LGBT Parentage and Marriage Issues: An Essential Family Law Update and Analysis
Table of Contents
Modern Maryland Families PDF (PowerPoint Presentation) 1
Conover v. Conover 25
Sieglein v. Schmidt 76
Fact Sheet – Conover v. Conover 98
Protecting Your Family after Marriage Equality 100
V.L. v. E.L. 102
85oag348 108
Legal Recognition of LGBT Families 129
Roberto 141
Social Security Act – POMS -GN00210 168
Social Security Act – POMS – GN00306 177
Treasury Announces Proposed Regulations Implementing the Supreme Court’s Same-Sex Marriage Decision for Federal Tax Purposes 183
Divorce in DOMA States – Attorney Guide 185
Transgender Family Law in the U.S. 190
9/28/2017
JENNIFER FAIRFAX, ESQUIRE [email protected] 301-221-9651
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WHAT MAKES A PARENT A PARENT?
• Birth • Biology (DNA) • Adoption • Parentage Order • Marital presumption of parentage • Functional parents – de facto, equitable or psychological • Custody or visitation status that does not equate to parent
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DE FACTO PARENTS
• A number of states provide a presumption of parentage where a person has lived with the child and held themselves out as a parent, and several states have case law applying this provision to same-sex parents even where the statute is gendered. – Examples: CA, NM, NH, KS, CO have case law applying their holding out presumptions to women (CA’s rule has been codified) • Some states provide through statutes or case law that a person who has formed a parental bond with the consent of the legal parent can be a legal parent or at least have legal parity with a parent for custody or visitation purposes. Sometimes these statuses may be called: de facto parents, persons in loco parentis – Examples: DE and ME provide that de facto parents are legal parents by statute; PA provides by case law that persons in loco parentis stand in legal parity with parents
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CONOVER V. CONOVER
In 2009, Michael Conover, a transgender man, and his partner decided to have a child together. Michael’s partner became pregnant through artificial insemination and gave birth to their child in 2010.
Michael and his partner raised their child together for two years—but their relationship ended. After their breakup, the lower courts in Maryland held that Michael’s partner could legally deny him visitation with their son because the courts in Maryland did not view a non-biological, non-adoptive parent like Michael as a legal parent of his child. At that time, Maryland did not recognize de facto parenthood.
On July 7 2016, the Maryland Court of Appeals unanimously held that de facto parents must be given legal recognition. A non-biological, non-adoptive parent who qualifies as a de facto parent now stands on equal footing with a biological or adoptive parent when it comes to visitation and custody of their child.
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DE FACTO PARENT ELEMENTS
The biological or adoptive parent approved of and fostered the formation of a parental relationship between the child and non-adoptive/non-biological parent;
The non-adoptive/non-biological parent lived with the child;
The non-adoptive/non-biological parent assumed responsibility for the child’s care and well-being, without the expectation of financial compensation; and
The non-adoptive/non-biological parent developed a long-lasting, bonded, dependent, parental relationship with the child.
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MARITAL PRESUMPTION OF PARENTAGE
• Every state presumes that the husband/spouse of a woman who gives birth is a father; some states apply the presumption even to children born before the marriage.
• This presumption must be equally applied to same-sex spouses – however, not every state fully protects non- biological parents under this presumption, which can be rebutted. If there is an applicable ART law or other law that conclusively establishes parentage, that should be the first argument. Adoptions or parentage judgments are still recommended.
• A number of states have made their statutes gender neutral to clearly apply the marital presumption of parentage to same-sex spouses (most only where one spouse gave birth), and a number have done so by case law. This issue is pending before a number of state courts where the statutes have not been amended, including the Arizona and Mississippi Supreme Courts.
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SIEGLEIN V. SCHMIDT PRESUMPTION OF PARENTAGE
Before marrying Schmidt, Sieglein had a vasectomy. When Schmidt desired a child, Sieglein refused to have his vasectomy reversed, but agreed to accompany Schmidt to the Shady Grove Fertility Reproductive Science Center (“Shady Grove”).
In 2010, they both signed a consent form at Shady Grove, which demonstrated their desire to undergo assisted reproduction treatment, and their understanding of the risks and obligations involved.
Thereafter, Schmidt, with Sieglein’s consent, underwent in vitro artificial insemination using donated sperm. In 2012, Schmidt gave birth to a son. The birth certificate listed Sieglein as the father and Schmidt as the mother. Shortly after the child’s birth, Sieglein and Schmidt separated.
In the divorce, Sieglein filed a motion requesting that the court determine whether he was legally the parent, as defined under section 1-206(b) of the Estates & Trusts Article (“section 1- 206(b)”).
The Court of Appeals of Maryland held that the term “artificial insemination” includes in vitro fertilization using donated sperm, and that a consenting husband is presumed to be the father of the child born as a result of the procedure. Sieglein v. Schmidt, 447 Md. 647, 652, 136 A.3d 751, 754 (2016).
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GENETIC MATERIAL DONORS
• Many states recognize that an anonymous sperm donor is not a parent.
• In some states, a known donor could be a legal father.
• Some sperm donor statutes require doctor involvement to trigger the statute (VA does while DC does not).
• Many states do not have explicit statutes addressing egg donors but under a gender neutral reading applies law related to sperm donors to egg donors.
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ASSISTED REPRODUCTION –EGGSHARING
• Some couples may choose to conceive using one partner/spouse’s egg that is fertilized and then carried by the other partner/spouse.
• Both parents should be recognized as parents in every state (one by birth and one by genetics), but only a few states have explicitly addressed this issue by statute or case law (CA, FL, NV).
• Most important issue to be aware of is to ensure that the genetic parent does not sign anything indicating that she is an egg donor.
• A judgment of parentage or adoption is recommended.
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ASSISTED REPRODUCTION –SURROGACY
• Surrogacy law varies widely, with some states providing fairly comprehensive schemes and some states criminalizing surrogacy.
• Maryland case In Re Roberto D.B. allows a gestational carrier to be removed from a birth certificate under an equal rights argument and does not address surrogacy directly.
• Attorney General’s opinion covers traditional surrogacy and makes it a violation to compensate a traditional surrogate.
• Generally laws only recognize gestational surrogates and not traditional surrogates. DC is the first to explicitly allow compensated traditional surrogacy. VA allows uncompensated traditional surrogacy. • International surrogacy is fraught with many challenges.
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ADOPTION
• In every state, married same-sex couples may jointly adopt or obtain stepparent adoptions • In some states, unmarried couples can jointly adopt and/or obtain second parent adoptions • All non-birth and non-genetic parents in a same-sex relationship should obtain an adoption or judgment of parentage, even if they are married and even if they appear on the birth certificate
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V.L. V. E.L., 136 S.Ct. 1017 (2016) FULL FAITH AND CREDIT – FINAL ADOPTION OR PARENTAGE ORDER
• V.L. and E.L. were a same‐sex couple in a long‐term relationship who had three children using donor insemination. They obtained a second parent adoption in Georgia.
• While living in Alabama, they broke up and E.L. refused to allow the children to see V.L. V.L. sought custody as an adoptive parent. The Alabama Supreme Court held that it did not have to recognize the adoption granted in Georgia.
• SCOTUS issued a summary reversal, holding that adoptions and all other judgments are owed exacting full faith and credit by other states, and that states cannot apply their own public policy exceptions to recognition, and may not inquire into the substantive law applied by the issuing state.
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ADOPTION DISCRIMINATION IN THE NAME OF RELIGIOUS FREEDOM
• Six states have passed legislation allowing agencies to deny foster care and adoption services and placement to LGBT individuals and families based upon their “firmly held religious convictions” or similar language in the statutes-- Michigan, North & South Dakota, Virginia, Alabama & Texas
• Mississippi passed a “Religious Freedom Law – HB1523 allowing doctors, employers, businesses, adoption agencies and schools to discriminate against LGBTQ people if their religion compels it.
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BIRTH CERTIFICATES
• Administrative document that records the fact of the birth of a child and the presumed parents under the law.
• A birth certificate is NOT an order of custody nor does it establish custodial or parental rights.
• Birth certificates do, however, allow parents to move through the world and be recognized for every day activities.
• Every state is issuing birth certificates to married same-sex couples, although Indiana has appealed this requirement to the Seventh Circuit.
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Obergefell v. Hodges, 135 S. Ct. 2584; 576 --US- decided on 6/26/15.
All states must allow same-sex couples to marry and give them all the same rights of marriage, and that all states must fully recognize marriages between same-sex couples entered into elsewhere.
The Court held that failing to do so would violate the guarantees of Due Process and Equal Protection in the Fourteenth Amendment.
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SMITH V.PAVAN
• Smith v. Pavan – Arkansas Dept. of Health refused to issue birth certificate with names of both spouses.
• SCOTUS summarily reversed without oral argument, explaining that Obergefell already required states to issue birth certificates, and all other rights of marriage, equally.
• “Arkansas Supreme Court’s decision denied same sex couples access to the ‘constellation of benefits’ that the state has linked to marriage”
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MEASURING DURATION OF RELATIONSHIP
• Certain property and support questions depend upon the durational term of the relationship because length of marriage is a crucial factor that Courts use in the distribution phase of property division and alimony decisions.
• Lengthy pre-marital period (when parties could not marry), subsequent marriage, and now a dissolution. E.g. 35-year relationship, 2-year marriage: is the marriage measured for spousal support purposes as a 35-year marriage or a 2-year marriage--vastly different support claim results depending on how the marriage is measured.
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MARITAL AGREEMENTS
• Uniform Pre-Marital Agreement Act: States signing onto the UP- MAA are Arizona, Arkansas, California, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Texas, Utah, Virginia
• Consider a Post Nuptial Agreement, where valid, to confirm marital vs. separate property, joint vs. individual debt, and agreements regarding length of the relationship for support consideration purposes in the event of a dissolution.
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COMMON LAW MARRIAGE • Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, and Washington D.C. (N.H. for inheritance only) allow couples to enter common law marriage, and these laws must apply gender neutrally
• States that recently abolished common law (but recognize previously entered common law marriages): Alabama, Georgia, Idaho, Oklahoma, Pennsylvania • Most states recognize common law marriages validly entered in other states
• Obergefell applies retroactively – states have an obligation to prevent the continuation of past discrimination under Harper v. VA Dept. of Taxation.
• Thus, common law marriages entered before marriage equality are valid and must be recognized from the date of entry.
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TAX CONSIDERATIONS
• Filing Status: now that couples are married, they are REQUIRED to file tax returns as a married couple, either “married filing jointly” or “married filing separately.”
• US v. Windsor 570 US ; 133 S. Ct. 2675 (2013)
• U.S. TREASURY DEPARTMENT REGULATION – OCTOBER 21, 2015 (PRESS RELEASE IN MATERIALS)
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SOME TAX RELATED BENEFITS
• The following post Obergefell tax related benefits are available to married same-sex couples: unlimited gift and estate tax exemption for transfer to spouse ability to “port” spouse’s unused estate tax exemption upon first death ability to roll over IRA or 401K inherited from deceased spouse
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Civil Unions or Domestic Partnerships:
• California, Colorado, District of Columbia, Illinois, Hawaii, New Jersey, Nevada, Oregon
• Generally NOT recognized by the feds unless also married (except Social Security does recognize these relationships).
• Must file federal income taxes as individuals (unless also married), though in community property states, must split community property between the partners in filings.
• May have difficulty divorcing as recognition is not clear in every state.
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SOCIAL SECURITY: MARRIED SPOUSES
• Must have validly married in the place of marriage, and the state of domicile must recognize the marriage.
• Marriage entered outside of the U.S. is recognized if validly entered and recognized by SSA. See POMS GN 00210.006 for a table of foreign jurisdictions.
• Children’s derivative benefits. Non-biological parents in same-sex relationships who are legal parents under state law because the child was born during a marriage may encounter delays when applying for social security for their child. These claims are being referred to Regional Counsel unless an applicable opinion has already been issued. See POMS GN 00306.001 included in materials.
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24 Michelle L. Conover v. Brittany D. Conover, No. 79, September Term, 2015, Opinion by Adkins, J.
FAMILY LAW — VISITATION AND CUSTODY — DE FACTO PARENT: De facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis. The Court’s previous decision in Janice M. v. Margaret K., 404 Md. 661 (2008), is overruled.
25 Circuit Court for Washington County Case No.: 21-C-13-046273 DA Argued: April 5, 2016
IN THE COURT OF APPEALS
OF MARYLAND
No. 79
September Term, 2015
MICHELLE L. CONOVER
v.
BRITTANY D. CONOVER
Barbera, C.J. *Battaglia Greene Adkins McDonald Watts Raker, Irma S. (Retired, Specially Assigned),
JJ.
Opinion by Adkins, J. Battaglia, Greene and Watts, JJ., concur
Filed: July 7, 2016 * Battaglia, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, she also participated in the decision and adoption of the opinion.
26 Child custody and visitation decisions are among the most serious and complex decisions a court must make, with grave implications for all parties. The dissolution of a non-traditional marriage just compounds the difficulties of this already challenging inquiry. This appeal arises out of a divorce between a lesbian couple, and involves a dispute over one spouse’s right of access to a child conceived by artificial insemination and born before the couple was married. Petitioner calls upon us to revisit the concept of de facto parenthood and our previous decision in Janice M. v. Margaret K., 404 Md. 661 (2008).
FACTS AND LEGAL PROCEEDINGS
Michelle1 and Brittany Conover began a relationship in July 2002. The parties discussed having a child and agreed that Brittany would be artificially inseminated from an anonymous donor arranged through the Shady Grove Fertility Clinic. The child was conceived in 2009. The couple gave birth to a son, Jaxon William Lee Eckel Conover
(“Jaxon”), in April 2010. The birth certificate listed Brittany as Jaxon’s mother, but no one was identified as the father. The parties married in the District of Columbia in
September 2010 when Jaxon was about six months old.
In September 2011, Michelle and Brittany separated. From the date of separation until July 2012, Michelle visited Jaxon and had overnight and weekend access. At some point in July 2012, Brittany prevented Michelle from continuing to visit Jaxon. In February
1 In her brief, Michelle notes that she is now a “transgender man” and states that the record does not reflect her gender identity because she transitioned to living as a man after the contested divorce hearing occurred. She further explained that she would refer to herself using female pronouns and her former name for consistency with the record and that her gender identity is not material to any legal issue in this appeal. For consistency with the record, we too shall refer to Michelle using female pronouns and her former name.
27 2013, Brittany filed a Complaint for Absolute Divorce, stating that there were no children shared by the couple from the marriage. Michelle filed an Answer later that month in which she requested visitation rights with respect to Jaxon. In March 2013, Michelle filed a Counter-Complaint for Absolute Divorce, in which she repeated her request for visitation rights. Michelle did not request custody.
In April 2013, the parties appeared at a hearing in the Circuit Court for Washington
County to determine Michelle’s standing to seek access to Jaxon. Brittany, appearing pro se, argued that Michelle did not have parental standing because she was not listed on the birth certificate as a parent of Jaxon, and that as a third party, she could not assert visitation rights. Michelle asserted that she had standing because she met the paternity factors for a
“father” set forth in Md. Code (1974, 2011 Repl. Vol.), Estates & Trusts (“ET”), § 1-
208(b).2 At the hearing, Michelle’s counsel averred that there were “constitutional
2 Md. Code (1974, 2011 Repl. Vol.), Estates & Trusts Article (“ET”), § 1-208(b) provides:
A child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his father only if the father: (1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings; (2) Has acknowledged himself, in writing, to be the father; (3) Has openly and notoriously recognized the child to be his child; or (4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.
(Emphasis added.) ET § 1-208(a) states that “[a] child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of his mother.”
28 reasons” that supported this interpretation, but provided no further explanation. The
Circuit Court requested supplemental memoranda. Michelle filed a legal memorandum in which no constitutional contentions were made. Brittany did not submit a memorandum.
The Circuit Court then conducted an evidentiary hearing and took testimony from
Michelle and Brittany. The following pieces of evidence were elicited at the hearing:
Michelle helped choose an anonymous sperm donor with characteristics similar to her own;
Brittany took on the more “female” role in the relationship, while Michelle took on the more “masculine” role;
Although Brittany later objected to the practice, Jaxon, at times, called Michelle “Dada” or “Daddy”;
Brittany sometimes referred to Michelle as Jaxon’s father;
A document, dated July 16, 2010, written entirely in Brittany’s handwriting was introduced. It stated that both parties “verified” that they agreed to “joint custody” of Jaxon with “[t]he exact terms of which to be determined at a later date”;3
Michelle testified that the parties considered initiating a proceeding for Michelle to adopt Jaxon, but they could not afford the cost.
At the conclusion of the evidentiary portion of the proceeding, Michelle’s counsel contended that parental standing existed under ET § 1-208(b). She also argued that
Brittany was estopped to deny that Michelle was the child’s father. Finally, she stated:
3 Michelle testified that the purpose of the document was to facilitate decision- making for Jaxon if Brittany were hospitalized. Brittany testified that she signed the document under duress.
29 An alternative argument is that my client has standing for custody based on extra . . . extraordinary circumstances. And . . . and I’m not sure if you want me to go into that argument or not. Ah, but for a custody proceeding, a Court can consider custody to a third party or visitation to a third party if the Court finds that there are extraordinary circumstances. And I believe that this case screams extraordinary circumstances.
In June 2013, the Circuit Court issued a written opinion concluding that Michelle did not have standing to contest custody or visitation. First, the court found that Michelle did not have parental standing. The court took note of the common law and statutory presumption that a child born during a marriage is presumed to be the child of both spouses, but concluded that the presumption was not applicable here as Jaxon was conceived and born prior to Brittany and Michelle’s marriage. The court also found Michelle did not establish parental standing under ET § 1-208(b) because she was not Jaxon’s “father.” The court explained:
Although it is certainly a creative argument, the statute is intended for children to claim parentage and rights to property after a parent has deceased, not for the parent to claim the child under it. Moreover, this Court finds that even under its broadest interpretation, the statute’s application was intended by the [L]egislature to be applied in instances of child support, not to establish standing for visitation and custody of a child. See Md. Code Ann., Fam. Law § 5-1005(a). [Michelle] argues that although not a male, she has sufficiently satisfied three of the four criteria under [ET] § 1-208(b) to qualify as the minor child’s father. [Section] 1-208(b) specifically pertains to the parentage of an illegitimate child claiming his or her “father[,]” which [Michelle] in this case is not. During the hearing the parties testified to the fact that [Michelle] is in fact a female, had not adopted the child, and in no way was related to the child, thus not sufficiently establishing that she could be the “father” of the child.
30 Although the Circuit Court stated that Michelle was Jaxon’s de facto parent, it relied on
Janice M. v. Margaret K., 404 Md. 661 (2008) in concluding that de facto parent status was not recognized in Maryland.
Next, the court found that Michelle did not have “third party” standing to contest custody or visitation. Relying on Janice M., the court held that Michelle, as a “third party,” had to show that Brittany was unfit or that exceptional circumstances existed to overcome the biological mother’s constitutionally protected interest in the care and control of her child. Based on the testimony at the hearing, the court found Brittany to be a fit parent and that “[t]here [had] been no showing of exceptional circumstances.” The Circuit Court denied Michelle’s request for custody or visitation based on lack of standing.
After the divorce was granted, Michelle timely appealed the Circuit Court’s order on visitation to the Court of Special Appeals. The Court of Special Appeals affirmed in a reported decision. Conover v. Conover, 224 Md. App. 366 (2015). First, the intermediate appellate court considered it inappropriate to address the issue of whether ET § 1-208(b) must be read to include women. Id. at 376. The court noted that whether the Fourteenth
Amendment of the United States Constitution or the Equal Rights Amendment of the
Maryland Declaration of Rights necessitate that the term “father” in ET § 1-208(b) be given a gender-neutral construction was an issue that was neither raised nor decided below. Id.
Next, the court ruled that even if Michelle qualified as a “father” under ET § 1-208(b)
31 despite her being female, the statute did not establish parentage for purposes of child custody and visitation:
A non-biological, non-adoptive spouse who meets one, two or even three tests under ET § 1-208(b) is still a “third party” for child access purposes. Under Janice M., he or she is not a “legal parent” . . . . He or she must still show exceptional circumstances to obtain access to a child over the objection of a fit biological parent and to overcome the natural parent’s due process rights.
Id. at 380.
We granted Michelle’s Petition for Writ of Certiorari presenting the following two questions for review:
(1) Should Maryland reconsider Janice M. v. Margaret K. and recognize the doctrine of de facto parenthood?
(2) Did the Court of Special Appeals err in holding that Michelle is a “third party,” where Michelle is a legal parent under ET § 1-208(b)?
We hold that de facto parenthood is a viable means to establish standing to contest custody or visitation and thus answer yes to the first question. We shall reverse the judgment of the Court of Special Appeals. Because we overturn Janice M. and recognize de facto parent status, we need not address Michelle’s arguments regarding ET § 1-208 and thus do not answer the second question.4
4 In her brief, Michelle notes that we must reach the issue of de facto parentage even if the Court rules in her favor regarding the statutory parentage presumption under ET § 1- 208(b). She explains that should the Court rule in her favor on ET § 1-208(b), it will be possible on remand for the Circuit Court to allow Brittany to rebut her presumptive parentage. Michelle, however, does not argue that we must reach any of the issues pertaining to ET § 1-208(b) should we rule in her favor on de facto parenthood.
32 STANDARD OF REVIEW
Brittany and Michelle agree that the facts in this case are not in dispute. Whether we should reconsider Janice M. and recognize the doctrine of de facto parenthood is a legal question, and so we review the Circuit Court’s decision without deference. Elderkin v.
Carroll, 403 Md. 343, 353 (2008) (“When the ruling of a trial court requires the interpretation and application of Maryland case law, we give no deference to its conclusions of law.”).
DISCUSSION
The primary goal of access determinations in Maryland is to serve the best interests of the child. Taylor v. Taylor, 306 Md. 290, 303 (1986) (“We emphasize that in any child custody case, the paramount concern is the best interest of the child . . . . The best interest of the child is [] not considered as one of many factors, but as the objective to which virtually all other factors speak.”); Ross v. Hoffman, 280 Md. 172, 174–75 (1977) (asserting that the “best interest standard is firmly entrenched in Maryland and is deemed to be of transcendent importance”). It is also well-established that the rights of parents to direct and govern the care, custody, and control of their children is a fundamental right protected by the Fourteenth Amendment of the United States Constitution. Meyer v. Nebraska, 262
U.S. 390, 399 (1923); see Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925).
Although there is some tension inherent amongst these two deep-rooted principles, we
33 recognized in McDermott v. Dougherty, 385 Md. 320, 353 (2005), that the rights of parents to custody of their children are generally superior to those of anyone else:
Where the dispute is between a fit parent and a private third party, however, both parties do not begin on equal footing in respect to rights to “care, custody, and control” of the children. The parent is asserting a fundamental constitutional right. The third party is not.
We have thus held that a third party seeking custody or visitation must first show unfitness of the natural parents or that extraordinary circumstances exist before a trial court could apply the best interests of the child standard. McDermott, 385 Md. at 325; see Koshko v.
Haining, 398 Md. 404, 445 (2007) (ruling grandparent visitation statute unconstitutional as-applied where no threshold finding was made regarding whether parents were unfit or whether exceptional circumstances existed).
Janice M. v. Margaret K.
In Janice M., 404 Md. at 671, we considered whether Maryland recognized de facto parenthood and if so, whether a de facto parent seeking custody or visitation had to show parental unfitness or exceptional circumstances before a trial court could apply the best interests of the child standard. In so holding, we overruled the Court of Special Appeals decision treating de facto parental status as sufficient to confer standing to seek visitation in S.F. v. M.D., 132 Md. App. 99 (2000). Janice M., 404 Md. at 683–85. That court held that a de facto parent seeking visitation need not prove the unfitness of the biological parents or exceptional circumstances as a prerequisite to a best interests of the child analysis. 132 Md. App. at 111–12.
34 In revisiting this issue, we examine the basis for the intermediate appellate court’s ruling in S.F. v. M.D., and this Court’s rationale in rejecting that ruling in Janice M. To determine whether one is a de facto parent, the Court of Special Appeals adopted a four- part test first articulated by the Wisconsin Supreme Court in In re Custody of H.S.H.-K.,
533 N.W.2d 419, 421 (Wisc. 1995):
In determining whether one is a de facto parent, we employ the test enunciated in In re Custody of H.S.H.-K., 193 Wis.2d 649, 533 N.W.2d 419 (1995), and V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539 (2000). Under that test, “the legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged.” V.C., 163 N.J. at 223, 748 A.2d 539.
Id. at 111.5 Certiorari was not requested in S.F. v. M.D.
But what exactly is de facto parenthood? The Court in Janice M. explained that the phrase “de facto parent” is “used generally to describe a party who claims custody or visitation rights based upon the party’s relationship, in fact, with a non-biological, non- adopted child.” 404 Md. 680–81.6 In that case, two women, Janice and Margaret, were
5 In a decision affirming visitation for a biological mother’s same-sex former domestic partner, the New Jersey Supreme Court described the four-part test enunciated in In re Custody of H.S.H.-K., 533 N.W.2d 419, 421 (Wisc. 1995) as “[t]he most thoughtful and inclusive definition of de facto parenthood.” V.C. v. M.J.B., 748 A.2d 539, 551 (N.J. 2000).
6 The American Law Institute (“ALI”) defines a de facto parent as:
[A]n individual other than a legal parent or a parent by estoppel who, for a significant period of time not less than two years,
(i) lived with the child and,
35 involved in a same-sex relationship for approximately 18 years, but were not married.7 Id. at 665. After Janice’s attempts to become pregnant by use of in vitro fertilization failed,
Janice, but not Margaret, adopted a child. Id. A few years after the adoption, the couple separated. Id. After they separated, Margaret filed a complaint in the Circuit Court for
Baltimore County seeking custody, or in the alternative, visitation. Id. at 666–67.
