute providing that, when a woman has a child out of wedlock and then marries a man who acknowledges himself to be the father, he assumes the responsibilities of a parent in the eyes of the law. The courts, however, concluded that this statue does not grant fathers custody or visitation rights (even though it could be used to make Michelle pay child support or to let Jaxon inherit her property.) As far as child custody and visitation was concerned, Michelle and Jaxon were unrelated.

Perhaps the most interesting argument is one that was not made, because Michelle never challenged the constitutionality of Maryland’s laws while in the trial court. She could have argued, for example, that Maryland custody and visitation law discriminates unfairly on the basis of sexual orientation or perhaps on the basis of gender. In fact, she tried to make that very argument to the appellate court, dedicating almost half of her written brief to the issue. The appellate court hinted that her constitutional arguments had some heft, but it declined to address them, since Michelle had never given the trial court an opportunity to rule on them first.

Michelle is now seeking further review by Maryland’s highest court, which has not yet decided whether to take her case.