Relying on S.F. v. M.D., the Circuit Court concluded that Margaret was entitled to visitation because she was a de facto parent and that a de facto parent is not required to show unfitness of the biological parent or exceptional circumstances. Id. at 668–69. The
Court of Special Appeals affirmed. See Janice M. v. Margaret K., 171 Md. App. 528
(2006). Certiorari was granted, and this Court overruled the intermediate court’s eight-
(ii) for reasons primarily other than financial compensation, and with the agreement of a legal parent to form a parent-child relationship, or as a result of a complete failure or inability of any legal parent to perform caretaking functions,
(A) regularly performed a majority of the caretaking functions for the child, or
(B) regularly performed a share of caretaking functions at least as great as that of the parent with whom the child primarily lived.
American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.03(1)(c) (2003) (adopted May 16, 2000).
7 Same-sex marriages were not authorized under Maryland law at that time. See Conaway v. Deane, 401 Md. 219 (2007).
36 year-old decision in S.F., holding de facto parent status was not a recognized legal status in Maryland. Janice M., 404 Md. at 685. In rejecting the S.F. holding, the Court refused to distinguish de facto parents from other third parties and asserted that de facto parents seeking access rights must first show parental unfitness or exceptional circumstances before a trial court can apply the best interests of the child standard:
We will not recognize de facto parent status, as set forth in S.F., as a legal status in Maryland. We refuse to do so because, even assuming arguendo that we were to recognize such a status, short-circuiting the requirement to show unfitness or exceptional circumstances is contrary to Maryland jurisprudence, as articulated in McDermott and Koshko.
Even were we to recognize some form of de facto parenthood, the real question in the case sub judice will remain, whether, in a custody or visitation dispute, a third party, non- biological, non-adoptive parent, who satisfies the test necessary to show de facto parenthood should be treated differently from other third parties. We have not been persuaded that they should be. In other words, where visitation or custody is sought over the objection of the parent, before the best interest of the child test comes into play, the de facto parent must establish that the legal parent is either unfit or that exceptional circumstances exist. A fair reading of McDermott and Koshko leads to no other conclusion.
Id. Accordingly, the Court found that the trial court erred in granting Margaret visitation based on her status as the child’s de facto parent without first determining whether Janice was unfit or whether exceptional circumstances existed to overcome Janice’s “liberty interest in the care, custody, and control of her child.” Id. at 695. The Court then remanded the case so that the trial court could determine whether exceptional circumstances existed.
Id. at 695–96. In doing so, we explained that “a finding that one meets the requirements that would give that person de facto parent status, were that status to be recognized, is a
37 strong factor to be considered in assessing whether exceptional circumstances exist[,]” but would not be “determinative as a matter of law.” Id. at 695.
The Court’s decision in Janice M. was not unanimous. In a dissenting opinion,
Judge Irma Raker asserted “that a de facto parent is different from ‘third parties’ and should be treated as the equivalent of a legal parent, with the same rights and obligations.” Id. at
696 (Raker, J., dissenting). The dissent contended that it “would hold that a de facto parent stands in legal parity with a legal parent, whether biological, adoptive, or otherwise, for the purposes of visitation” and “would not apply the threshold determinations of parental unfitness or exceptional circumstances.” Id. at 709.
Stare Decisis
Stare decisis is the bedrock of our legal system because “it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Livesay v. Balt. Cnty., 384 Md. 1, 14 (2004) (quoting Payne v. Tennessee, 501
U.S. 808, 827 (1991)). Stare decisis, however, must sometimes yield to another judicial duty:
[The common law] may be changed by legislative act as Art. 5 of the Declaration of Rights expressly provides . . . . It may also be changed by judicial decision . . . . ‘We have frequently held that it is our duty to determine the common law as it exists in this State . . . .’ The doctrine of stare decisis does not preclude the exercise of this duty.
38 Boblitz v. Boblitz, 296 Md. 242, 274 (1983), modified by Bozman v. Bozman, 376 Md. 461
(2003).8 In the course of abrogating the doctrine of interspousal immunity in tort claims, the Boblitz Court stated:
We are persuaded that the reasons asserted for its retention do not survive careful scrutiny. They furnish no reasonable basis for denial of recovery for tortious personal injury. We find no subsisting public policy that justifies retention of a judicially created immunity that would bar recovery for injured victims in such cases as the present.
Id. at 273. We further explained in Boblitz:
‘[W]e have never construed [the doctrine of stare decisis ] to inhibit us from changing or modifying a common law rule by judicial decision where we find, in light of changed conditions or increased knowledge that the rule has become unsound in the circumstances of modern life, a vestige of the past, no longer suitable to our people.’
Id. at 274 (quoting Harrison v. Montgomery Cnty., 295 Md. 442, 459 (1983)).9 We have also considered Supreme Court analysis of stare decisis:
8 The Court in Boblitz v. Boblitz, 296 Md. 242 (1983), abolished spousal immunity only for negligence actions. In Bozman v. Bozman, 376 Md. 461, 497 (2003), we modified Boblitz by expanding the variety of torts for which one spouse could sue another: “Joining the many of our sister States that have already done so, we abrogate the interspousal immunity rule, a vestige of the past, whose time has come and gone, as to all cases alleging an intentional tort.”
9 Unger v. State, 427 Md. 383, 417 (2012) identified various cases in which we overruled our prior decisions:
This Court has not hesitated to overrule prior decisions which are clearly wrong. See, e.g., Cure v. State, 421 Md. 300, 320– 322, 26 A.3d 899, 910–911 (2011) (The Court, in an opinion by Judge Harrell, overruled a prior decision of this court concerning waiver and adopted the position of the three dissenters in that prior case); Harris v. Board of Education, 375
39 The Supreme Court has stated that ‘it is common wisdom that the rule of stare decisis is not an ‘inexorable command,’ and certainly it is not such in every constitutional case.’ Planned Parenthood v. Casey, 505 U.S. 833, 854, 112 S.Ct. 2791, 2808, 120 L.Ed.2d 674 (1992).
Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process . . . . Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent. Stare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision. [Citations omitted] [Internal quotation omitted.] Payne v. Tennessee, 501 U.S. 808, 827-28, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720 (1991).
Bozman, 376 Md. at 493–94 (quoting Perry v. State, 357 Md. 37, 96–100 (1999))
(emphasis added).
In short, we have recognized two circumstances for departing from stare decisis: (1) when the prior decision is “clearly wrong and contrary to established principles” or (2) when “the precedent has been superseded by significant changes in the law or facts.” DRD
Md. 21, 59, 825 A.2d 365, 388 (2003) (Overruling three prior cases and their progeny on the ground that the overruled cases had erroneously inserted in the Workers Compensation Act an additional requirement not included by the Legislature); State v. Kanaras, 357 Md. 170, 184, 742 A.2d 508, 516 (1999) (Overrules five prior decisions which had misinterpreted the Postconviction Procedure Act); Owens–Illinois v. Zenobia, 325 Md. 420, 470–471, 601 A.2d 633 (1992) (The Court overruled several cases relating to punitive damages on the ground that the “holdings were erroneous and were inconsistent with [prior] Maryland . . . law”); Townsend v. Beth.–Fair. Shipyard, 186 Md. 406, 417, 47 A.2d 365, 370 (1946).
40 Pool Serv., Inc. v. Freed, 416 Md. 46, 64 (2010) (citations and internal quotation marks omitted).10 As explained below, we depart from Janice M. on both grounds.
Grounds for Decision in Janice M.
The Janice M. Court relied heavily on McDermott and Koshko to support its rejection of de facto parenthood and determination that persons meeting this status must nonetheless show parental unfitness or exceptional circumstances before a trial court can apply the best interests of the child standard. See Janice M., 404 Md. at 685–86 (“Clearly, in light of McDermott and Koshko, S.F. no longer reflects Maryland law, and accordingly, is overruled.”).
As Judge Raker pointed out in her dissenting opinion, McDermott and Koshko “dealt with the rights of pure third parties, and not those of de facto parents.” Id. at 705–06
(Raker, J. dissenting). In McDermott, which involved maternal grandparents seeking custody in litigation against the child’s father, the Court distinguished “pure third parties” from those persons who are in a parental role. 385 Md. at 356. Specifically, the court differentiated “pure third parties” from psychological parents. Id.11 The Court defined the
10 This ground is also described as “when the precedent has been rendered archaic and inapplicable to modern society through the passage of time and evolving events.” State v. Stachowski, 440 Md. 504, 520 (2014) (internal citations omitted).
11 Although the Court used the term “physiological parents,” it is clear that this was a typographical error. McDermott v. Dougherty, 385 Md. 320, 356 (2005) (“Some states have conceptualized the idea of physiological parents, third parties who have, in effect, become parents and thus, the case is considered according to the standards that apply between natural parents.”) (emphasis added). In the very same paragraph, the Court used the phrase “psychological parent.” Id. (“In that situation there are no constitutional rights involved (although in some cases constitutional claims are made using terms such as ‘psychological parent’ and the like) and the ‘best interest’ standard is generally applied.”)
41 phrase “psychological parents” as “third parties who have, in effect, become parents.” Id.
The term “psychological parent” is closely related to the “de facto parent” label in that these designations are used to describe persons who have assumed a parental role.12
The Court then made clear that McDermott was a “pure third-party case” before it proceeded to analyze other pure third-party cases. 385 Md. at 356–57 (“[I]n comparison with the total number of cases in which attempts are made to utilize the ‘best interest’ standard . . . the number of pure third-party cases, such as the present case, is relatively
(emphasis added). In addition, in its later discussion of other jurisdictions, the McDermott Court also used the phrase “psychological parents.” Finally, a Westlaw search for “physiological parents,” “physiological parent,” and “physiological parenthood” yielded no cases other than McDermott.
12 Compare Janice M. v. Margaret K., 404 Md. 661, 681 n.8 (2008) (“The term ‘psychological parent’ is based primarily in social science theory, and refers to a party who has a ‘parent-like’ relationship with a child as a result of ‘day-to-day interaction, companionship, and shared experiences.’”) (quoting Joseph Goldstein, Anna Freud & Albert J. Solnit, Beyond the Best Interests of the Child 19 (1973)), with id. at 680 (stating that “‘parent in fact’” is the “literal meaning” of de facto parent). These terms are so similar that courts often use them interchangeably. See, e.g., V.C., 748 A.2d at 546 n.3 (noting that “[t]he terms psychological parent, de facto parent, and functional parent” would be “used interchangeably in this opinion to reflect their [similar] use in the various cases, statutes, and articles cited”); see generally In re Parentage of L.B., 122 P.3d 161, 167 n.7 (Wash. 2005) (explaining the meaning of “the related yet distinct terms of in loco parentis, psychological parent, and de facto parent”). As one commentator put it, the psychological parent and de facto parent “doctrines are often used interchangeably, and the nuances between them vary by jurisdiction, but the same basic principles underlie their application.” Lindsy J. Rohlf, Note, The Psychological-Parent and De Facto-Parent Doctrines: How Should the Uniform Parentage Act Define “Parent”?, 94 Iowa L. Rev. 691, 700 (2009) (describing the differences between the two doctrines as “superficial”). Indeed, the Court in Janice M. acknowledged the similarity of these terms. 404 Md. at 681 n.8 (“While these designations [de facto parent, in loco parentis and psychological parent] are related, they are not always, or necessarily, identical in meaning.”).
42 small. It is on these remaining cases throughout the country, that we primarily focus our attention.”) (emphasis added).13
Likewise, Koshko involved grandparents seeking visitation, who did not claim to be de facto parents. The Court in Koshko simply extended our holding in McDermott—that parental unfitness and exceptional circumstances are threshold considerations in third party custody determinations—to visitation disputes. 398 Md. at 443 (“Now that we conclusively have stated in McDermott that parental unfitness and exceptional circumstances shall be threshold considerations in third party custody determinations, it is appropriate that we now also apply those considerations in third party visitation disputes.”); see Janice M., 404 Md. at 680 (“McDermott made clear that parental unfitness and exceptional circumstances are threshold considerations in third party custody determinations; Koshko made clear that those considerations apply in third party visitation disputes.”). But neither McDermott nor Koshko justified this Court’s decision in Janice
M. What the Court failed to identify was any rationale for eliminating consideration of the parent-like relationship that the plaintiff sought to protect. It seemingly ignored the bond that the child develops with a de facto parent.
Troxel v. Granville
The Janice M. Court relied in part on the United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57 (2000), indicating that it also undermined the
13 The Court also examined cases in which a state was involved in the custody process, but did not consider these to be “pure third-party” cases. See McDermott, 385 Md. at 365 (citing Connecticut Supreme Court decision and observing it was “not a pure third-party case in that the state was the petitioning party”).
43 intermediate appellate court’s decision in S.F. See 404 Md. at 672–74, 683 (“[T]he Court of Special Appeals has considered the concept, as well as the status, of a de facto parent in the context of visitation rights in the case of S.F. . . . . It did so, however, prior to the
Supreme Court’s decision in Troxel, and our decisions in McDermott and Koshko.”). In
Troxel, the U.S. Supreme Court addressed an appeal from a petition to obtain visitation rights filed by the grandparents of two minor children pursuant to a Washington State visitation statute. The Washington statute provided that “[a]ny person may petition the court for visitation rights at any time, including, but not limited to, custody proceedings.
The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.” Troxel,
530 U.S. at 61 (citing Wash. Rev. Code § 26.10.160(3) (1994)). In a fractured opinion, a four-justice plurality held the Washington statute unconstitutional as applied to the facts of the case. Id. at 73. The high court determined that the state trial court’s visitation order in favor of the grandparents was an unconstitutional infringement on the parent’s
“fundamental right to make decisions concerning the care, custody, and control” of her children under the Fourteenth Amendment’s Due Process Clause. Id. at 72.
Troxel was an extremely narrow decision. See Hernandez v. Hernandez, 265 P.3d
495, 498 (Idaho 2011) (describing Troxel’s import as “limited” and “stand[ing] for the narrow proposition that Wash. Rev. Code § 26.10.160(3) (1994) is constitutionally infirm as applied in that case”); see also Jeff H. Pham, Comment, Does Mother Still Know Best?:
In Re Marriage of Harris and Its Impact on the Rights of Custodial Parents, 38 Loy. L.A.
44 L. Rev. 1871, 1878 (2005) (characterizing Troxel as a “deliberately narrow opinion”).14
The Court’s holding hinged “on the sweeping breadth” of the Washington statute and “the application of that broad, unlimited power.” Troxel, 530 U.S. at 73.15 Writing on behalf of the plurality, Justice O’Connor expressly declined to address whether substantive due process requires a showing of harm before non-parental visitation is ordered and asserted that “[w]e do not, and need not, define today the precise scope of the parental due process right in the visitation context.” Id. Additionally, it bears mention that the Supreme Court did not strike down the Washington statute as unconstitutional on its face, but only as applied. The Court further maintained that it “would be hesitant to hold that specific nonparental visitation statutes violate the Due Process Clause as a per se matter.” Id.
(stating that “the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied”).
As many courts immediately recognized, Troxel did not denote the end of third party visitation. See, e.g., Jackson v. Tangreen, 18 P.3d 100, 103–04 (Ariz. Ct. App. 2000)
(holding Arizona grandparent visitation statute constitutional and concluding that Troxel
“has no impact” on the state statute); Rideout v. Riendeau, 761 A.2d 291, 303 (Me. 2000)
(ruling Maine’s Grandparents Visitation Act, as applied, did not violate the Due Process
14 Even the Koshko Court acknowledged the narrowness of Troxel v. Granville, 530 U.S. 57 (2000). See Koshko v. Haining, 398 Md. 404, 443 (2007) (“We are aware that the plurality opinion in Troxel does not compel our holding in this regard in the present case.”).
15 See Jeff Atkinson, Shifts in the Law Regarding the Rights of Third Parties to Seek Visitation and Custody of Children, 47 Fam. L.Q. 1, 4 (2013) (“The Washington state statute under which visitation had been granted in Troxel was one of the broadest in the country.”).
45 Clause of the Fourteenth Amendment); Hertz v. Hertz, 738 N.Y.S.2d 62, 64–65 (N.Y. App.
Div. 2002) (reversing trial court’s judgment that New York’s grandparent visitation statute was unconstitutional and asserting that “Troxel does not mandate a finding that
[grandparent visitation statute] is unconstitutional per se”).
Indeed, several state courts of last resort have expressly held that Troxel does not prevent the recognition of de facto parent status. For example, in In re Parentage of L.B., the Washington Supreme Court adopted the concept of de facto parentage and rejected a biological mother’s contention that granting a putative de facto parent standing to seek custody of a minor child would infringe on the biological mother’s fundamental parental interests under Troxel. 122 P.3d 161, 178–79 (Wash. 2005) (“Finding no constitutional infirmities in recognizing de facto parents”). Similarly, in upholding the constitutionality of a state statute permitting a de facto parent to seek custody, the Delaware Supreme Court explained:
Troxel does not control these facts. The issue here is not whether the Family Court has infringed Smith’s fundamental parental right to control who has access to ANS [the minor child] by awarding Guest co-equal parental status. Rather, the issue is whether Guest is a legal “parent” of ANS who would also have parental rights to ANS—rights that are co-equal to Smith’s. This is not a case, like Troxel, where a third party having no claim to a parent-child relationship (e.g., the child’s grandparents) seeks visitation rights. Guest is not “any third party.” Rather, she is a [] de facto parent who . . . would also be a legal “parent” of ANS. Because Guest, as a legal parent, would have a co-equal “fundamental parental interest” in raising ANS, allowing Guest to pursue that interest through a legally-recognized channel cannot unconstitutionally infringe Smith’s due process rights. In short, Smith’s due process claim fails for lack of a valid premise.
46 Smith v. Guest, 16 A.3d 920, 931 (Del. 2011) (involving lesbian couple and dispute over access to Smith’s adopted child) (emphasis added) (footnotes omitted).16
In her Janice M. dissent, Judge Raker rightly emphasized that courts “have continued to recognize the de facto parenthood concept post-Troxel.” 404 Md. at 701–03
(Raker, J., dissenting). Put simply, numerous courts have declined to treat Troxel as a bar to recognizing de facto parenthood or other designations used to describe third parties who have assumed a parental role. See, e.g., Bethany v. Jones, 378 S.W.3d 731, 737 (Ark. 2011)
(“We reiterate that the focus should be on what, if any, bond has formed between the child and the nonparent.”); Marquez v. Caudill, 656 S.E.2d 737, 743 (S.C. 2008) (“Because
Stepfather is [child’s] psychological parent and is, in fact, the only father he has ever known, we find the family court appropriately determined that it was in [child’s] best interest for Stepfather to have custody of him”); In re Guardianship of Victoria R., 201
P.3d 169, 177 (N.M. Ct. App. 2008) (“[W]e hold that a showing that the [] petitioners have assumed the role of the psychological parents of the child who is the subject of the [] proceeding to the extent that the child will suffer a ‘significant degree of depression’ if the relationship with the psychological parents is abruptly terminated is sufficient to rebut the presumption that the biological parent is acting in the child’s best interests”); Mason v.
16 In SooHoo v. Johnson, 731 N.W.2d 815 (Minn. 2007), the Minnesota Supreme Court upheld a provision of the state’s third party visitation statute granting de facto parents visitation. In finding the provision not unconstitutional, the court noted that the fundamental right of parents to the care, custody, and control of their children is not absolute and cited the United States Supreme Court’s recognition “that states may intrude on parental rights in order to protect the ‘general interest in the youth’s well being.’” 731 N.W.2d at 822 (citing Prince v. Massachusetts, 321 U.S. 158, 166 (1944)).
47 Dwinnell, 660 S.E.2d 60, 65, 70 (N.C. Ct. App. 2008) (concluding that former domestic partner of natural parent had standing to bring an action for custody of child where couple
“entered into an agreement in which they each acknowledged that [former partner] was a de facto parent and had ‘formed a psychological parenting relationship with the parties’ child’”); In re Clifford K., 619 S.E.2d 138, 144, 159 (W. Va. 2005) (holding that surviving lesbian partner had standing as a “psychological parent” to seek custody of child she had helped raise with her late partner); C.E.W. v. D.E.W., 845 A.2d 1146, 1150-51 (Me. 2004)
(reaffirming that courts may “entertain an award of parental rights and responsibilities to a de facto parent”); In re E.L.M.C., 100 P.3d 546, 554 (Colo. App. 2004) (former partner of lesbian mother was a “psychological parent” with standing to seek custody); T.B. v. L.R.M.,
786 A.2d 913, 917–19 (Pa. 2001) (lesbian former partner of a child’s biological mother could seek partial custody and visitation based on her standing in loco parentis to the child);
Rubano v. DiCenzo, 759 A.2d 959, 975 (R.I. 2000) (“[A] person who has no biological connection to a child but who has served as a psychological or de facto parent to that child may . . . establish his or her entitlement to parental rights vis-a-vis the child”).
Indeed, no case has interpreted Troxel as inconsistent with parental status for non- biological parents except Maryland. Treatment by these other courts helps to demonstrate the error made by the Janice M. Court in reasoning that Troxel undermined S.F. and the recognition of de facto parenthood.
The Wisconsin Rule—In re Custody of H.S.H.-K.
Before Janice M., the intermediate appellate court’s recognition of de facto status in S.F. was consistent with McDermott, Koshko, and Troxel because the test it used to
48 determine de facto parenthood was narrowly tailored to avoid infringing upon the parental autonomy of a legal parent. The Court of Special Appeals borrowed a four-factor test enunciated by the Wisconsin Supreme Court in its seminal decision in H.S.H.-K., 533
N.W.2d at 421.17 Under this test, a third-party seeking de facto parent status bears the burden of proving the following when petitioning for access to a minor child:
(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and 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.
H.S.H.-K., 533 N.W.2d at 435–36. As other courts adopting this test have recognized, these factors set forth a high bar for establishing de facto parent status, which cannot be achieved without knowing participation by the biological parent. See, e.g., V.C., 748 A.2d at 551–53 (“Prong one is critical because it makes the biological or adoptive parent a participant in the creation of the psychological parent’s relationship with the child.”);
17 The Wisconsin Supreme Court in In re Custody of H.S.H.-K., 533 N.W.2d 419, 421 (Wisc. 1995), “was one of the first states to adopt equity principles to protect a functional parent-child relationship.” Danaya C. Wright, Inheritance Equity: Reforming the Inheritance Penalties Facing Children in Nontraditional Families, 25 Cornell J.L. & Pub. Pol’y 1, 15 (2015).
49 Rubano, 759 A.2d at 974 (“[These] criteria preclude such potential third-party parents as mere neighbors, caretakers, baby sitters, nannies, au pairs, nonparental relatives, and family friends from satisfying these standards.”); E.L.M.C., 100 P.3d at 560 (“These four factors ensure that a nonparent’s eligibility for psychological parent treatment with respect to an unrelated child will be strictly limited.”). Under this strict test, a concern that recognition of de facto parenthood would interfere with the relationship between legal parents and their children is largely eliminated. We thus adopt the multi-part test first articulated by the
Wisconsin Supreme Court in H.S.H.-K.18
The de facto parent doctrine does not contravene the principle that legal parents have a fundamental right to direct and govern the care, custody, and control of their children because a legal parent does not have a right to voluntarily cultivate their child’s parental-type relationship with a third party and then seek to extinguish it. As the South
Carolina Supreme Court explained in Marquez, 656 S.E.2d at 744:
[T]he first factor [in the H.S.H.-K. test] is critical because it makes the biological or adoptive parent a participant in the creation of the psychological parent’s relationship with the child. This factor recognizes that when a legal parent invites a third party into a child’s life, and that invitation alters a child’s life by essentially providing him with another parent, the legal parent’s rights to unilaterally sever that relationship are necessarily reduced.
18 In deciding whether to award visitation or custody to a de facto parent, the equity court should also take into account whether there are other persons who have already been judicially recognized as de facto parents. A court should be very cautious and avoid having a child or family to be overburdened or fractured by multiple persons seeking access.
50 See also T.B., 786 A.2d at 919 (“The Superior Court aptly noted, under similar circumstances, that a biological parent’s rights ‘do not extend to erasing a relationship between her partner and her child which she voluntarily created and actively fostered simply because after the parties’ separation she regretted having done so.’”). The H.S.H.-
K. standard for determining de facto parenthood is therefore consistent with the Supreme
Court’s reaffirmation in Troxel, 530 U.S. at 66, of “the fundamental right of parents to make decisions concerning the care, custody, and control of their children,” as well as with
McDermott and Koshko. It is also consistent with an earlier, most pertinent decision by this Court—Monroe v. Monroe, 329 Md. 758 (1993).
Monroe v. Monroe
In Monroe a putative father sought custody of a child as a third party before learning from blood tests that he was not the biological father of the child. 329 Md. at 760–63. In discussing whether exceptional circumstances existed to rebut the presumption that the child’s best interests were served by remaining with her biological mother, we concluded that “[w]hat is important, rather, is the relationship that exists between the child and each of the parties.” Id. at 775. We further asserted that protection of a child’s relationship with a non-biological parent is justified “when the relationship is developed in the context of a family unit and is fostered, facilitated and, for most of the child’s life, encouraged by the biological parent.” Id.; cf. Marquez, 656 S.E.2d at 744 (“[T]he first factor [in the H.S.H.-
K. test] is critical because it makes the biological or adoptive parent a participant in the creation of the psychological parent’s relationship with the child.”).
51 Although the Court in Monroe was evaluating whether exceptional circumstances existed, the reasoning of Monroe is equally apposite to de facto parenthood. In the words of the Monroe Court:
Whether the child has established a relationship with a third party sufficient to constitute exceptional circumstances, rebutting the presumption of custody in the biological parent, is not dependent on its development during the absence of the biological parent. A relationship resulting in bonding and psychological dependence upon a person without biological connection can develop during an ongoing biological parent/child relationship. Particularly is this true when the relationship is developed in the context of a family unit and is fostered, facilitated and, for most of the child’s life, encouraged by the biological parent.
Monroe, 329 Md. at 775.
Our previous recognition of the importance—for legal purposes—of a psychological bond between a child and non-parent confirms the notion that de facto parenthood is distinct from pure third party status. Id.; see also McDermott, 385 Md. at
356 (distinguishing “pure third parties” from “psychological parents”). The Monroe
Court’s emphasis on bonding and psychological dependence reflects the longstanding judicial recognition in Maryland (and elsewhere) that children need good relationships with parental figures and they need them to be stable. The Janice M. Court’s rejection of de facto parent as a status sufficient for standing in child access cases contravenes this universally accepted concept. For these reasons, the first ground for overruling Janice M. is satisfied—the precedent was “clearly wrong and contrary to established principles.”
DRD Pool Serv., 416 Md. at 64.
52 Janice M. Has Been Undermined By Subsequent Events
The anemic grounds for the Janice M. decision are not the only reason we recognize the doctrine of de facto parenthood. Additionally, the passage of time and evolving events have rendered Janice M. obsolete—the second circumstance recognized in DRD Pool Serv. and other cases. Maryland’s recognition of same-sex marriage in 2012—Civil Marriage
Protection Act, Ch. 2, 2012 Md. Laws 9—undermines the precedential value of Janice M.
Our state’s recognition of same-sex marriage illustrates the greater acceptance of gays and lesbians in the family unit in society. See also Melina Constantine Bell, Gender
Essentialism and American Law: Why and How to Sever the Connection, 23 Duke J.
Gender L. & Pol’y 163, 200 (2016) (“[G]ay men and lesbians, and same-sex couples are gaining greater acceptance in the U.S.”); Elizabeth S. Scott & Robert E. Scott, From
Contract to Status: Collaboration and the Evolution of Novel Family Relationships, 115
Colum. L. Rev. 293, 374 (2015) (reviewing the “dramatic change in public attitudes . . . for same-sex couples who wish to marry”).
But gays and lesbians are particularly “ill-served by rigid definitions of parenthood.” Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining
Parenthood to Meet the Needs of Children in Lesbian-Mother and Other Nontraditional
Families, 78 Geo. L.J. 459, 464 (1990).19 As Polikoff explained, when gay or lesbian
19 See also Patricia M. Logue, The Rights of Lesbian and Gay Parents and Their Children, 18 J. Am. Acad. Matrimonial Law. 95, 115 (2002) (“Many lesbian and gay people are having and parenting children with a partner. If the relationship ends by death or separation, the parent-child relationships of nonbiological de facto parents may be cast into legal limbo.”).
53 relationships end, at least one member “will find itself in a court system ill-prepared to recognize its existence and to formulate rules to resolve its disputes. . . . [t]he contestants stand as a parent and a nonparent, a legal status inconsistent with their functional status.”
See id. at 463. Thus, the General Assembly’s according greater rights to same-sex couples when it recognized same-sex marriage in 2012 further undermines the value of adhering to
Janice M., a precedent which can be considered “archaic” because it fails to effectively address problems typical of divorce by same-sex married couples. See State v. Waine, 444
Md. 692, 700 (2015) (“We may decline to follow the doctrine when persuaded the prior decision is clearly wrong, or when the precedent has been rendered archaic and inapplicable to modern society through the passage of time and evolving events.”) (citation and internal quotation marks omitted). The same problems exist even when an unmarried same-sex couple separates.20
In addition, a majority of states, either by judicial decision or statute, now recognize de facto parent status or a similar concept. See Nancy D. Polikoff, From Third Parties to
Parents: The Case of Lesbian Couples and Their Children, 77 Law & Contemp. Probs.
195, 208 (2014) (“A minority of states . . . have denied a functional psychological parent without legal status the ability to request custody or visitation rights.”); see also Katharine
T. Bartlett, Prioritizing Past Caretaking in Child-Custody Decisionmaking, 77 Law &
Contemp. Probs. 29, 66 (2014) (observing that most jurisdictions that “have directly
20 Of course, persons ending a heterosexual marriage or other relationship may also achieve standing if they meet the criteria set forth in H.S.H.-K., 533 N.W.2d at 421, which we have adopted herein.
54 confronted the matter recognize de facto parenthood in certain limited circumstances” and counting Maryland among the few jurisdictions that “appear to remain committed to doctrines denying custodial responsibilities altogether to third parties who have engaged in day-to-day, residential caretaking in a parenting capacity”).
Indeed, the Washington Supreme Court identified a “modern common law trend of recognizing the status of de facto parents” as early as 2005. Parentage of L.B., 122 P.3d at 176 n.24. A diverse array of jurisdictions, from Alaska to West Virginia, constitute this majority. See, e.g., Kinnard v. Kinnard, 43 P.3d 150, 151, 153–55 (Alaska 2002)
(affirming shared-custody award to father and stepmother, who was the child’s psychological parent); E.N.O. v. L.M.M., 711 N.E.2d 886, 888, 891-93 (Mass. 1999)
(adopting de facto parenthood and affirming judgment granting temporary visitation to lesbian former partner of biological mother); Parentage of L.B., 122 P.3d at 177
(“[H]enceforth in Washington, a de facto parent stands in legal parity with an otherwise legal parent, whether biological, adoptive, or otherwise.”); C.E.W., 845 A.2d at 1149 (“We have recognized de facto parental rights or similar concepts in addressing rights of third persons who have played an unusual and significant parent-like role in a child’s life . . . .”);
T.B., 786 A.2d at 917, 920 (rejecting biological mother’s argument that “the well- established doctrine of in loco parentis should be abandoned” and concluding that “the lower courts properly found that [lesbian former partner] stood in loco parentis to [child] and therefore had standing to seek partial custody for purposes of visitation”); Boseman v.
Jarrell, 704 S.E.2d 494, 504–05 (N.C. 2010) (affirming that non-biological parent could be granted custody rights “because [biological mother] acted inconsistently with her
55 paramount parental status”); Rubano, 759 A.2d at 976 (“[T]he fact that [biological mother] not only gave birth to this child but also nurtured him from infancy does not mean that she can arbitrarily terminate [lesbian former partner’s] de facto parental relationship with the boy, a relationship that [biological mother] agreed to and fostered for many years.”); V.C.,
748 A.2d at 550 (concluding former lesbian partner of biological mother had standing to seek joint custody and visitation); Marquez, 656 S.E.2d at 745 (stepfather was the psychological parent of his non-biological child and it was in child’s best interest for stepfather to have custody of him); E.L.M.C., 100 P.3d at 553–54 (former partner of lesbian mother was a “psychological parent” with standing to seek custody; “inherent in the bond between child and psychological parent is the risk of emotional harm to the child should that relationship be significantly curtailed or terminated”); Latham v. Schwerdtfeger, 802
N.W.2d 66, 75 (Neb. 2011) (“The district court erred when it concluded that the doctrine of in loco parentis did not apply to this case. The undisputed facts show that [lesbian former partner] has rights which are entitled to consideration and has standing based on the doctrine of in loco parentis.”); In re Jonathan G., 482 S.E.2d 893, 913 (W. Va. 1996)
(“[W]e hold that a child has a right to continued association with individuals with whom he has formed a close emotional bond, including foster parents, provided that a determination is made that such continued contact is in the best interests of the child.”);
Bethany, 378 S.W.3d at 738 (“Having determined that Jones [biological mother’s former same-sex partner] stood in loco parentis, the question then becomes whether it is in [the child’s] best interest for Jones to have visitation rights, as that is the polestar
56 consideration.”). In some states, legislation was enacted authorizing standing for a de facto parent to sue for either custody or visitation.21
Additionally, family law scholarship and the academic literature have also endorsed the notion that a functional relationship—as well as biology or legal status—can be used to define parenthood.
The American Law Institute (“ALI”) has recommended expanding the definition of parenthood to include de facto parents and includes a de facto parent as one of the parties with standing to bring an action for the determination of custody, subject to the best interests of the child analysis. ALI, Principles of the Law of Family Dissolution: Analysis and Recommendations §§ 2.03, 2.04 (2003) (adopted May 16, 2000).22 Additionally, many
21 See D.C. Code § 16-831.03(a) (West, Westlaw through May 11, 2016) (“A de facto parent may file a complaint for custody of a child or a motion to intervene in any existing action involving custody of the child.”); Del. Code Ann. tit. 13, § 8-201(c) (West, Westlaw through 80 Laws 2016) (“De facto parent status is established if the Family Court determines that the de facto parent . . . .”); Or. Rev. Stat. Ann. § 109.119 (West, Westlaw through 2016 Reg. Sess.) (“Except as otherwise provided in subsection (9) of this section, any person, including but not limited to a related or nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement or guardianship of that child . . . .”); Tex. Fam. Code Ann. § 102.003(a)(9) (West, Westlaw through 2015 Reg. Sess.) (“An original suit may be filed at any time by a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition.”).
22 Pamela Laufer-Ukeles, Money, Caregiving, and Kinship: Should Paid Caregivers Be Allowed to Obtain De Facto Parental Status?, 74 Mo. L. Rev. 25, 29 (2009) (“In the last two decades, a trend has developed in state law and in scholarly commentary toward increasing openness to awarding parenting rights to third parties who have been functional caregivers to children, precipitating the adoption of de facto parenthood and parenthood by estoppel status in the ALI Principles.”).
57 commentators have espoused the concept of de facto parenthood in examining the inadequacies of recognizing only legal parenthood. Emily R. Lipps, Note, Janice M. v.
Margaret K.: Eliminating Same-Sex Parents’ Rights to Raise Their Children by
Eliminating the De Facto Parent Doctrine, 68 Md. L. Rev. 691 (2009) (criticizing Janice
M. and arguing that Court should have recognized de facto parent status); Sacha M. Coupet,
“Ain’t I a Parent?”: The Exclusion of Kinship Caregivers from the Debate over
Expansions of Parenthood, 34 N.Y.U. Rev. L. & Soc. Change 595, 653 (2010) (“[D]e facto parental status holds tremendous promise as an avenue for kinship caregivers seeking parental recognition.”); Dorothy R. Fait, Jillian L. DiLaura & Michelle M. Botek, Who Is
A Parent?, 42 Md. B.J. 4, 10 (2009) (“The natural parent should not be permitted to use the ‘fundamental right to parent’ as a shield once the ‘de facto parent’ relationship is no longer convenient. In certain cases, the best interests of the child can only be protected through the legal acceptance of the de facto parent . . . .”).
In short, Janice M. now deviates sharply from the decisional and statutory law of other jurisdictions. The weight of authority outside Maryland reinforces our decision to overturn Janice M. and recognize de facto parenthood.
Maryland Statutory Law
Importantly, Maryland statutory law is silent when it comes to de facto parenthood.
At oral argument, Brittany maintained that we should not overrule Janice M. because de facto parent status should be left to the General Assembly. We disagree. The General
Assembly has granted equity courts jurisdiction over the “custody or guardianship of a child.” Md. Code (1984, 2012 Repl. Vol.), Family Law (“FL”) Article §1-201(b)(5). As
58 part of their broad power to fashion appropriate relief, equity courts have “plenary authority to determine questions concerning the welfare of children.” Stancill v. Stancill, 286 Md.
530, 534 (1979). “In other words, a court of chancery stands as a guardian of all children and may interfere at any time and in any way to protect and advance their welfare and interests.” Ross v. Hoffman, 280 Md. 172, 176 (1977).
Other jurisdictions in recognizing de facto status have also cast aside the contention that recognition of such status should be left to the legislative branch where the relevant statutes were silent on de facto parenthood. In Parentage of L.B., 122 P.3d at 176, the
Washington Supreme Court wrote:
Our state’s current statutory scheme reflects the unsurprising fact that statutes often fail to contemplate all potential scenarios which may arise in the ever changing and evolving notion of familial relations. Yet, simply because a statute fails to speak to a specific situation should not, and does not in our common law system, operate to preclude the availability of potential redress. This is especially true when the rights and interests of those least able to speak for themselves are concerned. We cannot read the legislature’s pronouncements on this subject to preclude any potential redress to [minor child] or [putative de facto parent]. In fact, to do so would be antagonistic to the clear legislative intent that permeates this field of law—to effectuate the best interests of the child in the face of differing notions of family and to provide certain and needed economical and psychological support and nurturing to the children of our state.
Id. (emphasis added). This reasoning is in accord with other state high courts that have recognized de facto parenthood. See, e.g., H.S.H.-K., 533 N.W.2d at 424–25 (“Nor did the legislature intend the [] visitation statute to supplant or preempt the courts’ long standing equitable power to protect the best interest of a child by ordering visitation in circumstances
59 not included in the statute. . . . [t]he legislature did not intend to [] ‘occupy the field’ of visitation.”); E.N.O., 711 N.E.2d at 890 (“The court’s duty as parens patriae necessitates that its equitable powers extend to protecting the best interests of children in actions before the court, even if the Legislature has not determined what the best interests require in a particular situation.”).
Although several state courts have refused to adopt de facto parent status on the grounds that such decisions should be left to the legislature,23 we find this reasoning inapt because Maryland’s statutory scheme in the area of family law is not as comprehensive as such states. Indeed, Maryland statutory law on child custody and visitation illustrates that
“statutes often fail to contemplate all potential scenarios which may arise in the ever changing and evolving notion of familial relations.” Parentage of L.B., 122 P.3d at 176.
Maryland does not have statutory factors for courts to consider in determining whether a party’s access to a child is in that child’s best interests. See FL §§ 9-101–9-108; see also Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law 2011–
2012: “DOMA” Challenges Hit Federal Courts and Abduction Cases Increase, 46 Fam.
L.Q. 471, 524–27 (2013) (indicating that Maryland is only one of eleven states not to have
23 See, e.g., Smith v. Gordon, 968 A.2d 1 (Del. 2009); Jones v. Barlow, 154 P.3d 808 (Utah 2007); Moreau v. Sylvester, 95 A.3d 416 (Vt. 2014). For instance, before Delaware’s General Assembly recognized de facto parenthood by statute, Del. Code Ann. tit. 13, § 8-201(c), the Delaware Supreme Court refused to adopt de facto parent status because the state legislature “enact[ed] a comprehensive statutory scheme that reflect[ed] a public policy unambiguously to define the parent-child relationship as a legal relationship.” Smith v. Gordon, 968 A.2d at 15.
60 statutory factors).24 Rather than looking to codified rules, the factors courts consider in making a “best interests determination” are found in case law. Taylor v. Taylor, 306 Md.
290, 303–312 (1986). This judicially determined law has been in place for many years, without legislation overruling it. See Montgomery Cnty. v. Robinson, 435 Md. 62, 78
(2013) (“It is a settled principle of Maryland law that the General Assembly is presumed to be aware of legislation it has enacted as well as the interpretation the courts have given that legislation.”) (internal citations omitted). Thus, we discern no evidence that
Maryland’s General Assembly intended to preempt common law jurisprudence over the
“ever changing and evolving notion of familial relations” in child custody proceedings.
For these reasons, we reject Brittany’s contention that an equity court’s ability to consider de facto parent status in fashioning relief pertaining to the custody or guardianship of a child lies solely within the province of the General Assembly.25
Conclusion
We overrule Janice M. because it is “clearly wrong” and has been undermined by the passage of time. In light of our differentiation in McDermott, 385 Md. at 356, between
“pure third parties” and those persons who are in a parental role, we now make explicit that
24 It should be noted that the General Assembly has provided some legislative direction in custody proceedings. Under Md. Code (1984, 2012 Repl. Vol.), Fam. Law Article § 9-101, a court must determine if it has “reasonable grounds to believe” that a child has been abused or neglected by a party seeking custody and if so, the court must make a finding that there is no further likelihood of abuse or neglect if unsupervised custody or access is to be awarded to that person.
25 The General Assembly has the power, of course, to enact a differing standard than the one we now restore.
61 de facto parents are distinct from other third parties. We hold that de facto parents have standing to contest custody or visitation and need not show parental unfitness or exceptional circumstances before a trial court can apply a best interests of the child analysis. The best interests of the child standard has been “firmly entrenched in Maryland and is deemed to be of transcendent importance.” Ross, 280 Md. at 174–75. With this holding we fortify the best interests standard by allowing judicial consideration of the benefits a child gains when there is consistency in the child’s close, nurturing relationships.
We do so carefully, adopting the multi-part test first articulated by the Wisconsin
Supreme Court in H.S.H.-K. This test accommodates, we think, the dissonance between what is in the best interest of a child and a parent’s right to direct and govern the care, custody, and control of their children.
We reverse the Court of Special Appeals, and direct that court to remand this case to the Circuit Court for determination of whether, applying the H.S.H.-K. standards,
Michelle should be considered a de facto parent, and conduct further proceedings consistent with this opinion.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY RESPONDENT.
62 Circuit Court for Washington County Case No. 21-C-13-046273 Argued: April 5, 2016 IN THE COURT OF APPEALS
OF MARYLAND
No. 79
September Term, 2015 ______
MICHELLE L. CONOVER
v.
BRITTANY D. CONOVER ______
Barbera, C.J. *Battaglia Greene Adkins McDonald Watts Raker, Irma S. (Retired, Specially Assigned)
JJ. ______
Concurring Opinion by Greene, J. ______
Filed: July 7, 2016
*Battaglia, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, she also participated in the decision and adoption of the opinion.
63 I agree with the Majority’s conclusion that de facto parent status should be recognized in Maryland. In that regard, we are correct to recognize that this status exists, and to overrule Janice M. v. Margaret K., 404 Md. 661, 948 A.2d 73 (2008). In addition,
I agree with the test enunciated in In re Custody of H.S.H.-K., 533 N.W.2d 419 (Wisc.
1995) and V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000). Likewise, I agree with the Majority’s decision in this case to adopt and apply this test in order to establish de facto parentage. I disagree, however, that a person who qualifies as a de facto parent is not required, per se, to establish exceptional circumstances. Consistent with our case law, the burden was on
Michelle Conover to demonstrate exceptional circumstances to justify the need for a best interest analysis. See Ross v. Hoffman, 280 Md. 172, 178–79, 372 A.2d 582, 587 (1977).
I agree that de facto parentage is a relevant factor but it is not the only factor for the court to consider in reaching the ultimate decision to grant child access.
In my view, de facto parent status can best be described as a subset of exceptional circumstances. The fact that another person has a psychological bond with the child, a bond that was fostered by the legal parent, is but one relevant factor that would warrant a finding of an exceptional circumstance, and could overcome the presumption in favor of the legal or adoptive parent to control access to the child.
Other probative factors would include:
[(a)] the length of time the child has been away from [either] the biological [and or adoptive] parent, [(b)] the age of the child when care was assumed by the [de facto or biological parent], [(c)] the possible emotional effect on the child [resulting from] a change of custody [or visitation], [(d)] [any] period of time which elapsed before the [de facto or legal] parent sought to reclaim [access to] the child, [(e)] the nature and strength of the ties between the child and the [de facto parent], [(f)] the intensity and genuineness of the
64 [respective] parent’s desire to have the child [for the purposes of visitation or custody], [(g)] the stability and certainty as to the child’s future in the custody of [or having access to] the [de facto] parent.
See Ross, 280 Md. at 191, 372 A.2d at 593.
The existence of a de facto parent status, the fact that a child has a close emotional bond with the de facto parent and that it would be in the best interest of the child to maintain that bond, are questions for the trial judge to resolve. Thus, the trial court would decide ultimately the existence of exceptional circumstances and whether the de facto parent’s access to a child is in that child’s best interest. See Taylor v. Taylor, 306 Md. 290, 307–
11, 508 A.2d 964, 972–74 (1986). In its determination of the best interest of the child, the trial judge would be in the best position to consider all of the relevant factors.
For the above reasons, I concur in the judgment of the Court.
65 Circuit Court for Washington County Case No. 21-C-13-046273 IN THE COURT OF APPEALS Argued: April 5, 2016 OF MARYLAND
No. 79
September Term, 2015 ______
MICHELLE L. CONOVER
v.
BRITTANY D. CONOVER ______
Barbera, C.J. *Battaglia Greene Adkins McDonald Watts Raker, Irma S. (Retired, Specially Assigned)
JJ. ______
Concurring Opinion by Watts, J., which Battaglia, J., joins ______
Filed: July 7, 2016
*Battaglia, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, she also participated in the decision and adoption of this opinion.
66 Respectfully, I concur. Although I agree with the Majority in the recognition of de facto parenthood in Maryland, in my view, the Majority, in adopting the four-factor test set forth by the Supreme Court of Wisconsin in In re Custody of H.S.H-K., 533 N.W.2d 419
(Wisc. 1995), see Maj. Slip Op. at 22-24, 36, adopts a standard that is too broad and that could have a negative impact on children in Maryland.
By adopting the four-factor test set forth in H.S.H.-K., 533 N.W.2d at 435, the
Majority holds that, under the first factor, when seeking de facto parent status, the third party must show “that the biological or adoptive parent consented to, and fostered, the
[third party]’s formation and establishment of a parent-like relationship with the child[.]”
In other words, the Majority holds that only one parent is needed to consent to and foster a parent-like relationship with the would-be de facto parent. This will work in cases such as this one, where a second biological or adoptive parent does not exist, i.e., where there is only one existing parent. Where there are two existing parents, however, permitting a single parent to consent to and foster a de facto parent relationship could result in a second existing parent having no knowledge that a de facto parent, i.e., a third parent, is created.
Such situations may result in a child having three parents vying for custody and visitation, and being overburdened by the demands of multiple parents. Today, many children are not living in a classic nuclear family. Families include not only same-sex married parents—in which one parent had a child before marriage—but also separated or divorced parents who conceived children during a marriage, as well as two parents who have never married. The Majority has written broadly a solution for de facto parents that will serve couples well under circumstances similar to the parties in this case, where there is only one
67 biological or adoptive parent. The majority opinion, however, will have greater consequences in cases for children with two existing parents because a de facto parent request may occur without the knowledge or consent of the second existing parent.
Children who already have difficulty with visitation schedules, or experience custody issues pertaining to two parents, will not be served well by the creation of a test that does not account for the second existing parent’s knowledge and consent.
Oddly, the Majority expresses concern that multiple de facto parentships not be created and that trial courts should be cautious about overburdening families with multiple people seeking access in that regard. See Maj. Slip Op. at 24 n.18. Ironically, however, the Majority expresses no concern about the creation of a single de facto parentship where there are already two existing parents, and where one parent may create a de facto parentship absent the other existing parent’s notice of, and consent to, the de facto parentship of a third party.
Imagining the untenable situation of a child who is parented by two adults one of whom, without the knowledge or consent of the second already existing parent, creates a de facto parentship, I cannot agree with simply adopting the four-factor test without additional limits and safeguards. Even creating a standby guardianship in Maryland has traditionally required the consent of both parents. Indeed, under Md. Code Ann., Est. &
Trusts (1974, 2011 Repl. Vol.) § 13-903(a), concerning judicial appointment of a standby guardianship, provides, in relevant part:
(1) Subject to the provisions of paragraph (2) and (3) of this subsection, a petition for the judicial appointment of a standby guardian of the person or property of a minor under this section may be filed only by a parent of the
68 minor, and if filed, shall be joined by each person having parental rights over the minor.
(2) If a person who has parental rights cannot be located after reasonable efforts have been made to locate the person, the parent may file a petition for the judicial appointment of a standby guardian.
(3) If the petitioner submits documentation, satisfactory to the court, of the reasonable efforts to locate the person who has parental rights, the court may issue a decree under this section.
(Emphasis added). By contrast, here, the Majority creates the irreconcilable result that one parent in Maryland may not consent to a standby guardianship, absent documentation that the parent made reasonable efforts to locate and obtain the consent of the other parent, but that one parent may consent to and foster a de facto (third) parent for a child without any sort of notice to, or consent from, a second existing parent. In my view, this is not a desirable result.
Further, during the 2010 and 2015 legislative sessions, the General Assembly failed to pass de facto parent bills which were similarly or more narrowly constructed than the holding of the majority opinion. In 2010, two bills—Senate Bill 600 and House Bill
1241—were introduced “for the purpose of requiring a court to determine that an individual is a de facto parent under certain circumstances; establishing that an individual who is judicially determined to a be a de facto parent has the duties and obligations of a parent; and generally relating to de facto parents.” S.B. 600, 2010 Regular Session, General
Assembly of Maryland, http://mgaleg.maryland.gov/2010rs/bills/sb/sb0600f.pdf
[https://perma.cc/952F-XRN4] (capitalization omitted); H.B. 1241, 2010 Regular Session,
General Assembly of Maryland, http://mgaleg.maryland.gov/2010rs/bills/hb/hb1241f.pdf
69 [https://perma.cc/8RQT-DAYP] (capitalization omitted). At that time, the proposed bills would have added a new section to the Family Law Article, providing, in pertinent part, that a court shall determine that an individual is a de facto parent if the individual requests a judicial determination of de facto parentage and if the court finds by clear and convincing evidence that the following circumstances exist:
(I) each parent of the minor child consented to, supported, and fostered the establishment of a parent-like relationship between the minor child and the individual;
(II) the individual has exercised parent-like responsibility for the minor child; and
(III) the individual has acted in a parent-like role for a length of time sufficient to have established a bonded and dependent relationship with the minor child that is parental in nature.
S.B. 600, 2010 Regular Session, General Assembly of Maryland, http://mgaleg.maryland.gov/2010rs/bills/sb/sb0600f.pdf [https://perma.cc/952F-XRN4]
(capitalization omitted) (emphasis added); H.B. 1241, 2010 Regular Session, General
Assembly of Maryland, http://mgaleg.maryland.gov/2010rs/bills/hb/hb1241f.pdf
[https://perma.cc/8RQT-DAYP] (capitalization omitted) (emphasis added). Ultimately,
Senate Bill 600 received a hearing in the Senate Judicial Proceedings Committee, but no further action was taken, and House Bill 1241 received a hearing in the House Judiciary
Committee, but was subsequently withdrawn following an unfavorable report. See Fiscal and Policy Note, S.B. 402, 2015 Regular Session, General Assembly of Maryland, available at http://mgaleg.maryland.gov/2015RS/fnotes/bil_0002/ sb0402.pdf [https://perma.cc/PP8L-973C].
70 Five years later, in 2015, two bills—Senate Bill 402 and House Bill 577—were introduced
FOR the purpose of authorizing a court, on request of certain parties in certain judicial proceedings, to determine whether an individual is a de facto parent of a child; authorizing an individual who asserts that the individual is a de facto parent to initiate or intervene in certain judicial proceedings by filing a certain pleading; establishing a certain burden of proof and standard of proof; requiring that a judicial determination on de facto parent status be in writing; establishing that an individual who is judicially determined to be a de facto parent has the duties, rights, and obligations of a parent unless the court makes a certain determination; requiring that certain disputes regarding the allocation of child custody and visitation be removed on the basis of the best interest of the child; defining a certain term; and generally relating to de facto parents.
S.B. 402, 2015 Regular Session, General Assembly of Maryland, http://mgaleg.maryland.gov/2015RS/bills/sb/sb0402f.pdf [https://perma.cc/5WNT-
ZE4V]; H.B. 577, 2015 Regular Session, General Assembly of Maryland, http://mgaleg.maryland.gov/2015RS/bills/hb/hb0577f.pdf [https://perma.cc/EG2H-
R57A]. The proposed bills would have added a new section to the Family Law Article, providing, in pertinent part, that a de facto parent
means an individual, including a current or former spouse of a parent of a child, who:
(1) over a substantial period of time has:
(I) been treated as a parent by the child;
(II) formed a meaningful parental relationship with the child; and
(III) lived with the child;
(2) has undertaken full and permanent responsibilities as a parent of the child; and
71 (3) has held the individual out as a parent of the child with the agreement of a parent of the child, which may be expressed or implied from the circumstances and conduct of the parties.
S.B. 402, 2015 Regular Session, General Assembly of Maryland, http://mgaleg.maryland.gov/2015RS/bills/sb/sb0402f.pdf [https://perma.cc/5WNT-ZE4V]
(capitalization omitted) (emphasis added); H.B. 577, 2015 Regular Session, General
Assembly of Maryland, http://mgaleg.maryland.gov/2015RS/bills/hb/hb0577f.pdf
[https://perma.cc/EG2H-R57A] (capitalization omitted) (emphasis added). Notably,
Senate Bill 402 and House Bill 577 altered the definition of de facto parent previously proposed in 2010 by setting forth different criteria, including that the individual must have lived with the child over a substantial period of time and by eliminating the requirement that both parents of a child must consent to and foster the de facto parent relationship.
Additionally, the proposed bills altered the burden of proof necessary for a court to determine whether an individual is a de facto parent to a preponderance of the evidence from clear and convincing evidence as previously proposed in 2010. Ultimately, Senate
Bill 402 received a hearing in the Senate Judicial Proceedings Committee, but received an unfavorable report, see S.B. 402, 2015 Regular Session, General Assembly of Maryland,
Senate Judicial Proceedings Committee Voting Record, http://mgaleg.maryland.gov/2015RS/votes_comm/sb0402_jpr.pdf,
[https://perma.cc/5LM9-J55U] and House Bill 577 received a hearing in the House
Judiciary Committee, but was subsequently withdrawn following an unfavorable report, see H.B. 577, 2015 Regular Session, General Assembly of Maryland, House Judiciary
Committee Voting Record,
72 http://mgaleg.maryland.gov/2015RS/votes_comm/hb0577_jud.pdf
[https://perma.cc/6JPQ-PLPD].
The proposed bills from 2010 and 2015 demonstrate that there are a number of details that necessarily must accompany any decision to recognize de facto parenthood in
Maryland—from what burden of proof an individual bears to how an action for de facto parentship should be pled and what criteria an individual must satisfy to be declared a de facto parent. In my view, the majority opinion is broader than, and without the constraints of, the withdrawn bills. For example, the majority opinion includes no information on the burden of proof in a de facto parent case, the manner of petitioning to become a de facto parent, how a trial court should deliver an opinion in a de facto parent case, or, most importantly, a very basic limit that would protect children who already have two existing parents from the creation of a third parent in the absence of both existing parents’ knowledge and consent to that de facto parent relationship.
To fill the obvious void left by the majority opinion, I would offer the following guidance. In every instance in which a trial court is confronted with a request for de facto parentship, the trial court should ascertain whether there are one or two existing biological or adoptive parents. In the case of two existing parents, the trial court should require that the second parent have notice of the de facto parent request and ascertain whether the second parent consents to the de facto parent relationship. In satisfaction of the first prong of the H.S.H.-K. test, an action for de facto parenthood may be initiated only by an existing parent or a would-be de facto parent by the filing of a verified complaint attesting to the consent of the establishment of de facto parent status. The trial court should find by clear
73 and convincing evidence that the parent has established:
(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child, and in the event of two existing biological or adoptive parents, that both parents consented to the establishment of a de facto parentship;1
(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.
See H.S.H.-K., 533 N.W.2d at 435-36. The trial court should be required to issue a written opinion explaining the reasons for granting or denying the request.
To be sure, the majority opinion is appropriate for the parties in this case and provides Petitioner deserved relief, but, in simply adopting the four-factor test from H.S.H.-
K., with no additional safeguards or limitations, the Majority has drafted an opinion that fails to provide important safeguards as to how de facto parentships are to be created and fails to serve all litigants, including those similarly situated to the parties in this case as well as others who do not live in a classic nuclear family. In addition to lacking important
1Under the circumstance where a second existing parent may not be able to be located, the trial court should utilize the same procedure as used in the stand-by guardianship statute and require that the existing parent or would-be de facto parent could proceed with seeking a declaration of de facto parentship only after satisfactory documentation is produced to the trial court demonstrating that “reasonable efforts have been made to locate” the second existing parent. Est. & Trusts § 13-903(a).
74 procedural safeguards, the majority opinion does citizens, and particularly the children, of
Maryland a disservice by not including additional protections to ensure that children and families are not overburdened by the custody and visitation demands of multiple parents, and by not including the limitation that, in circumstances where there are two existing parents, both parents need to have notice of, and the opportunity to consent to, the de facto parentship of a third party.2
For the above reasons, respectfully, I concur.
Judge Battaglia has authorized me to state that she joins in this opinion.
2Where there is a lack of consent on the part of the second existing parent to the creation of a de facto parentship, the parent who wants to foster the de facto parentship or the would-be de facto parent is not precluded from facilitating that party’s access to the child by establishing exceptional circumstances for the trial court’s consideration of the best interests of the child. See, e.g., Koshko v. Haining, 398 Md. 404, 444-45, 921 A.2d 171, 195 (2007) (“[T]here must be a finding of either parental unfitness or exceptional circumstances demonstrating the current or future detriment to the child, absent visitation from his or her grandparents, as a prerequisite to application of the best interests analysis.”).
75 447 Md. 647 Mr. Sieglein, who the Circuit Court found to 136 A.3d 751 be the father of the child, was also determined to have voluntarily impoverished himself with Stephen SIEGLEIN respect to child support, as well as had v. Laura SCHMIDT. [447 Md. 652]
No. 76, Sept. Term, 2015. injunctive relief entered against him based on harassment. He asks us to consider the Court of Appeals of Maryland. following questions:
May 20, 2016. 1. Whether the “plain meaning” of Md.Code Ann. ‘ET’ § 1– [136 A.3d 753] 206(b) can be interpreted to include a case of “in vitro” John H. Doud, III (Baltimore, MD), on brief, fertilization from a donated egg for Petitioner. and donated sperm, as a result of which Petitioner has been Courtney J. Hagermann (SARC Legal Services declared a “parent” of the child Program, Bel Air, MD), on brief, for and thereby liable for child Respondent. support, even though the child has no genetic connection to Argued before: BARBERA, C.J., either of the parties? BATTAGLIA,* GREENE, ADKINS, McDONALD, WATTS, and LAWRENCE F. 2. Whether the “plain meaning” RODOWSKY (Retired, Specially Assigned), of Md.Code Ann. ‘FL’ § 1– JJ. 203(a)(2) can be interpreted to sustain a permanent injunction Opinion against Petitioner on the basis [136 A.3d 754] of “harassment”?
BATTAGLIA, J. 3. Whether the long settled meaning of “voluntary [447 Md. 651] impoverishment” has been ignored by the decisions of the The primary issue we address in the present Courts below? case is whether the use of the term “artificial insemination” in Section 1–206(b) of the Seiglein v. Schmidt, 445 Md. 487, 128 A.3d 51 Estates & Trusts Article of the Maryland (2015). Code1 encompasses only a specific procreation technique of artificial We shall hold that the term “artificial insemination or whether the term more insemination” in Section 1–206(b) of the broadly encompasses any methodology Estates and Trusts Article encompasses in wherein human reproduction is achieved by vitro fertilization utilizing donated sperm. We artificial means. The issue is queued up in shall further hold that the Circuit Court Judge this case, because Laura Schmidt, did not err in finding that Mr. Sieglein Respondent, wife of Stephen Sieglein, voluntarily impoverished himself nor in Petitioner, delivered a child through in vitro granting Ms. Schmidt's request for a fertilization (IVF)2 using donated sperm. permanent injunction.
76 The facts of this case are, for the most part, informed of the available undisputed. Stephen Sieglein and Laura alternatives and risks and Schmidt were married in 2008 in Havre de benefits of such alternatives. Grace, Maryland and resided together in This information has been Abingdon until 2012. Prior to the marriage, supplemented by Mr. Sieglein had one biological child, an adult, from a previous relationship, as did Ms. [447 Md. 654] Schmidt. After the birth of his child Mr. Sieglein had undergone my/our consultation with my/our medical team. I/We [136 A.3d 755] have had the opportunity to ask questions and all my/our a vasectomy. Although Ms. Schmidt desired questions have been answered to have another child, Mr. Sieglein refused to to my/our satisfaction. have his vasectomy reversed. He did, however, accompany Ms. Schmidt to the I/We have read the Assisted Shady Grove Fertility Reproductive Science Reproduction document in its Center (“Shady Grove”) as well as support the entirety and have had ample process of obtaining medical assistance to time to reach my/our decision, conceive a child. free from pressure and coercion, and agree to proceed Both Ms. Schmidt and Mr. Sieglein signed an with my/our participation in “Assisted Reproduction: In Vitro Assisted Reproduction services Fertilization, Intracytoplasmic Sperm as stated above. Injection, Assisted Hatching, and Embryo Freezing Consent” form in January of 2010. (emphasis added). The form required both parties to A son was born in 2012; his birth certificate [447 Md. 653] listed Ms. Schmidt under the section for the mother's name and Mr. Sieglein under the indicate which “elements of the IVF treatment section for the father's name. The parties you agree to undertake in your upcoming IVF separated shortly thereafter, treatment cycle.” Ms. Schmidt and Mr. Sieglein agreed to undertake In Vitro [136 A.3d 756] Fertilization,3 Intracytoplasmic Sperm Injection,4 Assisted Hatching5 and Embryo however, and Ms. Schmidt filed a complaint Cryopreservation.6 Additionally, they both in the Circuit Court for Harford County for a acknowledged by signature that they had limited divorce on the grounds of cruelty and been “fully advised of the purpose, risk and vicious conduct against her and her children, benefits” of the procedures to which they as well based upon voluntary separation; she consented and were participating “free from also requested child support. Mr. Sieglein pressure and coercion”: generally denied the allegations of the complaint as well as that he was the father of I/We have been fully advised of the boy; he, thereafter, filed a motion the purpose, risks and benefits requesting that the court determine “whether of each of the procedures or not [he was] a ‘parent’ as that term is indicated above, as well as employed and understood under Maryland Assisted Reproduction law, so as to obligate him under [Ms. generally, and have been Schmidt's] claim for child support.”
77 A hearing on Mr. Sieglein's motion and Ms. [T]he presumption in § 1– Schmidt's request for child support was held 206(b) is that the Defendant in the fall of 2012. Judge William Carr of the consented to the artificial Circuit Court for Harford County issued a insemination process, making memorandum opinion and order in which he the child the legitimate child of found that Mr. Sieglein was the parent of the the Defendant.... [He] jointly child and, therefore, was obligated to pay engaged in efforts with the child support: Plaintiff to create a child, and it is in the best interest of the [T]he Estates and Trusts Article child to receive support and care unequivocally states that a child from both parents. conceived via the artificial insemination of a married (internal citations omitted). The court did woman with the consent of her not, however, determine the amount of the husband is the legitimate child child support. of both spouses. Additionally, § 1–206(b) creates a presumption The parties appeared in December of 2012 that a husband consented to the before Judge Angela Eaves of the Circuit IVF process. Court for Harford County for a pendente lite hearing on custody, visitation and child * * * support. Prior to the hearing, Ms. Schmidt filed an amended complaint for limited The facts the Defendant brings divorce in which she sought sole legal custody forth may demonstrate that he of the boy, child support and injunctive relief did not want to be a parent, but under Section 1–203(a)(2) of the Family Law they do not rebut the Article, which provides for the issuance of an injunction to “protect any party to the action [447 Md. 655] from physical harm or harassment.” Maryland Code (1974, 2012 Repl.Vol.), presumption of consent to the Section 1–203(a)(2) of the Family Law IVF Treatment, and they do not Article. In support of her amended complaint, show that he did not consent to Ms. Schmidt relied on a protective order creating a child. The Defendant issued by the District Court of Maryland for married the Plaintiff in 2008. Harford County that ordered Mr. Sieglein to When the Plaintiff expressed a vacate the family home, to cease harassment desire to have a child, the of Ms. Schmidt, to refrain from contacting Defendant accompanied her to a Ms. Schmidt and to stay away from her place fertility clinic to explore the IVF of employment. process, and they both signed the consent forms for the IVF During the December 2012 hearing, Mr. treatment. The Defendant Sieglein attempted to re-litigate the issue of remained in the marital home parentage and iterated that he did not seek with the Plaintiff throughout the custody or visitation. Judge Eaves, however, pregnancy, and his name declined appears on the child's birth certificate as the father. [447 Md. 656]
* * *
78 to revisit the issue of paternity, stating that [447 Md. 657] Judge Carr had previously addressed that issue, having determined of $1049.00. An additional $100.00 per month was ordered to reduce Mr. Sieglein's [136 A.3d 757] child support arrearage of $7,171.00, covering the period from May 2012 to December 2012. that Mr. Sieglein was one of the boy's parents. Judge Eaves, however, did make a Ms. Schmidt was granted an absolute divorce determination that Mr. Sieglein, who was in 2013. A final hearing to determine child unemployed at the time of the hearing, had support and to address her request for voluntarily impoverished himself,7 based injunctive relief was held in February of 2014. upon a number of factors: At the hearing, Mr. Sieglein testified that he was a college graduate, had been an employee I am making a finding that he is of Sysco Food Services until resigning in 2012 voluntarily impoverished, first and was unemployed from mid November stating that he is not going to 2012 until December of 2013. He support [the child] in any way; acknowledged that he was the former second, from then having other husband of Ms. Schmidt and had recently assets and resources at his started working as a driver for a frozen food disposal that he has chosen to delivery service. Mr. Sieglein also testified use only for his benefit, but not that while unemployed he received necessarily even in a way that's unemployment benefits and additional financially prudent. income from a rental property he owned prior to the marriage.9 Mr. Sieglein urged he had He has a renter that left ... [h]e not voluntarily impoverished himself, but has that property available. He proffered evidence of his search for has a mortgage of $800, but he employment through copies of forms logging chooses to then spend $350 a efforts to find work during his period of month to live elsewhere ... In unemployment. Upon cross-examination, Mr. this case, also the fact that he Sieglein admitted to making 90 contacts took out—used funds from the during his twelve-month term of money market account in order unemployment, several of which were to only pay his own living repeated. He also testified that he had been expenses and not pay anything employed for eight days in August 2013 as a towards the child's expenses[.] trainee with Business Machines, but that Even though he could incur a penalty for early withdrawals of [136 A.3d 758] the IRA account, he still has some ability there, but he has his position was terminated after he had chosen not to undertake any requested that the company enter a later start responsibility whatsoever with date to enable him to continue to receive respect to this child[.] unemployment because of unpaid training time. Mr. Sieglein's potential income became the focal point of the child support calculation.8 Ms. Schmidt testified in support of her In January of 2013 sole physical and legal request for a permanent injunction to protect custody of the boy was granted to Ms. her from physical harm or harassment. She Schmidt, while Mr. Sieglein was ordered to recounted several instances of Mr. Sieglein's pay monthly child support circling around her, getting in line near her
79 and approaching and intimidating her at the him to stay 75 yards away from church attended by both of them, in violation [Ms. Schmidt] and the children of the protective order. and to have no contact. No contact means not in person, by At the conclusion of the hearing, Judge Eaves telephone, in writing or through determined, after considering Mr. Sieglein's third-parties in this case. And physical condition, education, that will extend past the duration of the current [447 Md. 658] protective order that is in effect. employment changes, relationship to Ms. Mr. Sieglein appealed to the Court of Special Schmidt, efforts to find and retain Appeals, which affirmed in a reported employment and past work history, that Mr. opinion, Sieglein v. Schmidt, 224 Md.App. Sieglein had voluntarily impoverished 222, 227, 120 A.3d 790, 793 (2015).10 The himself, she stated that, “There is an effort to court, reviewing not—to not maintain employment to the extent that he was employed with Sysco ... a [447 Md. 659] pattern of Mr. Sieglein not wanting to pay child support in this case for a child already Section 1–206(b) of the Estates and Trusts determined to be his.” She then calculated a Article, held that “a child conceived via child support payment from Mr. Sieglein to artificial insemination or IVF with the Ms. Schmidt of $1,007.00 monthly on behalf consent of the parties and born during a of the boy. marriage is the legitimate child of the marriage and legal parentage is established as With respect to Ms. Schmidt's request for a to both spouses”, id. at 243, 120 A.3d at 802, permanent injunction, the court stated: because:
[Mr. Sieglein's] credibility By enacting ET § 1–206(b), the suffers with this Court. The General Assembly evinced its manner in which he testifies, his intention to acknowledge the ability only to recall events role of medically assisted, non- favorable to him in this case and traditional conception of a child the fact that he is less than in establishing a parent's rights honest in his dealings with and obligations. respect to Ms. Schmidt.... Circling around her when he Id. at 242, 120 A.3d at 802. The court further knows she is present ... There is concluded that the circuit court had not a protective order in place. abused its discretion in granting a permanent Getting in line behind her when injunction to Ms. Schmidt nor in finding Mr. you know it is her means that Sieglein had voluntarily impoverished you walk away because there is a protective order in place. [136 A.3d 759]
* * * himself. Sieglein, 224 Md.App. at 246–52, 120 A.3d at 805–08. I do think [Mr. Sieglein] is playing fast and loose with the The threshold question before us involves our Court's order in this matter and interpretation of the term “artificial accordingly, I'm going to order insemination” in Section 1–206(b) of the
80 Estates and Trusts Article, which provides absurd consequences. If the that: language of the statute is clear and unambiguous, we need not (a) A child born or conceived look beyond the statute's during a marriage is presumed provisions and our analysis to be the legitimate child of both ends. If, however, the language spouses. Except as provided in § is subject to more than one 1–207 of this subtitle, a child interpretation, or when the born at any time after his terms are ambiguous when it is parents have participated in a part of a larger statutory marriage ceremony with each scheme, it is ambiguous, and we other, even if the marriage is endeavor to resolve that invalid, is presumed to be the ambiguity by looking to the legitimate child of both parents. statute's legislative history, case law, statutory purpose, as well (b) A child conceived by as the structure of the statute. artificial insemination of a married woman with the Anderson v. Council of Unit Owners of consent of her husband is the Gables on Tuckerman Condominium, 404 legitimate child of both of them Md. 560, 571–72, 948 A.2d 11, 18–19 (2008) for all purposes. Consent of the (internal citations omitted) (internal husband is presumed. quotation omitted). Thus, our initial inquiry is whether the term “artificial insemination” Maryland Code (1974, 2011 Repl.Vol.) in Section 1–206(b) is clear and (emphasis added).11 We have often articulated unambiguous. the process of statutory interpretation as: Mr. Sieglein argues that the term “artificial In statutory interpretation, our insemination” has a plain meaning that refers primary goal is always to to only one procedure, specifically, that being discern the legislative purpose, intrauterine insemination.12 He argues that in the ends to be accomplished, vitro fertilization, the procedure utilized in the present case, should be excluded from the [447 Md. 660] definition because it was not a procedure known about in 1969, when the provisions of or the evils to be remedied by a Section 1–206(b) were introduced into our particular provision, be it statutory scheme. Ms. Schmidt argues, statutory, constitutional or part conversely, that the term “artificial of the Rules. We begin our insemination” relates to any “medical analysis by first looking to the process” used to aid the woman in becoming normal, plain meaning of the pregnant “without sexual intercourse,” as language of the statute, reading currently reflected not only in the Merriam– the statute as a whole to ensure Webster Dictionary, www.merriam- that no word, clause, sentence webster.com, http://www.merriam- or phrase is rendered webster.com surplusage, superfluous, meaningless or nugatory. [447 Md. 661] Further, an interpretation should be given to the statutory /dictionary/artificial% 20insemination provisions that does not lead to (https://perma.cc/ZT6D–VCDY), but also
81 [136 A.3d 760] have existed; intrafollicular, intraperitoneal, intratubal and intrauterine.13 in Magill's Medical Guide, Magill's Medical Guide 231 (6th ed. Salem Health 2011), in [447 Md. 662] which “artificial insemination” is under the collective heading of “Assisted Reproductive The term “artificial insemination”, thus, had Technology.” and continues to have a number of meanings, generally related to artificial reproduction. The term “artificial insemination” is not Though one meaning referred specifically to defined anywhere in the Maryland Annotated the placement of sperm in a woman's body, Code. Past and present dictionary definitions the term has sometimes been used more abound regarding the term, in addition to broadly to refer to assisted reproduction. As a Merriam–Webster's definition and the Magill result, Mr. Sieglein's contention that artificial Medical Guide. The 1961 edition of Webster's insemination has a plain meaning which Third New International Dictionary defined referred only to one specific reproductive the term as the “introduction of semen into technique is without merit. the uterus or oviduct by other than natural means.” Webster's Third New International Rather, by reference to the legislative history Dictionary Unabridged, 124 (1961). of Section 1–206(b) of the Estates and Trusts “Inseminate” in 1961 included two Article we can glean its legislative intent. The definitions; “to sow or sow in” and “to Section was added in 1969 to Article 93 introduce semen into (the female genital entitled “Decedent's Estates”, Chapter 3 of the tract) by coitus or by other means.” Webster's Maryland Laws of 1969, in order to address Third New International Dictionary the effect on legitimacy of the use of donated Unabridged, 1168 (1961). sperm.14 The Report of the Commission to Review and Revise the Testamentary Law of Black's Medical Dictionary has provided that, Maryland (“Governor's Commission”) “Artificial insemination is the introduction of commented on the addition of Section 1– semen into the vagina by artificial means.” 206(b) : Black's Medical Dictionary, 65 (26th ed. 1965). Stedman's Medical Dictionary defines Subsection (b) is new. It is “artificial insemination ” as the “introduction derived from 2–111(b) (UPC ). of semen into the vagina other than by The Commission feels that this coitus.” Stedman's Medical Dictionary, 982 addition is desirable in view of (28th ed. 2007). the increased use of artificial
In 1965, Black's Medical Dictionary, 65 (26th [136 A.3d 761] ed. 1965), recognized, “There are two forms of artificial insemination: AIH and AID. In AIH insemination and the lack of ... the semen is obtained from the husband. In any statute or case law on the AID ... the semen is obtained from a man subject in Maryland. other than the woman's husband.” See also Ausman & Snyder's Medical Library, Lawyer's Second Report of the Governor's Commission Edition, § 1:32 (1988) (Homologous to Review and Revise the Testamentary Law Insemination refers to the use of the of Maryland, Article 93 Decedent's Estates 8 husband's sperm while Heterologous (Dec. 5, 1968). Although the Report did not Insemination deals with the use of donated define the term “artificial insemination”, its sperm). In addition, multiple techniques for reference to “2–111(b) (UPC)” was to the 1967 introducing the sperm into the woman also draft of the Uniform Probate Code (“Draft
82 UPC”), which proposed language for One of the “grave questions” was whether the “Legitimacy; Effect of Illegitimacy on injection of a third-party donor's semen into a Intestate Succession.” Third Working Draft married woman could be Uniform Probate Code With Comments, National [447 Md. 664]
[447 Md. 663] viewed as an act of adultery, as suggested in a Canadian case, Orford v. Orford, 58 D.L.R. Conference of Commissioners on Uniform 251 (1921), involving a child born to a woman State Laws, 70–71 (Nov. 1967). who claimed to have been artificially inseminated while apart from her husband. Section 2–111(b) of the Draft UPC provided: Id. at 1091. Although the court did not believe the child was the result of artificial Any child conceived following insemination, but, rather, was due to the artificial insemination of a woman's infidelity, the court opined, “Sexual married woman with the intercourse [with a man not her husband] is consent of her husband shall be adulterous because in the case of the woman treated as their child for all it involves the possibility of introducing into purposes of intestate the family of the husband a false strain of succession; consent of the blood. Any act on the part of the wife which husband is presumed unless the does that would therefore be adulterous.” Id. contrary is shown by clear and at 1092. Condemnation of adultery, convincing evidence. historically, thus, stemmed from its introduction of “spurious heirs” into the Id. at 70. The Comment to that Section stated family, thereby redirecting the inheritance that, “[the] section [was] designed to reflect away from the husband's biologic children to the modern policy toward minimizing those of a illegitimacy and its impact on inheritance rights, but with safeguards against abuse.” Id. [136 A.3d 762] at 71. The Governor's Commission rewrote Section 2–11(b) using “indigenous” Maryland third party. George P. Smith, Through a Test language, but closely followed the ideas Tube Darkly: Artificial Insemination and the expressed. The Uniform Probate Council, Law, 67 Mich. L.Rev. 127, 134 (1968). As a Maryland Follows Uniform Probate Code, 4 result of the introduction of the “false strain Real Prop. Prob. & Tr. J. 253 (1969). of blood”, the child could be deemed as illegitimate, unable to inherit from the By 1967, concern about the implications of husband's estate. the use of donated sperm in artificial insemination had arisen from a growing Adultery, and the injection of “bad blood” into awareness that donated sperm separated the the family, uprooted the long-held husband from the child, biologically, and presumption that a child born during the raised the specter that the child could be marriage was legitimate, as the biologic regarded as illegitimate, as well as the wife as offspring of the wife and her husband. See C. an adulteress.15 See Allen D. Holloway, Thomas Dienes, Artificial Donor Artificial Insemination: An Examination of Insemination: Perspectives on Legal and the Legal Aspects, 43 A.B.A.J. 1089, 1090 Social Change, 54 Iowa L.Rev. 253, 279 (1957) (“The second type of artificial (1968) (“It is universally recognized that a insemination—using the semen of a donor—is child born in wedlock is presumed the one which poses the grave questions.”). legitimate.”); Smith, 67 Mich. L.Rev. at 140
83 (“The presumption of a child's legitimacy is Syracuse L.Rev. 1009, 1010 (1968) (“It is the grounded in the English common-law concept introduction of the semen of a third party that an offspring is deemed legitimate.”). The donor in the AID process which creates most presumption of legitimacy would be of the legal difficulties[.]”). One overcome, however, by a showing that the commentator, noting that “[t]he trend [in husband was impotent or absent at a time 1965] [was] to narrow rather than enlarge the when conception could have occurred. Smith, area in which children are labeled 67 Mich. L.Rev. at 140. Proof that the wife illegitimate[,]” argued that children born was impregnated by artificial insemination through artificial insemination with donated with donor sperm, then, could overcome the sperm and the consent of the husband should presumption of legitimacy of a child born not be “stigmatized” with illegitimacy, during a marriage. Holloway, 43 A.B.A.J. at particularly if the husband's name was 1092. registered as the father. Elliott L. Biskind, Legitimacy of Children Born by Artificial [447 Md. 665] Insemination, 5 J. Fam. L. 39, 43 (1965). Others advocated for the introduction of a One viable alternative, it appeared, to statutory solution to address the “problem [ ] establish legitimacy of a child born thorough raised by the expanding utilization and artificial insemination with donated sperm acceptance of artificial insemination”. Harry was legislative action expressly legitimizing D. Krause, Bringing the Bastard into the the child, although no state legislature had Great Society—A Proposed Uniform Act on done so by 1957. Id. at 1156 (noting that Legitimacy, 44 Tex. L.Rev. 829, 845 (1966) ; Virginia, Wisconsin, Minnesota, New York and Indiana had contemplated such [447 Md. 666] legislation, but no bills had moved beyond the committee stage). Commentators in the see also Smith, 67 Mich. L.Rev. at 143 period immediately before the passage of (commenting on the unfortunate failure of Section 1–206(b), moreover, noted that “ proposals attempting to legalize the use of artificial insemination” was not an artificial insemination with donated sperm). uncommon occurrence, as “it has been estimated that between 10,000 and 250,000 [136 A.3d 763] issue of artificial insemination live in the United States today [1968–69]. A.I.D. has, in As artificial reproduction developed and fact, become so prevalent in this country that expanded to include in vitro fertilization, the it is big business!” Smith, 67 Mich. L.Rev. at same concerns regarding the use of donated 133; see also Dienes, 54 Iowa L.Rev. at 255 sperm continued to be raised in the literature. (“Estimates generally average about 150,000 See Emily McAllister, Defining the Parent– living Americans born through AID, although Child Relationship in an Age of Reproductive some suggest the number may run to several Technology” Implications for Inheritance, 29 hundred thousand.”). Real Prop. Prob. & Tr. J. 55 (1994) ; Helene S. Shapo, Matters of Life and Death: Commentary also included reflection on the Inheritance Consequences of Reproductive use of donated sperm in artificial Technologies, 25 Hofstra L.Rev. 1093 (1997). insemination, raising again the issue of In IVF, the sperm is combined with mature adultery and questions regarding consent by a eggs in a lab, and one or more fertilized eggs husband in order to legitimize the child and (embryos) may be introduced into the facilitate his or her inheritance rights. See woman's uterus a few days later. American Robert T. Jewett, The Legal Consequences of Congress of Obstetricians and Gynecologists, Artificial Insemination in New York, 19 http://www.acog.org/Patients/FAQs/Treatin
84 g–Infertility (https://perma.cc/5KEG– parentage is whether the parent is genetically Y6GQ). related to the child, which he is not. Mr. Sieglein also points to our holding in Knill v. Section 1–206(b) originated in the midst of Knill, 306 Md. 527, 510 A.2d 546 (1986), in concerns regarding the effect of the use of which we determined that a husband, whose donated sperm in artificial reproduction on wife had had a child by another man during legitimacy and inheritance, rather than on the marriage yet treated the child as his own whether a specific reproductive technique was for twelve years, was not estopped from used. Clearly, the statute engendered a denying a duty to support the child. statutory consent by a husband to legitimize a child born as a result of donated sperm, In re Roberto d.B. involved a situation in rather than as an emphasis on reproductive which an unmarried father provided sperm technique. This conclusion was presciently that was combined with donated eggs and echoed by Emily McAllister in her discussion implanted into a gestational surrogate who of early statutes confronting the use of was not the donor of the eggs nor married to artificial insemination, including Maryland's the father. The process resulted in the birth of Section 1–206(b), when she stated, “There is twins, and the surrogate's name was entered a strong case for construing ‘artificial on the children's birth certificates. Neither insemination,’ as used in [the Maryland the father nor the gestational surrogate statute], as encompassing other methods of wanted her name to appear on the birth assisted conception.” McAllister, 29 Real certificate as the child's mother, as no Prop. Prob. & Tr. J. at 69. The basis for her relationship was intended conclusion rested in the conceptual similarity between artificial insemination and in vitro [136 A.3d 764] fertilization when donated semen is used; “the only “noteworthy difference between IVF between the children and the surrogate. The ... on the one hand and AID on the other is circuit court ruled that a trial court did not the fertilization site.” Id. have the power to remove the surrogate's name and that it would not be in the As a result, we construe Section 1–206(b) to children's best interests were it to do so. preserve the legitimacy of a child conceived through the use of donated sperm during an The primary issue before us, then, was artificial reproductive technique, other than whether the gestational surrogate's name could be removed from the children's birth [447 Md. 667] certificates as mother under Section 5–1002 of the Family Law Article, part of the surrogacy,16 provided the husband consents paternity statute, which was enacted to to the procedure. The term “artificial provide support for children “born out of insemination,” then, in Section 1–206(b) of wedlock.” 399 Md. at 279, 923 A.2d at 122, the Estates and Trusts Article encompasses in quoting Section 5–1002 of the Family Law vitro fertilization, the reproductive technique Article. The paternity statute, however, used in the present case. provided
Mr. Sieglein further asserts, in support of his [447 Md. 668] position that he is not the legal parent of the child and should not be obligated to pay child only that a declaration of paternity could be support, that In re Roberto d.B., 399 Md. 267, set aside, without reference to the maternity 923 A.2d 115 (2007), established that the of the woman who bore the child. Section 5– proper test to be applied in determining
85 1038 of the Family Law Article provided, in surrogate could challenge the imposition of relevant part, that: maternity on the basis of not having a biological connection to the children. (a)(1) Except as provided in paragraph (2) of this subsection, While Section 5–1038 provides a mechanism a declaration of paternity in an for the exclusion of a father, as well as a order is final. gestational mother, as a parent, Section 1– 206(b), in play in the present case, specifies (2)(i) A declaration of paternity that the child born of artificial insemination is may be modified or set aside: the legitimate child of both the mother and the husband when the husband, such as Mr. * * * Sieglein, has consented to the artificial reproduction procedure and the child was 2. if a blood or genetic test done born during the marriage. in accordance with § 5–1029 of this subtitle establishes the Mr. Sieglein also relies on Knill, 306 Md. at exclusion of the individual 527, 510 A.2d at 546, in which a husband named as the father in the denied, during a divorce action, his obligation order. to support a boy, born during the marriage, but who was not his Maryland Code (2012 Repl.Vol.), Section 5– 1038 of the Family Law Article. “Thus, the [136 A.3d 765] court has the power to declare that an alleged father has no paternal status when no genetic biologic child. The husband provided connection is found.” 399 Md. at 277, 923 financial support for the boy until his wife A.2d at 121. sued for divorce.
After establishing that under Maryland law a At the divorce hearing, the husband argued trial court was, in fact, authorized to order the that he had no obligation to support the boy, removal of the mother's name from a birth because his relationship with the child was certificate, we permitted the gestational solely based on a voluntary act on his part, surrogate's name to be removed, because we rather than a legal obligation. The trial court interpreted the statute to “extend the same concluded that the husband was equitably rights to women and maternity as it applies ... estopped from denying his obligation to to men and paternity.” Id. at 284, 923 A.2d at support the child. The husband appealed, and 125. While we acknowledged that, based on we issued a writ of certiorari before argument the language of the statute,17 “the Legislature in the Court of Special Appeals. did not contemplate anything outside of traditional childbirth .... [and] [t]he statute We noted that Section 5–203(b)(1) of the does not provide for ... a situation where Family Law Article provides that, “The children are conceived using an assisted parents of a minor child are jointly and reproductive technology,” id. at 279, 923 A.2d severally responsible for the child's at 122, we “construed the statute to apply support....” Id., 306 Md. at 531, 510 A.2d at equally to both males and females.” Id. at 548, quoting Maryland Code (1984), Section 283, 923 A.2d at 124–25. As such, under the 5–203(b)(1) of the Family Law Article. applicable terms of the statute, the gestational “[P]arents of a minor child” in the statute referred to natural and adoptive parents. Id., [447 Md. 669] citing Maryland Code (1984), Section 5– 308(b) of the Family Law Article.
86 We concluded that the evidence presented at [136 A.3d 766] trial did not support the inference that the wife had foregone her opportunity to seek [447 Md. 671] child support from the natural father as a result of the husband's voluntary support and We had acknowledged the importance of that the wife could still bring a paternity earning capacity two decades earlier in Pet v. action against the natural father. Thus, “we Pet, 238 Md. 492, 497, 209 A.2d 572, 574 believe[d] that [the husband] should not be (1965), in an alimony context: “The rule of penalized for his conduct under the this Court ... is that an award of alimony is to circumstances as described[, and] ... [held] be based on the earning capacity and financial worth of the husband at the time of trial.” We [447 Md. 670] expanded the notion to child support payments in Chalkley v. Chalkley, 240 Md. that [the husband was] not equitably 743, 744, 215 A.2d 807, 808 (1966) ( estopped to deny a duty to support.” Id. at “Ordinarily, the awarding of alimony and 539, 510 A.2d at 552. support should be based on the earning capacity and financial worth of the husband In the present case, the boy born during Mr. and father and the circumstances of the wife Sieglein's and Ms. Schmidt's marriage and children as of the time of the award.”). As resulted from an artificial insemination a seminal matter, therefore, inclusion of the procedure to which Mr. Sieglein consented. term “voluntarily impoverished” anticipated Unlike Knill, where the child was born as a voluntary unemployment or result of the wife's infidelity and voluntarily underemployment. supported by the husband, Mr. Sieglein consented to the use of artificial insemination Within a few years after the enactment of the and, under Section 1–206(b), is the father of statute, the Court of Special Appeals, in the child. Goldberger v. Goldberger, 96 Md.App. 313, 327, 624 A.2d 1328, 1335, cert. denied, 332 Because we have determined that Mr. Sieglein Md. 453, 632 A.2d 150 (1993), recognized is the father of the child under Section 1– voluntary impoverishment as rendering 206(b) of the Estates and Trusts Article, we oneself voluntarily without adequate now turn to the other two questions he resources: presents. Mr. Sieglein first contends that the Circuit Court ignored the traditional meaning [A] parent shall be considered of “voluntary impoverishment” when it found “voluntarily impoverished” he had voluntarily impoverished himself, and whenever the parent has made based the child support payment on his the free and conscious choice, potential income. not compelled by factors beyond his or her control, to render Section 12–204(b) of the Family Law Article himself or herself without provides for imputation of “potential” income adequate resources. when the “parent is voluntarily impoverished,” but does not define voluntary The court's characterization of voluntary impoverishment.18 Review of the legislative impoverishment was based partly on the fact history in 1989 of Senate Bill 49 indicates that that it recognized that the issue had arisen the term “voluntarily impoverished” in the most often when “a parent reduce[d] his or final version of Section 12–204(b) replaced her level of income to avoid paying support by earlier proposed language of “voluntarily quitting, retiring, or changing jobs.” Id. at unemployed or underemployed.”19 326, 624 A.2d at 1335. The traditional notion
87 of voluntary impoverishment, thus, In Wills v. Jones, 340 Md. 480, 485, 667 A.2d contemplated whether a parent had 331, 333 (1995), we recognized that “[t]he intentionally acted to reduce their income in meaning of ‘voluntary impoverishment’ [in an effort to minimize, or eliminate, their child Section 12–204(b) had] not been previously support obligation. Id. at 327, 624 A.2d at addressed by this Court,” but we determined 1335. To aid in its determination of whether a that whether a parent is “voluntarily parent had freely and voluntary impoverished impoverished,” under the traditional notion himself, the intermediate appellate court in as expressed in Goldberger, requires the Goldberger reiterated the factors to be court to “inquire as to the parent's considered: motivations and intentions.” Id. at 489, 667 A.2d at 335. We also recognized in Wills that 1. his or her current physical the pivotal issue was whether the parent had condition; voluntarily impoverished himself, not whether he had done so in order to avoid 2. his or her respective level of child support: education; [136 A.3d 767] [447 Md. 672] In determining whether a 3. the timing of any change in parent is voluntarily employment or financial impoverished, the question is circumstances relative to the whether a parent's divorce proceedings; impoverishment is voluntary, not whether the parent has 4. the relationship of the parties voluntarily avoided paying child prior to the divorce support. The parent's intention proceedings; regarding support payments, therefore, is irrelevant. It is true 5. his or her efforts to find and that parents who impoverish retain employment; themselves “with the intention of avoiding child support ... 6. his or her efforts to secure obligations” are voluntarily retraining if that is needed; impoverished. But, as the court recognized in Goldberger ... a 7. whether he or she has ever parent who has become withheld support; impoverished by choice is “voluntarily impoverished” 8. his or her past work history; regardless of the parent's intent regarding his or her child 9. the area in which the parties support obligations. live and the status of the job market there; and 340 Md. at 494, 667 A.2d at 338 (internal citations omitted) (emphasis omitted). 10. any other considerations presented by either party. [447 Md. 673]
Id. Unlike what Mr. Sieglein alleges, in the present case the circuit court judge applied the traditional notion of voluntary
88 impoverishment when she utilized the testimony provided no reason for him to have Goldberger factors in order to determine left that position. Based upon its findings, the whether Mr. Sieglein was avoiding Circuit Court found Mr. Sieglein to be employment or was underemployed: voluntarily impoverished and imputed an income of $4,052.00 per month, which we [T]he Court has to consider the affirm. individual's current physical condition, prospective level of We finally turn to the issue of whether education, the timing of any Section 1–203(a) of the Family Law Article change in employment for supports the Circuit Court's financial circumstances relative to the proceedings, the [447 Md. 674] relationship of the parties prior to the proceedings, efforts to issuance of a permanent injunction to Ms. find an retain employment, Schmidt against Mr. Sieglein for efforts to secure retraining, if “harassment.” Section 1–203(a) provides: that is needed, whether they have ever withheld support, any (a) In an action for alimony, relevant past work history, the annulment, or divorce, an areas in which the parties live, equity court: and the status of the job market and any other considerations (1) has all the powers of a court presented by either party. of equity; and
Judge Eaves specifically found that Mr. (2) may issue an injunction to Sieglein was in good health and that nothing protect any party to the action precluded him from being employed. The from physical harm or Judge also noted that he had sufficient harassment. education to work in a managerial capacity. Characterizing the relationship between Mr. Maryland Code (2012 Repl.Vol.), Section 1– Sieglein and Ms. Schmidt as acrimonious, the 203 of the Family Law Article (emphasis Judge stated that “[n]either one wants to have added). We “review a trial court's anything to do with the other.” Regarding Mr. determination to grant or deny injunctive Sieglein's efforts to find and retain relief for an abuse of discretion because trial employment to the extent he had been courts, sitting as courts of equity, are granted employed with Sysco, the Judge concluded broad discretionary authority to issue that his effort was insufficient. Although he equitable relief.” State Com'n on had made efforts at finding employment, [136 A.3d 768] Judge Eaves determined that his repetitive contact with the same employers over a short Human Relations v. Talbot County Detention period of time and his attempt to have Center, 370 Md. 115, 127, 803 A.2d 527, 534 Business Machines postdate the start of his (2002). employment constituted a lack of effort based upon his own actions. The Judge further Mr. Sieglein asserts that the circuit court's explained that the area in which the parties grant of the permanent injunction by its lived and the job market overall were not a February 2014 order was improper based on problem in this case. Mr. Sieglein's work the evidence presented, even when taken in a history indicated that he had been steadily light most favorable to Ms. Schmidt and, employed for 12 years with Sysco, and the
89 therefore, was an abuse of the court's In Winston, we reversed the trial court's discretion. He posits that the allegations of denial of an injunction, stating: harassment made by Ms. Schmidt amounted only to “bare assertions of unrelated ... [T]he General Assembly was happenstance encounters” and did not meet unambiguously endowing the the requisite threshold for an injunction. In equity court sitting in divorce, support, Mr. Sieglein points to the Court of alimony and annulment Special Appeals's opinion in Cote v. Cote, 89 proceedings with all the general Md.App. 729, 735, 599 A.2d 869, 872 (1992), powers normally exercised by in which the court affirmed the entry of an that court in other matters. In interlocutory injunction barring the husband addition, the enactment from the marital home, based on the risk of specifies that this authority is “irreparable injury” to the wife should the extended so as to encompass the injunction be denied, a risk Mr. Sieglein right to enjoin a party in contends is not present in this case. Mr. domestic relations proceedings Sieglein bolsters his argument against the from physically harming or permanent injunction by referring to a harassing another party. comment included in Cote to the effect that: “The trial judge stated that the injunction Id. at 648, 431 A.2d at 1333. Chapter 296 of would ‘remain in full force and effect until the 1984 Maryland Laws recodified Section further Order of the Court.’ Therein lies our 3–603(b) as Section 1–203(a) of the Family concern. This injunction has been in force Law Article. Maryland Code (1984). well over a year and no further order of the court has been forthcoming.” Id. at 739, 599 In Galloway v. State, 365 Md. 599, 627–28, A.2d at 874. 781 A.2d 851, 867–68 (2001), we defined harassment as: Section 1–203(a) of the Family Law Article finds its origins in We agree with the reasoning of the Court of Special Appeals in [447 Md. 675] Caldwell v. State, supra, and with those states finding that Section 3–603(b) of the Courts and Judicial the terms “annoy,” “alarm,” and Proceedings Article. Maryland Code (1974, “harass” are commonly 1977 Supp.). Section 3–603(b) provided: understood by ordinary people and, as such, provide fair notice A court of equity sitting in an to potential offenders and action for divorce, alimony, or adequate guidance for annulment, in addition to enforcement. The definition of exercising all the powers of a “annoy” is “to disturb or irritate court of equity, may issue an especially by repeated acts.” An injunction to protect any party alternative definition for annoy to the action from physical is “to harass especially by quick harm or harassment. brief attacks.” The definition of alarm is “to strike with fear.” Maryland Code (1974, 1977 Supp.). We had The applicable definition of occasion to review Section 3–603(b) shortly harass is “to annoy after it was enacted and the trial court's persistently.” authority to issue an injunction. Winston v. Winston, 290 Md. 641, 431 A.2d 1330 (1981).
90 (internal citations omitted). Section 1–203(a) for divorce and, on the same day, the wife of the Family Law Article embodies this filed a petition for a protective order citing definition of harassment and encompasses domestic violence, which was granted after a behavior that persistently annoys another or hearing and barred the husband from disturbs entering the family home. Id. at 731, 599 A.2d at 870. Shortly thereafter, the wife moved for [447 Md. 676] an ex parte injunction to bar her husband from the home. Evidence introduced at the another through repeated hearing for the injunction indicated harassment from both parties, which included [136 A.3d 769] “going into each other's cars, going to each other's residences, and making harassing acts, such as what Judge Eaves found here to telephone calls.” Id. at 732, 599 A.2d at 871. be: The Court of Special Appeals, citing two Circling around her when he elements necessary for injunctive relief— knows that she is present means irreparable injury from a denial of the avoid her. There is a protective injunction and retention of the court's ability order in place. Getting in line to grant relief in the divorce action— behind her when you know it is determined that “a risk of irreparable injury her means that you walk away that could occur, namely, future physical because there is a protective abuse of and order in place.... [T]he reasonableness of fear is to be [447 Md. 677] determined from the perspective of the person by both parties” was present and that “the experiencing it. And that is Ms. injunction prevented both parties from going Schmidt in this case.... There to or entering each other's residences; it in no isn't any reason Mr. Sieglein way compromised the court's ability to grant needs to be in the presence of complete relief in the divorce action.” Cote, Ms. Schmidt in the direct, 89 Md.App. at 735, 599 A.2d at 872. As such, immediate or proximate the intermediate appellate court held that the presence of Ms. Schmidt and trial court had not abused its discretion when the children in this case. it issued the injunction barring the husband from the home. Id. at 737, 599 A.2d at 873. That harassment could constitute irreparable The concern of the court regarding the length injury in the present case is supported by the of the injunction in Cote has no bearing on findings. Cf. El Bey v. Moorish Science the present case in which a permanent Temple of America, Inc., 362 Md. 339, 355– injunction was appropriately entered. 56, 765 A.2d 132, 140–141 (2001). JUDGMENT OF THE COURT OF Our conclusion that the trial court judge did SPECIAL APPEALS AFFIRMED; COSTS not abuse her discretion in entering a IN THIS COURT AND THE COURT OF permanent injunction against Mr. Sieglein for SPECIAL APPEALS TO BE PAID BY harassment is supported by Cote, in which the PETITIONER. Court of Special Appeals reviewed a circuit court's issuance of an injunction pursuant to WATTS, J., concurs. Section 1–203(a)(2). 89 Md.App. at 729, 599 A.2d at 869. In that case, the husband filed WATTS, J., concurring.
91 Respectfully, I concur.1 I would affirm the things, “to promote the general welfare and Court of Special Appeals's determination that best interests of children born out of the child is the legitimate child of wedlock ” and “to impose on the mothers and fathers of children born out of [136 A.3d 770] wedlock the basic obligations and responsibilities of parenthood[.]” (Emphasis Stephen Sieglein (“Sieglein”), Petitioner, and added). See also Evans v. Wilson, 382 Md. Laura Schmidt (“Schmidt”), Respondent, and 614, 634, 856 A.2d 679, 691 (2004) (“[O]ne of that both Sieglein and Schmidt are the child's the purposes of the paternity act is to promote legal parents. I would not hold, however, that the general welfare and best interests of Md.Code Ann., Est. & Trusts (1974, 2011 children born out of wedlock. ” (Citation and Repl.Vol.) (“ET”) § 1–206(b)'s reference to internal quotation marks omitted) (emphasis “artificial insemination” includes the in original)). In any event, even within circumstance where a child is conceived Subtitle 10 is a presumption of legitimacy. through in vitro fertilization (“IVF”) using a Specifically, FL § 5–1027(c)(1) provides: donated egg and donated sperm, i.e., that “There is a rebuttable presumption that the artificial insemination includes IVF. I think child is the legitimate child of the man to that the Court need not make this whom its mother was married at the time of determination. Instead, I would hold that ET conception.” § 1–206(a) applies to the circumstances of this Rather, because the child was born during the marriage, ET § 1–206 applies. This Court has [447 Md. 678] explained that “an action to establish paternity is more appropriately brought case, and that an individual may be declared a under the Estates & Trusts Article when the parent pursuant to ET § 1–206(a) where a child at issue has been born during a child is conceived during the marriage, and marriage.” Evans, 382 Md. at 627–28, 856 with the consent of both parties, through IVF A.2d at 687 (citation and internal quotation using a donated egg and donated sperm, and marks omitted). Indeed, “where a child is where the individual has failed to present presumed legitimate[,] and where two good cause sufficient to rebut the statutory presumption of legitimacy. Rather than [447 Md. 679] judicially interpreting ET § 1–206(b)'s definition of artificial insemination, I would men each acknowledge paternity of that child, commend the matter to the General Assembly the procedure for considering the issue of to determine whether ET § 1–206(b), a paternity under the Estates and Trusts Article statute that was enacted before the existence is preferable because it presents the more of IVF, should be amended in light of satisfactory and less traumatic means of numerous advances in reproductive medicine. establishing paternity.” Id. at 628, 856 A.2d at 687 (citations and internal quotation As an initial matter, I would conclude that, marks omitted). To be sure, this is not a case because this case involves a child who was in which two men are claiming paternity of a born during Sieglein's and Schmidt's child born during a marriage. However, marriage, the statutes in Subtitle 10 because the child was born during the (Paternity Proceedings) of Title 5 (Children) marriage and not out of wedlock, I would of the Family Law Article do not apply. As conclude as an initial matter that ET § 1–206 Md.Code Ann., Fam. Law (1984, 2012 is the statute that governs in this case. Repl.Vol.) (“FL”) § 5–1002(b) makes clear, the purpose of Subtitle 10 is, among other
92 ET § 1–206, concerning the presumption of [447 Md. 680] legitimacy, provides, in its entirety, as follows: consider whether ET § 1–206(b) includes children who are conceived through IVF as (a) Marriage of parents.—A opposed to artificial insemination because ET child born or conceived during a § 1–206(a) applies in the first instance. marriage is presumed to be the legitimate child of both spouses. Importantly, in my view, Sieglein has not Except as provided in [ET] § 1– presented any evidence to rebut ET § 1– 207 ..., a child born at any time 206(a)'s presumption of legitimacy. Indeed, absent evidence of fraud or duress, no parent [136 A.3d 771] who voluntarily consented to the use of IVF with an anonymous donor to conceive a child after his parents have during marriage could overcome the participated in a marriage presumption of legitimacy that is established ceremony with each other, even by ET § 1–206(a). For example, in this case, if the marriage is invalid, is Sieglein has not alleged that Schmidt acted presumed to be the legitimate unilaterally in undergoing IVF, or that his child of both parents. signature on the consent form with the Shady Grove Fertility Reproductive Science Center (b) Artificial insemination.—A was forged or made under duress. Indeed, by child conceived by artificial all accounts, the record reveals that Sieglein insemination of a married was an active participant in the couple's woman with the consent of her decision to pursue IVF. And, once the child husband is the legitimate child was conceived and born, Sieglein was of both of them for all purposes. identified on the child's birth certificate as the Consent of the husband is child's father, and Sieglein participated in the presumed. care of the child immediately following the child's birth. Sieglein has not alleged that his Thus, ET § 1–206(a) creates a statutory participation was involuntary, or that his presumption of legitimacy for children who consent was obtained by any manner of fraud are born to a married mother. And, ET § 1– or coercion. The donor process was 206(b) extends that presumption of anonymous, and there is no other putative legitimacy to children who are conceived by father who contests the child's parentage. artificial insemination of a married mother Thus, I would have no difficulty in concluding with the consent of her husband. As this that, under ET § 1–206(a)'s plain language, Court explained in Evans, 382 Md. at 629, Sieglein is the parent of the child who was 856 A.2d at 688, “a blood or genetic test may conceived during the marriage, with the be ordered only upon a showing of good consent of both parties, through IVF using a cause” sufficient to overcome the statutory donated egg and anonymously donated presumption of legitimacy under ET § 1–206, sperm, where Sieglein has failed to present and, in “making the determination of good good cause to rebut the statutory cause, the [trial] court must weigh the various presumption of legitimacy. interests of the parties and, in particular, consider whether blood or genetic testing To conclude otherwise—that a child who is would be in the best interests of” the child. In conceived during a marriage and with the any event, in my view, there is no need even consent of both parties through IVF using a to donated egg and donated sperm is not presumed to be the legitimate child of both
93 spouses—would be contrary to the statutory IV, Section 3A, she also participated in the presumption of legitimacy. This simply could decision and adoption of this opinion. not have been the General Assembly's intent. 1 Rather, by enacting ET § 1–206(a)' s Section 1–206 of the Estates and Trusts predecessor in 1969, the General Assembly Article provides: clearly and unequivocally demonstrated an (a) A child born or conceived intent to extend a statutory presumption of during a marriage is presumed legitimacy to children who are to be the legitimate child of both spouses. Except as provided in § [447 Md. 681] 1–207 of this subtitle, a child born or conceived during a marriage. born at any time after his Accordingly, I would hold that, under ET § 1– parents have participated in a 206(a), because the child was conceived and marriage ceremony with each born during Sieglein's and Schmidt's other, even if the marriage is marriage, the presumption of legitimacy invalid, is presumed to be the applies, the child is presumed to be the child legitimate child of both parents. of both Sieglein and Schmidt, and the presumption has not (b) A child conceived by artificial insemination of a [136 A.3d 772] married woman with the consent of her husband is the been rebutted. In other words, Sieglein is the legitimate child of both of them child's father and legal parent, and thus is for all purposes. Consent of the “jointly and severally responsible for the husband is presumed. child's support, care, nurture, welfare, and education” under FL § 5–203. Because I Maryland Code (1974, 2011 Repl.Vol.). would resolve this case through application of 2 “In vitro fertilization (IVF) is a complex ET § 1–206(a), I would refrain from engaging series of procedures used to treat fertility or in an analysis of whether ET § 1–206(b)'s genetic problems and assist with the reference to “artificial insemination” includes conception of a child. During IVF, mature IVF. Recognizing that IVF did not exist at the eggs are collected (retrieved) from ovaries time that ET § 1–206(b) was enacted and that and fertilized by sperm in a lab. Then the this circumstance casts serious doubt on the fertilized egg (embryo) or eggs are implanted General Assembly's intent to have artificial in [the] uterus.” The Mayo Clinic, insemination include IVF and other advances www.mayoclinic.org, in reproductive medicine, I would refer the http://www.mayoclinic.org/tests– matter of amending the decades-old statute to procedures/in–vitro– the General Assembly for its consideration. fertilization/basics/definition/prc–20018905 (https://perma.cc/5S87–R75M). For the above reasons, respectfully, I concur. 3 In vitro fertilization (IVF) is a procedure in ------which a physician will remove one or more eggs from the ovaries that are then fertilized Notes: by sperm inside the embryology laboratory. * Battaglia, J., now retired, participated in the Shady Grove Fertility, www.shady grove hearing and conference of this case while an fertility.com, active member of this court; after being https://www.shadygrovefertility.com/treatm recalled pursuant to the Constitution, Article ents-success/advanced-treatments/in-vitro-
94 fertilization-ivf. (https://perma.cc/ECE2– 8 Section 12–204 of the Family Law Article KGXQ). provides, in relevant part:
4 Intracytoplasmic sperm injection (ICSI) is (b)(1) Except as provided in performed as part of an in vitro fertilization paragraph (2) of this subsection, (IVF) procedure if medically indicated. It is a if a parent is voluntarily process in which an embryologist injects a impoverished, child support single sperm into the cytoplasm (center) of may be calculated based on a each egg. Shady Grove Fertility, determination of potential www.shadygrovefertility.com, income. https://www.shadygrovefertility.com/treatm ents-success/advanced-treatments/in-vitro- (2) A determination of potential fertilization-ivf/advanced-laboratory- income may not be made for a technologies. (https://perma.cc/3PKJ– parent who: NSC7). (i) is unable to work because of 5 Assisted hatching (AH) is a procedure a physical or mental disability; performed prior to embryo transfer in or selected cases. An embryo needs to escape or hatch from its protein shell—called the zona (ii) is caring for a child under pellucida—before it can implant in the uterus. the age of 2 years for whom the In AH, an embryologist uses a laser to parents are jointly and severally dissolve part of the zona to facilitate the responsible. hatching process. Shady Grove Fertility, www.shadygrove fertility.com, Maryland Code (1989, 2012 Repl.Vol.). https://www.shadygrovefertility.com/treatm 9 ents-success/advanced-treatments/in-vitro- During testimony at the hearing Mr. Sieglein fertilization-ivf/advanced-laboratory- indicated that the monthly rent on the technologies. (https://perma.cc/3PKJ– property was $1,150.00 prior to July of 2013 NSC7). when it increased to $1,200.00.
10 6 Also known as Frozen Embryo Transfer The Court of Special Appeals was presented (FET), embryo cryopreservation involves with three questions: freezing embryos through a process called I. Did the Court below err in vitrification. This process is done by placing ruling that Appellant was the the embryo into a solution and then rapidly parent of a child conceived freezing it in liquid nitrogen. Shady Grove through ‘in vitro’ fertilization Fertility, www.shadygrove fertility.com, with a donated egg and donated https://www.shadygrovefertility.com/resourc sperm? es/educational-resources/articles/frozen- embryo-transfers-explained. II. Did the Court err and/or (https://perma.cc/W4A3–SXTY). abuse her discretion in granting 7 Voluntary impoverishment “ask[s] whether an Injunction against [an individual's] current impoverishment is Appellant? by his ... own choice, intentionally, of his ... own free will.” Wills v. Jones, 340 Md. 480, III. Did the Court err and/or 496, 667 A.2d 331, 338 (1995) (internal abuse her discretion in finding quotation omitted). that Appellant was “voluntarily impoverished”?
95 11 All references to Section 1–206(b) of the 16 We leave for another day whether the term Estates and Trusts Article throughout are to “artificial insemination” in Section 1–206(b) Maryland Code (1974, 2011 Repl.Vol.). The includes gestational surrogacy. language of the Section has remained the 17 same to the present day. Our reference was to Section 5–1027 of the Family Law Article, which provided then, as it 12 Intrauterine, or “artificial”, insemination does now, in relevant part: was defined, contemporaneously, as the “introduction of semen into the uterus or (c)(1) There is a rebuttable oviduct by other than natural means.” presumption that the child is Webster's Third New International Dictionary the legitimate child of the man Unabridged, 124 (1961). to whom its mother was married at the time of 13 Intrafollicular insemination involves conception. injecting the semen directly into an ovarian follicle. Intraperitoneal insemination injects Maryland Code (2012 Repl.Vol.), Section 5– the semen directly into the peritoneal cavity. 1027(c)(1) of the Family Law Article ; In re Intratubal, or intrafallopian, insemination Roberto d.B., 399 Md. 267, 279, 923 A.2d 115, refers to the injection of washed semen into 122 (2007). the fallopian tube. Intrauterine insemination 18 Section 12–204(b) of the Family Law is a procedure by which specially washed Article provides: sperm is injected through the cervix directly into the uterus. Dorland's Illustrated Medical (b)(1) Except as provided in Dictionary, 943 (32nd ed. 2012). paragraph (2) of this subsection, if a parent is voluntarily 14 Article 93 was recodified in 1974 as the impoverished, child support Estates and Trusts Article. 1974 Maryland may be calculated based on a Laws, Chapter 11. determination of potential 15 The use of the husband's, or non-donor, income. sperm in an artificial insemination procedure does not raise legitimacy concerns, as the (2) A determination of potential biological link between the husband and child income may not be made for a remains intact. See Allen D. Holloway, parent who: Artificial Insemination: An Examination of the Legal Aspects, 43 A.B.A.J. 1089, 1090 (i) is unable to work because of (1957) (“It is reasonably doubtful that any a physical or mental disability; court would hold that the child born by or artificial insemination through the use of the husband's semen, with his consent, would not (ii) is caring for a child under be a legitimate child.”); Elliott L. Biskind, the age of 2 years for whom the Legitimacy of Children Born by Artificial parents are jointly and severally Insemination, 5 J. Fam. L. 39, 44 (1965) responsible. (“With respect to homologous insemination, Maryland Code (1989, 2012 Repl.Vol.), there can be little, if any, quarrel with the Section 12–204(b) of the Family Law Article. assertion that children born as a result are legitimate.”). 19 A similar change was made, prior to enactment, to the definition of “income” in Section 12–201, replacing “unemployed or
96 underemployed” with the term “voluntarily impoverished” as the trigger for basing a parent's income on their potential, rather than actual income.
1 I agree with the Majority that the Circuit Court for Harford County (“the circuit court”) was correct in concluding that Stephen Sieglein (“Sieglein”), Petitioner, was voluntarily impoverished under Md.Code Ann., Fam. Law (1984, 2012 Repl.Vol.) (“FL”) § 12–204(b) and in imputing potential income to Sieglein for purposes of calculating his child support obligations, see Maj. Op. at 673–74, 136 A.3d at 767–68, and that the circuit court did not abuse its discretion in granting a permanent injunction to Laura Schmidt, Respondent, pursuant to FL § 1– 203, see Maj. Op. at 676–77, 136 A.3d at 769.
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97 Factsheet: Conover v. Conover and De Facto Parenthood What is Conover v. Conover about? In 2009, Michael Conover, a transgender man, and his partner decided to have a child together. Michael’s partner became pregnant through artificial insemination and gave birth to their child in 2010. Michael and his partner raised their child together for two years—but their relationship ended. After their breakup, the lower courts in Maryland held that Michael’s partner could legally deny him visitation with their son because the courts in Maryland did not view a non-biological, non-adoptive parent like Michael as a legal parent of his child. At that time, Maryland did not recognize de facto parenthood. De facto parenthood gives legal recognition to a parent-child relationship when the parent lacks a biological or adoptive connection to the child. Maryland’s refusal to recognize de facto parenthood made it nearly impossible for a non-biological or non-adoptive parent to obtain custody or visitation of their child when the biological or adoptive parent did not consent. FreeState Justice represented Michael in appealing the lower courts’ decisions to Maryland’s highest court, the Court of Appeals. What was the outcome of Conover v. Conover? On April 5, 2016, the Maryland Court of Appeals heard arguments for and against the legal recognition of de facto parenthood. On July 7, 2016, the Court unanimously held that de facto parents must be given legal recognition, meaning that children’s relationships with their parents are entitled to legal protection—even if their parents are not parents by blood or adoption. A non-biological, non-adoptive parent who qualifies as a de facto parent now stands on equal footing with a biological or adoptive parent when it comes to visitation and custody of their child. Who qualifies as a de facto parent? To be a de facto parent, a person must be able to prove the following: 1. The biological or adoptive parent approved of and fostered the formation of a parental relationship between the child and non-adoptive/non-biological parent; 2. The non-adoptive/non-biological parent lived with the child; 3. The non-adoptive/non-biological parent assumed responsibility for the child’s care and well-being, without the expectation of financial compensation; and 4. The non-adoptive/non-biological parent developed a long-lasting, bonded, dependent, parental relationship with the child. What does this mean for LGBTQ+ parents in Maryland? LGBTQ+ parents in Maryland now have legal standing to request and obtain visitation with or custody of their child, regardless of the existence of a biological or adoptive relationship. So long as the non-biological/non-adoptive parent can show the four requirements above, they have the same ability to seek child custody and visitation as biological/adoptive parents.
98 Does de facto parenthood fully secure legal recognition for LGBTQ+ families? No. Although it is a very important legal protection for LGBTQ+ families, de facto parenthood does not protect all LGBTQ+ families, and may not provide full legal protection to all aspects of a parent-child relationship. For instance, if a couple chooses to conceive a child by artificial insemination but breaks up before the child is born, the non-biological/non- adoptive parent would not be able to demonstrate that they are a de facto parent of the child (because the test for de facto parenthood requires having lived with the child and having raised the child after the child’s birth). And, the decision in Conover only addresses child custody and visitation, and only governs how those issues will be decided in Maryland— the decision does not establish whether a de facto parent is considered a full legal parent for other purposes, such as whether the de facto parent is legally obligated to support the child financially; whether the child will be able to access health insurance, Social Security, and other benefits as a beneficiary of the de facto parent; whether the child will inherit after the de facto parent’s death; or whether the de facto parent’s relationship with their child will be legally recognized in states other than Maryland. Therefore, LGBTQ+ families should still take additional steps to ensure their family relationships will be legally recognized, such as seeking a judicial declaration of parentage or a second-parent adoption. Is de facto parenthood limited to LGBTQ+ families? No. The decision in Conover is particularly impactful for LGBTQ+ families because most LGBTQ+ families include at least one non-biological parent. However, step-parents in opposite-sex relationships, or other people who are not biological or adoptive parents but meet the requirements to be a de facto parent, could qualify as de facto parents. How should LGBTQ+ parents protect their parental rights? If you are a non-biological or non-adoptive parent, the recommended way to protect your rights as a parent is to obtain a judicial declaration of parentage or a second-parent adoption. If you would like more information or assistance regarding your rights as an LGBTQ+ parent, you can contact FreeState Justice.
Website: https://freestate-justice.org/need-help/ Phone: (410) 625-5428
This factsheet gives general information about the Conover v. Conover decision and its impact on LGBTQ+ families generally. It is not a substitute for legal advice from a lawyer about your particular situation. If you need specific legal advice about how the Conover decision and the recognition of de facto parenthood apply to you, please contact FreeState Justice for a legal intake, or contact another attorney familiar with LGBTQ+ family law matters.
99 Protecting Your Family After Marriage Equality: What You Need To Know
We have seen unprecedented advances in equality for same-sex couples now that we have marriage equality nationwide. In addition to the dignity and respect that marriage equality provides for our relationships, marriage provides tremendous legal and financial protections to same-sex spouses. However, marrying does not provide all the protections your family needs to be legally secure – there are very important legal steps that all same-sex spouses and transgender spouses need to take to ensure that their families are protected.
1. Protect your children with an adoption or parentage judgment We still strongly recommend that all non-biological parents get an adoption or judgment from a court recognizing that they are a legal parent, even if they are married and even if they are listed as a parent on the birth certificate. Having your name on the birth certificate does not guarantee protections if your legal parentage is challenged in court. Being married to a birth parent does not automatically mean your parental rights will be fully respected if they are ever challenged. There is no way to guarantee that your parental rights will be respected by a court unless you have an adoption or court judgment. Without this, you could lose any right to your child if something happens to the other parent or if you break up. For example, if the birth parent dies and you are not recognized as a parent, your child could end up in foster care or with a relative instead of being able to stay with you. If you use a known donor, depending on your situation, the donor could be considered to be a legal father unless you terminate any rights he may have in an adoption. If you end up receiving Medicaid or other government benefit, the government could bring a court case to make the donor a legal father and require him to pay for the benefit your child receives. Spending a little time and money doing an adoption or getting a parentage judgment now can save you from being separated from your child and from spending thousands of dollars in legal fees later. For more information about how to get an adoption or parentage judgment in your state, contact NCLR.
If you have any questions about marriage and family protections, or for more information about legal rights in your state, contact NCLR at www.nclrights.org/gethelp or 1.800.528.6257
100 2. Protect your and your spouse’s property and decisionmaking with estate planning All married couples should make sure that they have planned for what will happen to their spouse if one of them passes away through estate planning. This could be through a will or trust, or designating your spouse as a beneficiary on your financial accounts. You should also fill out healthcare directives. See www.caringinfo.org for blank healthcare directives in your state. 3. Protect your spouse’s ability to obtain public benefits If you or your spouse are older, or if one of you has a disability, make sure you understand your rights under Social Security and Medicare. Your spouse may be able to receive more benefits as your spouse than on his or her own. If you think you may be able to get spousal Social Security benefits, you should apply as soon as possible because the start date for these benefits is tied to when you apply.
If you have any questions about marriage and family protections, or for more information about legal rights in your state, contact NCLR at www.nclrights.org/gethelp or 1.800.528.6257
101 SUPREME COURT OF THE UNITED STATES V. L. v. E. L., ET AL. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA No. 15–648 Decided March 7, 2016
PER CURIAM. A Georgia court entered a final judgment of adoption making petitioner V. L. a legal parent of the children that she and respondent E. L. had raised together from birth. V. L. and E. L. later separated while living in Alabama. V. L. asked the Alabama courts to enforce the Georgia judgment and grant her custody or visitation rights. The Alabama Supreme Court ruled against her, holding that the Full Faith and Credit Clause of the United States Constitution does not require the Alabama courts to re- spect the Georgia judgment. That judgment of the Ala- bama Supreme Court is now reversed by this summary disposition. I V. L. and E. L. are two women who were in a relation- ship from approximately 1995 until 2011. Through as- sisted reproductive technology, E. L. gave birth to a child named S. L. in 2002 and to twins named N. L. and H. L. in 2004. After the children were born, V. L. and E. L. raised them together as joint parents. V. L. and E. L. eventually decided to give legal status to the relationship between V. L. and the children by having V. L. formally adopt them. To facilitate the adoption, the couple rented a house in Alpharetta, Georgia. V. L. then filed an adoption petition in the Superior Court of Fulton County, Georgia. E. L. also appeared in that proceeding. While not relinquishing her own parental rights, she gave her express consent to V. L.’s adoption of the children as a
102 second parent. The Georgia court determined that V. L. had complied with the applicable requirements of Georgia law, and entered a final decree of adoption allowing V. L. to adopt the children and recognizing both V. L. and E. L. as their legal parents. V. L. and E. L. ended their relationship in 2011, while living in Alabama, and V. L. moved out of the house that the couple had shared. V. L. later filed a petition in the Circuit Court of Jefferson County, Alabama, alleging that E. L. had denied her access to the children and interfered with her ability to exercise her parental rights. She asked the Alabama court to register the Georgia adoption judg- ment and award her some measure of custody or visitation rights. The matter was transferred to the Family Court of Jefferson County. That court entered an order awarding V. L. scheduled visitation with the children. E. L. appealed the visitation order to the Alabama Court of Civil Appeals. She argued, among other points, that the Alabama courts should not recognize the Georgia judg- ment because the Georgia court lacked subject-matter jurisdiction to enter it. The Court of Civil Appeals rejected that argument. It held, however, that the Alabama family court had erred by failing to conduct an evidentiary hear- ing before awarding V. L. visitation rights, and so it re- manded for the family court to conduct that hearing. The Alabama Supreme Court reversed. It held that the Georgia court had no subject-matter jurisdiction under Georgia law to enter a judgment allowing V. L. to adopt the children while still recognizing E. L.’s parental rights. As a consequence, the Alabama Supreme Court held Ala- bama courts were not required to accord full faith and credit to the Georgia judgment. II The Constitution provides that “Full Faith and Credit shall be given in each State to the public Acts, Records,
103 and judicial Proceedings of every other State.” U. S. Const., Art. IV, §1. That Clause requires each State to recognize and give effect to valid judgments rendered by the courts of its sister States. It serves “to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation.” Milwaukee County v. M. E. White Co., 296 U. S. 268, 277 (1935). With respect to judgments, “the full faith and credit obligation is exacting.” Baker v. General Motors Corp., 522 U. S. 222, 233 (1998). “A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.” Ibid. A State may not disregard the judgment of a sister State because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits. On the contrary, “the full faith and credit clause of the Constitu- tion precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the valid- ity of the legal principles on which the judgment is based.” Milliken v. Meyer, 311 U. S. 457, 462 (1940). A State is not required, however, to afford full faith and credit to a judgment rendered by a court that “did not have jurisdiction over the subject matter or the relevant parties.” Underwriters Nat. Assurance Co. v. North Caro- lina Life & Accident & Health Ins. Guaranty Assn., 455 U. S. 691, 705 (1982). “Consequently, before a court is bound by [a] judgment rendered in another State, it may inquire into the jurisdictional basis of the foreign court’s decree.” Ibid. That jurisdictional inquiry, however, is a limited one. “[I]f the judgment on its face appears to be a ‘record of a court of general jurisdiction, such jurisdiction over the cause and the parties is to be presumed unless disproved by extrinsic evidence, or by the record itself.’ ”
104 Milliken, supra, at 462 (quoting Adam v. Saenger, 303 U. S. 59, 62 (1938)). Those principles resolve this case. Under Georgia law, as relevant here, “[t]he superior courts of the several counties shall have exclusive jurisdiction in all matters of adoption.” Ga. Code Ann. §19–8–2(a) (2015). That provi- sion on its face gave the Georgia Superior Court subject- matter jurisdiction to hear and decide the adoption peti- tion at issue here. The Superior Court resolved that matter by entering a final judgment that made V. L. the legal adoptive parent of the children. Whatever the merits of that judgment, it was within the statutory grant of juris- diction over “all matters of adoption.” Ibid. The Georgia court thus had the “adjudicatory authority over the subject matter” required to entitle its judgment to full faith and credit. Baker, supra, at 233. The Alabama Supreme Court reached a different result by relying on Ga. Code Ann. §19–8–5(a). That statute states (as relevant here) that “a child who has any living parent or guardian may be adopted by a third party . . . only if each such living parent and each such guardian has voluntarily and in writing surrendered all of his or her rights to such child.” The Alabama Supreme Court con- cluded that this provision prohibited the Georgia Superior Court from allowing V. L. to adopt the children while also allowing E. L. to keep her existing parental rights. It further concluded that this provision went not to the merits but to the Georgia court’s subject-matter jurisdic- tion. In reaching that crucial second conclusion, the Ala- bama Supreme Court seems to have relied solely on the fact that the right to adoption under Georgia law is purely statutory, and “ ‘[t]he requirements of Georgia’s adoptions statutes are mandatory and must be strictly construed in favor of the natural parents.’ ” App. to Pet. for Cert. 23a– 24a (quoting In re Marks, 300 Ga. App. 239, 243, 684 S. E. 2d 364, 367 (2009)).
105 That analysis is not consistent with this Court’s control- ling precedent. Where a judgment indicates on its face that it was rendered by a court of competent jurisdiction, such jurisdiction “ ‘is to be presumed unless disproved.’ ” Milliken, supra, at 462 (quoting Adam, supra, at 62). There is nothing here to rebut that presumption. The Georgia statute on which the Alabama Supreme Court relied, Ga. Code Ann. §19–8–5(a), does not speak in juris- dictional terms; for instance, it does not say that a Georgia court “shall have jurisdiction to enter an adoption decree” only if each existing parent or guardian has surrendered his or her parental rights. Neither the Georgia Supreme Court nor any Georgia appellate court, moreover, has construed §19–8–5(a) as jurisdictional. That construction would also be difficult to reconcile with Georgia law. Georgia recognizes that in general, subject-matter juris- diction addresses “whether a court has jurisdiction to decide a particular class of cases,” Goodrum v. Goodrum, 283 Ga. 163, 657 S. E. 2d 192 (2008), not whether a court should grant relief in any given case. Unlike §19–8–2(a), which expressly gives Georgia superior courts “exclusive jurisdiction in all matters of adoption,” §19–8–5(a) does not speak to whether a court has the power to decide a general class of cases. It only provides a rule of decision to apply in determining if a particular adoption should be allowed. Section 19–8–5(a) does not become jurisdictional just because it is “ ‘mandatory’ ” and “ ‘must be strictly con- strued.’ ” App. to Pet. for Cert. 23a–24a (quoting Marks, supra, at 243, 684 S. E. 2d, at 367). This Court “has long rejected the notion that all mandatory prescriptions, however emphatic, are properly typed jurisdictional.” Gonzalez v. Thaler, 565 U. S. 134, ___ (2012) (slip op., at 10–11) (internal quotation marks and ellipsis omitted). Indeed, the Alabama Supreme Court’s reasoning would give jurisdictional status to every requirement of the Geor-
106 gia adoption statutes, since Georgia law indicates those requirements are all mandatory and must be strictly construed. Marks, supra, at 243, 684 S. E. 2d, at 367. That result would comport neither with Georgia law nor with common sense. As Justice Holmes observed more than a century ago, “it sometimes may be difficult to decide whether certain words in a statute are directed to jurisdiction or to merits.” Fauntleroy v. Lum, 210 U. S. 230, 234–235 (1908). In such cases, especially where the Full Faith and Credit Clause is concerned, a court must be “slow to read ambiguous words, as meaning to leave the judgment open to dispute, or as intended to do more than fix the rule by which the court should decide.” Id., at 235. That time-honored rule controls here. The Georgia judgment appears on its face to have been issued by a court with jurisdiction, and there is no established Georgia law to the contrary. It follows that the Alabama Supreme Court erred in refusing to grant that judgment full faith and credit. The petition for writ of certiorari is granted. The judg- ment of the Alabama Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.
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FAMILY LAW
ADOPTION ) ALTHOUGH SURROGACY CONTRACT INVOLVING PAYMENT OF FEE TO BIRTH MOTHER IS ILLEGAL AND UNENFORCEABLE UNDER MARYLAND LAW, INVALID PAYMENTS DO NOT BAR APPROVAL OF ADOPTION PETITION
December 19, 2000
The Honorable John F. Fader, II Circuit Court for Baltimore County
You have asked for our opinion concerning the legality of a “surrogate adoption” in Maryland when a fee is paid to the birth mother.1 A surrogate adoption involves an adoption by one or both members of a couple of a child born pursuant to a “surrogacy contract” with the birth mother.
In our opinion, surrogacy contracts that involve the payment of a fee to the birth mother are, in most instances, illegal and unenforceable under Maryland law. However, the decision whether to grant an adoption petition turns on the best interests of the child. In the context of a “surrogate adoption,” a court may consider the payment of a surrogacy fee to the extent that it bears on that issue or on related issues such as the voluntariness of the birth mother’s consent to the adoption. The payment of a surrogacy fee does not by itself bar approval of an adoption petition.
I
Surrogacy Contracts
Under what has come to be known as a “surrogacy contract,” a woman agrees to bear a child and then surrender that child to the other parties to the contract in return for certain payments and other promises. Under a “traditional” surrogacy agreement, the surrogate
1 You indicate that your interest in this question has been prompted by an adoption proceeding that you have under advisement. This opinion addresses only the legal question you have posed. We express no opinion on the merits of the adoption petition in the case before you.
108 Gen. 348] 349 mother is artificially inseminated with the sperm of the intended father, carries the child to term, and relinquishes parental rights after birth. The father acknowledges paternity and takes custody of the child; his spouse then typically adopts the child.2 In re Marriage of Moschetta, 30 Cal.Rptr.2d 893, 894 (Cal.Ct.App.1994); 46 Or. Op. Atty. Gen. 221 (1989), 1989 WL 439814.
In addition to the basic agreement that the surrogate mother will become pregnant, carry the child to term, and take all actions necessary to transfer physical and legal custody to the intended parents, a surrogacy contract may also impose other obligations on the woman. For example, the contract may require that the surrogate mother follow the medical directions of clinic personnel, submit to medical testing, abstain from alcohol, tobacco, or other drugs, and refrain from sexual relations around the time that fertilization or implantation is attempted. Mark A. Johnson, Some Observations Concerning the Law of Surrogacy (April 1996),
2 In a variation called a “gestational surrogacy contract,” the woman is impregnated with a fertilized embryo, which may be the result of in vitro fertilization of the egg of the intended mother with the sperm of the intended father. See, e.g., Johnson v. Calvert, 851 P.2d 776, 778 (Cal.), cert. denied, 510 U.S. 874 (1993); Soos v. Superior Court, 897 P.2d 1356 (Ariz.Ct.App. 1994); Belsito v. Clark, 644 N.E.2d 760 (Ohio Ct.Com.Pl. 1994). In those circumstances, both of the prospective parents may be genetically related to the child, while the surrogate mother provides only a “host uterus.” Soos, supra, at 472 & n.1. In another variation, a gestational surrogacy contract may involve a sperm and an egg from anonymous donors, with the result that the child has no genetic relation to either the birth mother or the intended parents. In re Marriage of Buzzanca, 72 Cal.Rptr.2d 280 (Cal.Ct.App. 1998); Jaycee B. v. Superior Court, 49 Cal.Rptr.2d 694, 695 (Cal.Ct.App. 1996).
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In return, the other parties to the contract – i.e., the intended parents – ordinarily agree to make payments to the birth mother at prescribed times and to assume custody and all financial responsibility for the child regardless of the child’s physical or mental condition. Johnson, supra.
II
Analysis
A. Maryland Statutes
Two criminal provisions of Maryland law potentially forbid the payment of a fee in connection with a surrogacy agreement. One bans the payment of compensation in connection with an adoption. The other outlaws child-selling. The Legislature has also made several attempts during the past two decades to specifically address surrogacy contracts without success.
1. Ban on Compensation Related to Adoption ) FL §5- 327(a)
The State adoption law contains an explicit prohibition against the payment of compensation to either the birth parents (termed in the law “natural parents”) or the adoptive parents. It provides:
(1) Except as otherwise provided, an agency, institution, or individual who renders any service in connection with the placement of an individual for adoption, or in connection with an agreement for the custody of an individual in contemplation of adoption, may not charge or receive from or on behalf of either the natural parent of the individual to be adopted, or from or on behalf of the individual who is adopting the individual, any compensation for the placement or agreement.
(2) This subsection does not prohibit the payment, by any interested person, of reasonable and customary charges or fees for hospital or medical or legal services.
110 Gen. 348] 351
Annotated Code of Maryland, Family Law Article (“FL”), §5- 327(a). To aid in the enforcement of this provision, a petitioner in an independent adoption is required to file an accounting of all payments made in connection with the adoption. FL §5-327(c). Violation of the requirements of FL §5-327 is a misdemeanor punishable by imprisonment for up to three months and a fine of up to $100. FL §5-327(e).
This prohibition against the payment of compensation in connection with an adoption was originally enacted as part of a comprehensive revision of the adoption laws in the late 1940s. Chapter 599, Laws of Maryland 1947. The Report of the Commission to Study Revision of Adoption Laws of the State of Maryland (1946) states that the provision was intended “to prevent the barter of children, [by prohibiting] the taking of compensation by anyone for the placement of a child.”
Surrogacy contracts, as outlined above, did not exist at the time the predecessor of FL §5-327 was enacted in 1947. With the advent of medical technology that gave rise to surrogacy contracts, there was some question as to the applicability of FL §5-327 to such transactions. Of course, a broad general law does not apply solely to activities that were technologically possible at the time of its enactment. Kindley v. Governor, 289 Md. 620, 624-625, 426 A.2d 908 (1981). However, surrogacy agreements presented some unique issues.
A 1983 State study concluded that a surrogacy agreement that did not include adoption as part of the services compensated under the agreement would not violate FL §5-327, but could violate “the common law prohibition against baby selling.” Office for Children and Youth, Report of the Committee to Study Surrogate Mother Programs (February 1983) at pp. 5-8.3 A 1988 law review article
3 In fact, it is unlikely that there was a common law rule against baby-selling. Blackstone not only mentions no such crime, he notes that the Romans had the power of life or death over their children and that, while the power of English parents was less extensive, it was still substantial. 1 Blackstone, Commentaries 452. Pollock and Maitland note that in the seventh century even the church was compelled to allow that, in a case of necessity, an English father might sell into slavery a son who was not yet seven years old, though an older boy could not be sold without his consent. Pollock and Maitland, History of the English Law VII, § 3 (continued...)
111 352 [85 Op. Att’y suggested that FL §5-327 would likely invalidate most surrogacy agreements, since the statute was apparently designed to discourage contracts arranged by third-party intermediaries such as surrogate placement agencies. See Comment, Regulatory Options for Surrogate Arrangements in Maryland, 18 U.Balt.L.Rev. 110, 119-21 (1988). On the other hand, the article suggested, the statute might be inapplicable to surrogacy contracts because its overriding objective was to regulate arrangements between the mother of a child and strangers while a traditional surrogacy agreement is between parents and concerns support and custody of the child.4 Id.
In 1992, the Legislature added the prohibition on payments “in connection with an agreement for the custody of an individual in contemplation of adoption,” extended the statute of limitations from the general one-year period for misdemeanors to three years, and added the requirement for an accounting of payments made in connection with an independent adoption. Chapters 267, 446, Laws of Maryland 1992. Those amendments were designed to ensure that the statute applied to certain surrogacy agreements that might otherwise fall outside its purview, according to testimony by the sponsor of those bills and by the domestic relations master of the Howard County Circuit Court before the Legislature. Audio tape of Hearing before Senate Judicial Proceedings Committee on Senate Bills 622, 623 (March 5, 1992). For example, many surrogacy contracts involve the payment of consideration in return for an agreement on custody, presumably in anticipation of an adoption. Id.5
3 (...continued) (Cambridge University Press 1968). Moreover, the history of adoption laws in America reflects that limitations on payment were adopted only after years of outrage over abuses. Hollinger, Adoption Law and Practice, §§ 1.03, 1.04.
4 The Court of Appeals later held that the statute pertained to transactions between relatives of a child. See Part II.B.1. of this opinion.
5 Other amendments to the statute have been minor. For example, in 1970, the General Assembly exempted certain payments made to licensed adoption agencies or institutions. Chapter 648, Laws of Maryland 1970; see In re Adoption No. 9979, 323 Md. 39, 43-44, 591 A.2d 468 (1991).
112 Gen. 348] 353
2. Prohibition Against Child-Selling – Article 27, §35E
The State criminal code generally forbids child-selling:
A person may not sell, barter, or trade, or offer to sell, barter, or trade a child for money or property, either real or personal, or anything else of value.
Annotated Code of Maryland, Article 27, §35E(a). Violation of this provision is a misdemeanor, punishable by imprisonment for up to five years and a fine of up to $10,000. Article 27, §35E(b).
This provision was enacted in 1989 when two well-publicized cases raised a concern that some forms of baby-selling were not proscribed by FL §5-327.6 Chapter 300, Laws of Maryland 1989. The legislative history of Article 27, §35E reflects no explicit discussion of surrogacy agreements. See State v. Runkles, 326 Md. 384, 398-400, 605 A.2d 111 (1992) (summarizing legislative history of statute).
3. Failed Legislative Attempts to Permit or to Ban Surrogacy Contracts
During a ten-year period from the mid-1980s through the mid- 1990s, numerous bills explicitly addressing surrogacy contracts were introduced into the General Assembly. Several bills that would have expressly permitted and regulated surrogacy failed when they received unfavorable recommendations from the House Judiciary
6 In one case, a Pennsylvania couple ran an advertisement in a Baltimore area magazine offering their child for sale. Undercover Maryland State Police officers, working with Pennsylvania authorities, agreed to buy the baby for $30,000. Although the parents were prosecuted in Pennsylvania, the case raised concerns that FL §5-327 would not have supported a prosecution in Maryland. In the second case, a mother in Anne Arundel County allegedly sold her child for cocaine and cash. The circuit court held that the mother could not be prosecuted under FL §5-327 for the sale of the baby. That decision “apparently furnished additional impetus” for the enactment of §35E. See In re Adoption No. 9979, 323 Md. 39, 47-48, 591 A.2d 468 (1991).
113 354 [85 Op. Att’y
Committee.7 Similarly, numerous bills that would have explicitly prohibited surrogacy contracts also failed when they did not pass both houses of the Legislature.8
Finally, in 1992, the Legislature passed a bill that would have added a section to the Family Law Article that provided simply that “[a] surrogate parentage contract is void and unenforceable as against State policy.” Senate Bill 251 (1992). However, the Governor vetoed the bill. Laws of Maryland 1992 at pp. 4172-75. Two years later, the Legislature passed an identical bill9 – Senate Bill 171 (1994) – but the Governor again vetoed the bill. Laws of Maryland 1994 at pp. 3471-72.
In his 1992 veto message, then Governor Schaefer stated that his decision was based in part on advice from this Office that a Maryland court would likely hold that a surrogacy contract was unenforceable under existing law10 ; accordingly, the Governor
7 See House Bill 1595 (1984); House Bill 1552 (1985); House Bill 759 (1987); House Bill 649 (1988). In addition, a 1988 bill, which would have allowed the payment of some expenses of the natural mother of a child to be adopted, was amended to bar an agreement to pay such expenses if the agreement was made prior to the pregnancy. Senate Bill 436 (1988). That bill also failed.
8 See, e.g., Senate Bill 613 (1987)( “[a] person may not be a party to an agreement in which a woman agrees to conceive a child through artificial insemination and to voluntarily relinquish her parental rights”); Senate Bill 795 (1988) (same); House Bill 1479 (1988) (surrogacy agreements unenforceable and void as against public policy); Senate Bill 477 (1989)(same); House Bill 1340 (1989) (voiding agreements with provisions commonly found in surrogacy contracts). See also House Bill 1489 (1990); Senate Bill 228 (1990); Senate Bill 322 (1991); Senate Bill 639 (1992).
9 An identical bill submitted in 1993 had died in committee. Senate Bill 369 (1993). Since the 1994 veto, only one bill has been introduced that dealt expressly with surrogacy, and it failed. Senate Bill 39 (1995).
10 See Letter of Assistant Attorney General Kathryn M. Rowe to Delegate Barbara O. Kreamer (February 27, 1989) (concluding that surrogacy contracts were of doubtful validity in light of FL §5-327 and would be unenforceable if surrogate changed her mind because (continued...)
114 Gen. 348] 355 reasoned, it was unclear what effect the bill would have. In addition, in both veto messages, Governor Schaefer expressed his own opinion that a surrogacy contract was a personal matter that should be left to the individuals involved.
The Court of Appeals has often admonished that the failure of a bill in the Legislature is “a rather weak reed upon which to lean in ascertaining legislative intent.” See, e.g., Goldstein v. State, 339 Md. 563, 569-70, 664 A.2d 375 (1995). That maxim is particularly apt when the Legislature has rejected proposals both to permit surrogacy and to explicitly prohibit it, sometimes during the same session. Thus, despite repeated efforts by the Legislature to address surrogacy contracts, that activity sheds little light on the status of surrogacy contracts under the existing State law. At best, it can be said that on two occasions a majority of both houses of the Legislature declared such contracts void and unenforceable and that those bills were vetoed in part on the premise that surrogacy contracts were already unenforceable under existing Maryland law.
B. Maryland Case Law
1. Appellate Decisions Construing FL §5-327 and Article 27, §35E
No Maryland appellate decision applies FL §5-327 or Article 27, §35E, in the context of a surrogacy contract. However, in other contexts, the Court of Appeals has broadly construed the prohibitions against child-selling and compensation in connection with an adoption. Of particular relevance to surrogacy contracts, the Court has held that those statutes reach transactions between relatives of a child and agreements concerning custody as well as adoption.
In a case arising out of an adoption proceeding, the Court held that FL §5-327 barred payments made by the adopting parents directly to the birth mother to cover the cost of maternity clothes. In
10 (...continued) enforcement would conflict with statutes concerning the timing of the consent to adoption and the termination of parental rights); Letter of Assistant Attorney General Kathryn M. Rowe to Senator Norman R. Stone ( March 1, 1991) (concluding that passage of Article 27, §35E rendered the validity of surrogacy contracts even more questionable).
115 356 [85 Op. Att’y re Adoption No. 9979, 323 Md. 39, 591 A.2d 468 (1991).11 The Court also indicated that the circuit court could appropriately consider a violation of FL §5-327(a) in determining whether to grant the adoption, as illegal payments could bear on the voluntariness of the birth mother’s consent and on the fitness of the adopting parents. 323 Md. at 51. However, while noting that FL §5-327 is a penal statute that should ordinarily be enforced by criminal proceedings, the Court did not reach the issue of whether the statute would support ancillary civil relief in an adoption action.
In the context of a child support enforcement proceeding, the Court held that the child-selling statute and the adoption compensation ban evinced a State policy forbidding payments of compensation to a natural parent in exchange for that parent’s consent to an adoption. Stambaugh v. Child Support Enforcement Administration, 323 Md. 106, 591 A.2d 501 (1991). That case involved an agreement between a divorced couple under which the ex-husband consented to the adoption of the couple’s children by the wife’s new husband in exchange for the ex-wife’s waiver of child support that was in arrears. Citing both FL §5-327 and Article 27, §35E, the Court held that the agreement was void as contrary to public policy.
In a criminal prosecution under Article 27, § 35E, the Court held that the statute was not limited to payments connected with an adoption, but also included the relinquishment of the custody of a child in exchange for money. State v. Runkles, 326 Md. 384, 605 A.2d 111 (1992). In that case, the boyfriend of the mother of a child approached the child’s grandfather and offered, in return for $4,000, to persuade the mother to grant custody of the child to the grandfather.
11 The Court stated:
Describing a natural parent who signs a consent form and turns over a child for adoption as one who “renders any service in connection with the placement of a [child],” may not be the warmest possible prose, but it literally does include the natural parents. Indeed, it might be difficult to think of anyone capable of performing a greater “service in connection with the placement” than the natural parents.
323 Md. at 44.
116 Gen. 348] 357
These decisions make clear that FL §5-327 and Article 27, §35E apply to payments made directly to the natural parent of a child. Moreover, as both Stambaugh and Runkles illustrate, those statutes apply even if one of the persons receiving the child is a relative or a natural parent of the child. Finally, as Runkles indicates, the proscription against baby selling reaches agreements that contemplate only a change in the custody of the child. These decisions suggest that payments made as part of a surrogacy agreement violate the Maryland statutes prohibiting child-selling and the payment of compensation in connection with an adoption.
2. Circuit Court Decisions on Surrogacy Agreements
While the Maryland appellate courts have not construed the adoption compensation ban or the child-selling statute in the context of a surrogacy agreement, three written opinions in adoption proceedings in the circuit courts have analyzed that issue in some detail. Opinions in two cases in the Howard County Circuit Court concluded that surrogacy agreements involving payments of compensation are illegal under Maryland law. A decision of the Montgomery County Circuit Court also questioned the legality of surrogacy contracts, but concluded that a successful criminal prosecution was unlikely and declined to declare such contracts illegal. All three opinions concluded that the decision whether surrogacy contracts violate the public policy of the State is a matter for the Legislature. Finally, all three decisions also approved the adoption at issue. Thus, while those decisions took somewhat different paths, they reached similar results.
Howard County cases
In the two Howard County cases, the circuit court’s domestic relations master discussed the application of the baby selling statutes in memorandum opinions in support of recommendations in adoption proceedings that arose from surrogacy contracts. Ex Parte in the Matter of the Petition for the Adoption of a Minor Child, 90- AD-1602 (Circuit Court for Howard County (June 10, 1992) (Bernard Raum, Master); Ex Parte in the Matter of the Petition for the Adoption of a Minor Child, 91-AD-1681 (Circuit Court for Howard County, (June 19, 1992) (Bernard Raum, Master).
In each case, the master considered: (1) whether the petition for adoption should be dismissed based on violations of FL §5-327 and Article 27, § 35E, and (2) whether surrogate adoptions are
117 358 [85 Op. Att’y against the public policy of the State.12 Relying on Runkles, the master concluded that surrogacy contracts that involve payments related to an agreement on custody of a child violate §35E. In one of the cases, he noted that the final payment under the contract was to be made after the surrogate mother relinquished the baby to the father, and that the surrogate and her husband expressly agreed in the contract not to establish a parental relationship with the child.13
With respect to FL §5-327, the master concluded in both cases that it was “virtually impossible not to arrive at the conclusion that the entire enterprise was in contemplation of and in furtherance of an adoption.” The master particularly relied on testimony that reflected that the parties contemplated adoption when they entered into the agreements, and on contract provisions requiring the surrogate mother and her husband to take all steps necessary to terminate their parental rights to the child. Citing Stambaugh and In re Adoption 9979, the master concluded that the payments under the contracts violated FL §5-327.14
In each case, the master also addressed the question whether surrogate adoptions are against the public policy of the State. After briefly recounting some of the legislative attempts to address surrogacy contracts, the master concluded that the public policy on the general subject of surrogacy contracts was in a “state of turmoil,”
12 Each case also involved certain related issues. In one case, the petitioner contended that the adoption proceeding was a step-parent adoption. However, the master concluded that, given the statutory presumption that the child was the offspring of the birth mother and her husband, the proceeding could not properly be characterized as a step- parent adoption. In the other case, the petitioners challenged on constitutional grounds the application of FL §5-327 and Article 27, §35E to block a surrogate adoption. They also challenged on constitutional grounds the application of the statutory presumption of paternity in favor of the birth mother’s husband, when there is no similar presumption of maternity in favor of the wife of the man who furnished the sperm that resulted in the child. The master rejected those constitutional arguments.
13 In the other case, the master concluded that §35E did not apply, as the relevant events preceded the effective date of that statute.
14 In each case, the master stated in a footnote that the prohibition of FL §5-327 would “apply equally to out-of-state agreements which have as their intended consequences an adoption proceeding in Maryland.”
118 Gen. 348] 359 and was best left to the Legislature. Nonetheless, he reiterated that surrogacy contracts that contemplate adoption or a relinquishment of custody and that involve “component payments” are prohibited by FL §5-327 and Article 27, §35E, and are therefore unenforceable under Maryland law.
Finally, the master considered how these conclusions should affect the decision on the adoption petitions in the particular cases at hand. While reiterating that surrogacy agreements involving payments are unenforceable because they violate the child-selling statutes, the master noted that the two statutes provide only criminal penalties and do not specify any civil penalty or disability that would require dismissal of an adoption petition. Because each adoption proceeding concerned the status of a child and not enforcement of a contract, the master concluded that those proceedings were not the proper forum in which to address the statutory violations, except to the extent that the violations related to the best interests of the child. Finding in each case that the adoption was in the best interests of the child, he recommended that the adoptions be granted.
Montgomery County case
Like the Howard County cases, the Montgomery County case was an adoption proceeding that involved a child born as a result of a surrogacy agreement. Opinion in Ex Parte in the Matter of M.S.M. and G.M. for the Adoption of a Minor Infant, Adoption No. 11171 (Circuit Court for Montgomery County, August 20, 1993) (Peter J. Messitte, Circuit Judge) (“Circuit Court Opinion”). The circuit court noted that all parties agreed to the adoption and that the adoptive mother appeared to be a fit parent. However, the court construed the requirement of an accounting of adoption-related expenses under FL §5-327(c) to require it “to review the propriety of adoption-related expenses prior to the entry of a final decree” of adoption. Circuit Court Opinion at p. 1. Accordingly, the court addressed the legality of the payment of $15,000 to the surrogate mother under the contract.
The circuit court first acknowledged that a typical surrogacy contract would appear to violate FL §5-327 and Article 27, §35E, and would likely be unenforceable in a Maryland court. The court canvassed law review articles and case law from other states and listed arguments for and against application of similar statutes to
119 360 [85 Op. Att’y surrogacy contracts.15 The court noted that opinion was divided over whether statutes on baby-selling prohibit the payment of a fee to a surrogate mother, but concluded that the argument that a surrogate mother is paid for services “seems implausible,” and that “it is compelling to argue that this is payment for a child.” Circuit Court Opinion at p. 8. However, the court stated that “logic is one thing, experience another matter altogether,” and observed that, because these statutes contain only criminal remedies, a violation would be contingent upon proof beyond a reasonable doubt that a person acted with criminal intent. Thus, the circuit court concluded:
15 The circuit court summarized:
Among the arguments made in favor of the applicability of the statutes are that: (1) surrogacy agreements constitute baby-selling; (2) they dehumanize and exploit women, especially women of lower economic standing; (3) they focus exclusively on the parents’ desires instead of the child’s best interests. Opposed to this it is argued that: (1) surrogacy contracts are primarily for “services” and only incidentally for the delivery of a child; (2) the prohibitive legislation does not expressly foreclose the use of surrogate mothers or the paying of compensation to them; (3) surrogacy is different from adoption because the father is biologically related to the child; (4) surrogacy is like artificial insemination; (5) such contracts do not exploit women because they are entered into voluntarily before conception when the mother is not under pressure to give up the child; (6) any limitation on surrogacy agreements violates the constitutional right to privacy; (7) there are fewer children available for adoption than before; surrogacy may be the only way for some couples to have their own children.
Circuit Court Opinion at pp. 6-8 (citations omitted).
120 Gen. 348] 361
Given the history and current status of surrogacy parenting contracts both in and outside of Maryland, the Court is of the view that it would be virtually impossible for any criminal prosecution of parties to a surrogacy contract to succeed in this State under the referenced statutes. It is equally doubtful that a court in an adoption proceeding could fairly conclude that surrogacy parenting contracts otherwise violate Maryland’s public policy in the precise sense that case law defines the term. In short, as matters stand, the Court can only conclude that such contracts are not illegal in this state.
Id. at p. 9. After deciding that the surrogacy contract did not violate the statutes beyond a reasonable doubt, and that the public policy in Maryland was otherwise unclear, the circuit court entered a decree of adoption.
C. Surrogacy Contracts in Other States
A number of states have addressed surrogacy agreements explicitly in legislation. Some statutes declare surrogacy contracts illegal and unenforceable or criminalize the practice; in other states, legislation declares such contracts legal but unenforceable; in another variation, some statutes make the contracts unenforceable only if the surrogate is to be compensated or legalize those contracts that do not involve such compensation; in a few states, legislation permits and regulates the practice. See R.R. v. M.H. , 689 N.E.2d 790, 793-94 (Mass. 1998) (summarizing statutes in 18 states and District of Columbia); Comment, Legislating Surrogacy: A Partial Answer to Feminist Criticism, 54 Md.L.Rev. 488, 504-8 (1995).
Most pertinent to the status of surrogacy contracts under Maryland law are cases from other states that address the application to surrogacy contracts of statutes like FL §5-327 that bar payments in connection with adoption.16 See Annotation, 77 ALR 4th 70 (collecting cases). To the extent that a majority rule can be gleaned from these cases, most courts apparently hold that payments under surrogacy agreements are consideration for the provision of a baby
16 Few states apparently have child-selling prohibitions as broad as Article 27, §35E, that have been construed in this context.
121 362 [85 Op. Att’y for adoption and not simply for the services of the mother in bearing that child.17 Thus, many cases find that payments violate the law, or at least the public policy reflected in the law. A minority of cases finds significance in the usual timing of a surrogacy agreement – i.e., before the birth or even the conception of the child – and the absence of explicit provisions concerning adoption in an agreement. While these disparate holdings are attributable in some instances to differences in statutory law, 18 they also reflect the absence of a consensus about the desirability and appropriateness of surrogacy arrangements.
In any event, in cases involving a proposed adoption in which the parties are in agreement, the courts generally approve the adoption as in the best interests of the child, despite the violation. Only a few cases have found that a payment renders the birth mother’s consent invalid so that the adoption may not take place in the absence of a finding that the birth mother is unfit to be a parent.19
17 Some courts have held that adoption laws do not apply to “gestational” surrogacy agreements, as described in footnote 2 above. For example, the California Supreme Court held that “gestational surrogacy” differs in “crucial respects” from adoption and is not subject to the adoption statutes because “the surrogate in a gestational surrogacy arrangement is not the genetic mother of the child.” Johnson v. Calvert, 851 P.2d 776 (Cal.), cert. denied, 510 U.S. 874 (1993). See also In re Marriage of Buzzanca, 72 Cal.Rptr.2d 280, 289 (Cal.Ct.App. 1998); Belsito v. Clark, 644 N.E.2d 760, 766-67 (Ohio Ct.Com.Pl. 1994). In a case involving a “traditional” surrogacy contract, the California intermediate appellate court distinguished Johnson on the ground that the birth mother was genetically related to the child, and concluded that the state’s adoption laws applied. See In re Marriage of Moschetta, 30 Cal.Rptr. 893 (Cal.Ct.App. 1994).
18 For example, in some jurisdictions, statutes that forbid baby selling have an exception for payments between the parents of a child -- an exception that is pertinent in the context of a typical surrogacy contract, under which a male party to the contract will be the child’s biological parent. See Wash. AGO 1989 No. 4, 1989 WL 438954 (payment to surrogate mother is not barred by Washington statute that expressly exempts payments between the parents of the child).
19 See In the Matter of the Adoption of Paul, 550 N.Y.S.2d 815 (N.Y.Fam.Ct. 1990) (refusing to find birth mother’s surrender of child voluntary, unless she stated under oath that she “has not and will not (continued...)
122 Gen. 348] 363
In the earliest reported case, a Michigan couple that had entered into a surrogacy contract with the secretary of the husband challenged the constitutionality of Michigan statutes similar to FL §5-327 that prohibited compensation in connection with an adoption. The Michigan Court of Appeals assumed that those statutes would bar payments to the surrogate mother, and held that the application of the statutes to payments under a surrogacy contract did not violate a constitutional right of privacy. Doe v. Kelley, 307 N.W.2d 438 (Mich. App. 1981), cert. denied, 459 U.S. 1183 (1983). See also Doe v. Attorney General, 487 N.W.2d 484 (Mich. App. 1992) (upholding a later Michigan statute prohibiting surrogacy contracts for compensation).
In Surrogate Parenting Associates, Inc. v. Kentucky, 704 S.W.2d 209 (Ky. 1986), the Kentucky Attorney General sought to revoke the corporate charter of an agency that arranged surrogacy contracts. The Attorney General argued that surrogacy contracts arranged by the company violated Kentucky statutes that barred the sale of a child for purposes of adoption and that invalidated a mother’s consent to adoption prior to the birth of a child.20 However, the Kentucky Supreme Court held that fundamental differences between traditional surrogacy contracts and the practices
19 (...continued) request, accept, or receive the $10,000 promised to her in exchange for surrender of her child”); Anonymous v. Anonymous, 1991 WL 228555 (N.Y.Fam.Ct. 1991) (refusing to take jurisdiction of a filiation petition arising from a surrogacy contract on the ground that it would “contravene New York’s well-established policy forbidding the exchange of cash or other compensation in transactions involving the status of children”).
20 That action was initiated shortly after the Kentucky Attorney General issued an opinion that surrogacy contracts were illegal and unenforceable under Kentucky law. 1980-81 Ky. Op. Atty. Gen. 2-588 (Opinion No. 81-18), 1981 WL 142305. Similarly, most opinions of state Attorneys General on this subject have concluded that surrogacy arrangements involving a fee violate statutory bans on baby-selling or the payment of compensation in connection with an adoption. See, e.g., Kan. Atty. Gen. Op. No. 96-73 (1996), 1996 WL 563344 (concluding that payment to a surrogate mother is not payment for “services” permitted as an exception to statutory ban on consideration in connection with an adoption); 46 Or. Op. Atty. Gen. 221 (1989), 1989 WL 439814; La. Atty. Gen. Op. No. 83-869 (1983), 1983 WL 177217; 15 Okl. Op. Atty. Gen. 277 (Opinion No. 96-73, 1983), 1983 WL 174961.
123 364 [85 Op. Att’y that were the focus of the baby-selling laws took surrogacy contracts outside the scope of those laws.
Specifically, the Kentucky court found that the baby-selling laws were designed to prevent baby brokers from using financial incentives to induce an expectant mother, or the parents of a child, to part with the child. By contrast, it reasoned, surrogacy arrangements are made prior to the conception of the child; the prospective birth mother is thus not concerned about the results of an unwanted pregnancy or the financial burden of raising a child, but with assisting an infertile couple. See also Johnson v. Calvert, 851 P.2d 776 (Cal.), cert. denied, 510 U.S. 874 (1993) (because the agreement preceded conception, the surrogate “was not vulnerable to financial inducements to part with her own expected offspring”). However, the court also recognized that the birth mother’s agreement to consent to adoption, made prior to the birth of the child, was invalid under Kentucky law. Accordingly, the court held that the surrogacy contracts were voidable by the surrogate mother, but not void. See also Matter of Adoption of Baby Girl L.J., 505 N.Y.S.2d 813 (N.Y.Sur.Ct. 1986) (reaching similar conclusion under New York law).21
When a surrogate mother refuses to relinquish her parental rights and consent to an adoption or custody by the father, courts generally refuse to enforce the surrogacy agreement. In a highly publicized New Jersey case, the birth mother refused to carry out her contractual obligation to terminate her maternal rights or to surrender custody of the child. In the Matter of Baby M, 537 A.2d 1227 (N.J. 1988). In that case, the New Jersey Supreme Court concluded that, despite contract language that portrayed the surrogacy fee as compensation for “personal services” of the birth mother, the fee was, in reality, compensation for a private placement adoption. Accordingly, the contract violated a New Jersey law prohibiting payments in connection with adoption. The court also expressed doubt that the fact that the agreement preceded conception eliminated the possibility of the type of overreaching that laws against baby-selling were designed to prevent. Moreover, the court stated that the policy underlying baby-selling statutes went beyond the protection of expectant mothers and families from overreaching,
21 The holdings in both Surrogate Parenting Associates and Baby Girl L.J. were later effectively overruled by the Kentucky and New York legislatures, respectively. See R.R. v. M.H., 689 N.E.2d 790, 793-94 nn.4- 5 (1998).
124 Gen. 348] 365 noting that surrogacy contracts do not consider the best interests of the child or whether the purchasers are suitable parents. As a result, the court found that the agreement was void and refused to enforce it or to terminate the birth mother’s parental rights. Applying the “best interests of the child” standard, the court awarded custody to the father, but granted visitation rights to the birth mother.
In a recent case, the Massachusetts Supreme Judicial Court held that a traditional surrogacy agreement was not enforceable against a surrogate who had changed her mind. R.R. v. M.H. , 689 N.E.2d 790 (Mass. 1998). The court concluded that the policies underlying the adoption laws required that a surrogacy agreement be given no effect, if the birth mother consented to relinquish custody before the child’s birth or if her agreement was induced by the payment of money. Moreover, the court rejected the argument that the payments made to the birth mother were for services rather than for the child, where the contract provided that the surrogate would surrender custody to the father or forfeit all payments. Similarly, the court found little merit in distinctions based on the timing of the agreement:
Eliminating any financial reward to a surrogate mother is the only way to assure that no economic pressure will cause a woman, who may well be a member of an economically vulnerable class, to act as a surrogate. It is true that a surrogate enters into the agreement before she becomes pregnant and thus is not presented with the desperation that a poor unwed pregnant woman may confront. However, compensated surrogacy arrangements raise the concern that, under financial pressure, a woman will permit her body to be used and her child to be given away.
689 N.E.2d at 796. The court suggested that a surrogacy agreement might be enforceable if there were no payment of compensation to the birth mother and if she were not bound by her consent to the father’s custody of the child until a “suitable period” after the birth. Id. at 797. Nevertheless, the court cautioned that the parties could not by private agreement make a binding determination of the “best interests of the child” for purposes of custody.
125 366 [85 Op. Att’y
D. Summary
In FL §5-327, Maryland’s adoption law clearly prohibits not only the payment of compensation in connection with an adoption but also payments in contemplation of an adoption – a provision added to the statute with surrogacy agreements in mind. In Article 27, §35E, the State criminal law broadly forbids various forms of child-selling. Moreover, as construed by the Court of Appeals, §35E pertains to changes in custody as well as to adoptions, and both statutes reach agreements involving consideration passing between relatives of the child.
In our view, the argument that payments made under a surrogacy contract are not in connection with the adoption or custody of the child, but rather for the “services” of the birth mother, is unrealistic. This is especially so when the contract requires the birth mother not only to transfer custody, but to take all steps necessary to relinquish parental rights. The underlying purpose of a traditional surrogacy contract is not simply to engage the birth mother’s services to add another individual to the population of the world. Rather, the object is for the prospective parents to obtain custody and parental rights with respect to a child that may be genetically related to one or both of them.
Nor are surrogacy arrangements free of the concerns that inspired the laws against child-selling. As noted in R.H. and Baby M, the financial distress that would impel a woman to undertake a pregnancy with the intention of giving up the child is likely to be as severe as the straitened circumstances that would induce an expectant mother, or a family with a new baby, to sell a child. Moreover, as noted in Baby M, the effect of provisions in many surrogacy contracts is to determine custody of a child without reference to the fitness of the parents or the best interests of the child. Thus, in our opinion, payments with respect to traditional surrogacy contracts would violate both Maryland statutes in most circumstances, and such contracts are unenforceable under Maryland law.22
22 It is possible that the result would be different in a gestational surrogacy case. Some states have held that the product of a gestational surrogacy agreement is the natural child of the couple who arranged the surrogacy. See footnote 17, above. Thus, in at least some gestational surrogacy arrangements, the intended parents may be considered the (continued...)
126 Gen. 348] 367
The consequences of such a violation in an adoption proceeding are less straightforward. In Adoption No. 9979, the Court of Appeals noted that penal statutes like FL §5-327 and Article 27, §35E, are ordinarily enforced through criminal proceedings. While the Court did not rule out enforcement as part of an adoption proceeding, it did express significant caution about the idea ) caution that was adopted by the circuit court in Montgomery County and the master in Howard County. Moreover, while the General Assembly later amended FL §5-327, apparently in reaction to Adoption No. 9979, to require an accounting of payments as a part of the adoption process, it did not specifically authorize a court to deny an adoption petition based on such payments.23
The Court of Appeals has made clear that “the controlling factor in adoption and custody cases is ... what best serves the interest of the child.” In re Adoption/Guardianship No. 10941, 335 Md. 99, 113, 642 A.2d 201 (1994). Invalid payments may be a factor that bears on the voluntariness of consent of the birth mother to the adoption, or on the fitness of the adoptive parents, but the legislation does not make the invalidity of the payments conclusive on those issues. Thus, in our opinion, while a Maryland court appropriately may consider any such payments in deciding whether to approve an adoption, the ultimate criterion remains the best interests of the child.
III
Conclusion
In our opinion, surrogacy contracts that involve the payment of a fee to the birth mother are, in most instances, illegal and
22 (...continued) natural parents and adoption would be unnecessary. Moreover, since the natural parents have the presumed right to custody, FL §5-203, there would be a strong argument that payments under the agreement were not for the purchase of custody of the child. However, there is no law in Maryland addressing parentage in this context.
23 Merely requiring an accounting does not, in our view, require that a court enforce the law against payments by denying the adoption. See In the Matter of the Adoption of Baby A, 877 P.2d 107, 108 (Or.App. 1994).
127 368 [85 Op. Att’y unenforceable under Maryland law. However, the decision whether to grant an adoption petition turns on the best interests of the child. In the context of a “surrogate adoption,” a court may consider the payment of a surrogacy fee to the extent that it bears on that issue or on related issues such as the voluntariness of the birth mother’s consent to the adoption. The payment of a surrogacy fee does not by itself bar approval of an adoption petition.
J. Joseph Curran, Jr. Attorney General
Kathryn M. Rowe Assistant Attorney General
Robert N. McDonald Chief Counsel Opinions and Advice
Editor’s Note:
Article 27, §35E has been recodified as Criminal Law Article, §3-603. Chapter 273, Laws of Maryland 2002.
128
LEGAL RECOGNITION OF LGBT FAMILIES
I. Legal Parent
A legal parent is a person who is legally-recognized as a child’s parent and has the legal right to have custody of a child and make decisions about the child’s health, education, and well-being. A legal parent is also financially obligated to support the child.
In a number of states, a person who is not a legal parent does not have any legal decision- making authority over a child, even if that person lives with the child and functions as the child’s parent. For example, in some states, a person who is not a legal parent may not be able to consent to medical care for the child or even have the authority to approve things like school field trips. In addition, a non-legal parent may have no rights to custody or even visitation with a child should something happen to the legal parent, and may have no ability to claim the child as a dependent for health insurance. In the absence of a will stating otherwise, a child generally has no right to inherit from a person who is not a legal parent or relative.
All legal parents have an equal right to seek custody and make decisions for their children, as well as the responsibility to support their children. A biological parent does not have any more rights than an adoptive parent or other person who is a legal parent. For example, if a lesbian couple has a child together through donor insemination and completes a second parent adoption, both parents are on completely equal legal footing. If the couple were to separate, each would be equally entitled to custody, which a court would determine based on the best interests of the child without giving an automatic advantage to either parent.
When a legally married couple has a child, they are both automatically presumed to be the legal parents of the child. This means that, if they get divorced, they both remain legal parents unless a court terminates one or both of their parental rights. This presumption applies to same-sex parents when children are born to couples who are married or where their state recognizes their civil union or comprehensive domestic partnership at the time the child is born. Regardless of whether you are married or in a civil union or comprehensive domestic partnership, NCLR always encourages non-biological and non-adoptive parents to get an adoption or parentage judgment, even if you are named on your child’s birth certificate.
© 2016 NCLR 1 www.nclrights.org
This fact sheet is intended to provide accurate, general information regarding legal rights in the United States. Because laws and legal procedures are subject to frequent change and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency. 129 NCLR also always recommends that same-sex parents and transgender parents ensure that other family protection documents are in place, such as medical authorization, guardianship agreements, wills, advanced directives.
II. Second Parent Adoption
A. An Overview
The most common means by which LGBT non-biological parents establish a legal relationship with their children is through what is generally referred to as a “second parent adoption.” A second parent adoption is the legal procedure by which a co-parent adopts his or her partner’s child without terminating the partner’s parental rights, regardless of marital status. As a result of the adoption, the child has two legal parents, and both partners have equal legal status in terms of their relationship to the child.
Additionally, married same-sex couples can use the stepparent adoption procedures that other married couples may use. States that recognize comprehensive domestic partnerships or civil unions also allow couples joined in these legal unions to use the stepparent adoption procedures. These adoptions have the same effect as a second parent adoption, but they may be faster and less expensive than second parent adoptions, depending on where you live.
It is important to recognize, however, that a same-sex partner who plans the birth or adoption of a child with his or her partner is a parent – not a stepparent. Parents should not have to adopt their own children, but it is legally advisable for LGBT parents to get an adoption or parentage judgment to ensure that their parental rights are fully protected in every state.
B. Availability of Second Parent Adoption
As mentioned above, married same-sex couples can use the stepparent adoption procedures available to all married couples. Registered domestic partners or civil union partners can also use similar adoption procedures in states that recognize their relationship status.
In addition, for unmarried couples and couples who are not in a civil union or registered domestic partnership or similar status, a number of states allow them to get a second parent adoption. The following states have a state statute or appellate court decision allowing same- sex couples to get a second parent adoption or co-parent adoption: California1, Colorado2, Connecticut3, District of Columbia4, Idaho5, Illinois6, Indiana7, Maine8, Massachusetts9, New Jersey10, New York11, Oklahoma12, Pennsylvania13, Vermont14.
States that have allowed second parent adoptions by unmarried same-sex couples in some counties include Alaska, Delaware, Florida, Georgia, Hawaii, Iowa, Louisiana, Maryland, Minnesota, Oregon, Rhode Island, Texas, Washington, and West Virginia. There undoubtedly
© 2016 NCLR 2 www.nclrights.org
This fact sheet is intended to provide accurate, general information regarding legal rights in the United States. Because laws and legal procedures are subject to frequent change and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency. 130 are counties in other states that have granted second parent adoptions to unmarried same-sex couples.
Until recently, Florida was the only state to categorically prohibit lesbian, gay, and bisexual individuals from adopting, but that state law was held unconstitutional in September 2010.15 Arkansas previously prohibited anyone cohabiting with an unmarried partner from adopting or being a foster parent, but the Arkansas Supreme Court struck down this statute as unconstitutional.16
Appellate courts in Alabama,17 Kansas,18 Kentucky,19 North Carolina,20 Nebraska,21 Ohio,22 and Wisconsin23 have said that second parent adoptions are not permissible under the adoption statutes in those states either for same-sex or different-sex couples who are not married. However, married same-sex couples can use stepparent adoption procedures in those states.
Utah prohibits anyone cohabiting with an unmarried partner from adopting.24 Utah also gives a preference to married couples over any single adult in adoptions or foster care placement.25 Arizona gives a preference to married couples over a single adult in adoption placement.26 Mississippi has a statute that prohibits “[a]doption by couples of the same gender,” but under the Supreme Court ruling, Mississippi must allow same-sex spouses to adopt on equal terms with other married couples.27 Mississippi recently passed a law that may allow adoption service providers to refuse to place children with lesbian and gay single parents or couples if it would burden the exercise of their religion.28 There is currently a case pending challenging Nebraska’s policy that excludes lesbian and gay parents from being foster or adoptive placements for children in state care.29
C. Recognition of Second Parent Adoptions
Adoptions are court orders, which all states are required by the Full Faith and Credit Clause of the federal Constitution to recognize. For this reason, a final adoption by an LGBT parent should be recognized in every state, even if that state’s own laws would not have allowed the adoption to take place. Many courts have recognized that adoption decrees are entitled to full faith and credit. For instance, in a 2009 decision, a Florida Court of Appeal held that Florida must recognize a second parent adoption granted to the biological mother’s same-sex partner in Washington, and that the adoptive parent is entitled to all the rights and responsibilities of a legal parent under Florida law.30 Additionally, in 2002, the Nebraska Supreme Court said that Nebraska must recognize a second parent adoption granted in Pennsylvania, even though the adoption would not have been permitted in Nebraska.31 The federal Tenth Circuit Court of Appeals invalidated an Oklahoma law that refused to recognize adoptions where there were two parents of the same gender, holding that the Full Faith and Credit Clause of the U.S. Constitution required Oklahoma to treat all adoptions in an “even-handed manner.”32 The Fifth Circuit Court of Appeals, however, refused to allow same-sex parents to challenge Louisiana’s refusal to issue an amended birth certificate for a child adopted by a same-sex couple based on
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This fact sheet is intended to provide accurate, general information regarding legal rights in the United States. Because laws and legal procedures are subject to frequent change and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency. 131 procedural issues, but explained that all states must recognize valid adoptions from other states.33
Courts have also recognized that, as a general rule, an adoption that has become final cannot be challenged later by one of the parties to the adoption. For example, the Iowa Supreme Court held that a parent who had consented to a second parent adoption years earlier could not later change her mind and seek to challenge the legality of the adoption.34 Courts in a number of states, including appellate courts in Florida, Indiana, Kentucky, Minnesota, Texas, and Wisconsin have issued similar decisions.35 The Texas court found that, in order to give children and adoptive parents finality and stability, Texas statutes prevented an adoption from being attacked for any reason more than six months after it was issued. In one case, the court noted: “The destruction of a parent-child relationship is a traumatic experience that can lead to emotional devastation for all the parties involved, and all reasonable efforts to prevent this outcome must be invoked when there is no indication that the destruction of the existing parent- child relationship is in the best interest of the child.”36 Only one of the many states that has considered this issue, North Carolina, has invalidated a final adoption.37
III. Parentage Judgment
Adoption is currently the most common means used by LGBT non-biological parents to establish a legal parental relationship with their child. In many states, non-biological and non- adoptive parents who are recognized by their state law as legal parents also have the option of obtaining a parentage judgment. This is sometimes called a “parentage action,” “maternity action,” “paternity action,” or action under the state’s Uniform Parentage Act, known as a “UPA action.” It is extremely important for non-biological parents to get a parentage judgment or adoption as soon as possible to ensure that their parental rights will be fully respected in any state if you move or travel. Having your name on the birth certificate does not guarantee protections if your legal rights are challenged in court – only an adoption or parentage judgment can ensure that parental rights will be respected.
A number of states recognize that a non-biological and non-adoptive parent can be a legal parent in some circumstances, even if they are not married to the birth parent. California, New Mexico, Colorado, Kansas, and New Hampshire have appellate decisions recognizing that a woman who has lived with a child and held herself out as a parent can establish her legal parentage under their parentage codes.38 Delaware recognizes a person who is a de facto parent as a legal parent under their parentage statutes.39 In some states, where a female same-sex couple plans together to conceive and raise a child using a medical procedure to become pregnant, or where a male same-sex couple uses a surrogate to conceive and bear a child, the intended parents can petition the court to declare the non-biological parent to be a legal parent to the child.40 Appellate courts in Illinois, and a trial court in New Jersey, have held that a woman who consents to her partner’s insemination can be a legal parent, even if she is not married to the birth mother,41 and a few other states have statutes that explicitly provide that
© 2016 NCLR 4 www.nclrights.org
This fact sheet is intended to provide accurate, general information regarding legal rights in the United States. Because laws and legal procedures are subject to frequent change and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency. 132 either a man or a woman who consents to another woman’s insemination is a legal parent, regardless of marital status, including New Mexico, Nevada Washington, and the District of Columbia.42
Some states, including Indiana,43 Maine,44 Nebraska,45 Pennsylvania,46 and Washington,47 have case law recognizing that a non-biological and non-adoptive parent can have all of the rights and responsibilities of parentage based on the following factors: her acceptance of the responsibilities of parentage, living with the child, the legal parent’s fostering a parent-child relationship between the child and the non-biological and non-adoptive parent, and the existence of a bonded parent-child relationship.
Parentage judgments can also be obtained when a child is born to a couple who are married, or are in a state that recognizes their civil union or comprehensive domestic partnership. Transgender parents who are not biological parents can also obtain parentage judgments for children born to them and their spouse or partner if they are legally married or in a civil union or comprehensive domestic partnership.
For information about relationship recognition in your state, see NCLR’s publication Marriage, Domestic Partnerships, and Civil Unions: An Overview of Relationship Recognition for Same- Sex Couples in the United States, available at www.nclrights.org.
IV. Custody/Visitation
Any legal parent has an equal right to seek custody or visitation, regardless of whether they are a biological parent, adoptive parent, or other legal parent. Between legal parents, there is no preference for biological parents in custody cases.
In addition to the states listed in the previous section that allow non-biological and non-adoptive parents to be recognized as legal parents, many states recognize that, where a same-sex partner participated in the caretaking of the child and maintained a parent-like relationship with the child, he or she has standing (meaning the right to go to court) to ask a court for visitation or custody. Such states have recognized this right to seek visitation or custody under an “equitable parent,” “parent by estoppel,” “de facto parent,” “psychological parent,” or “in loco parentis” theory. State courts that have recognized that a non-biological and non-adoptive parent may seek visitation or custody even if they are not a legal parent include: Alaska,48 Arkansas,49 Arizona,50 Colorado,51 Indiana,52 Kentucky,53 Maine,54 Massachusetts,55 Minnesota,56 Mississippi,57 Montana,58 Nebraska,59 New Jersey,60 New Mexico,61 North Carolina,62 North Dakota,63 Ohio,64 Oklahoma,65 Pennsylvania,66 Rhode Island,67 South Carolina,68 Washington,69 West Virginia,70 and Wisconsin.71 Only a small number of states have said that a non-legal parent has no ability to seek custody or visitation with the child of his or her former partner, even when he or she has been an equally contributing caretaker of the child.72
© 2016 NCLR 5 www.nclrights.org
This fact sheet is intended to provide accurate, general information regarding legal rights in the United States. Because laws and legal procedures are subject to frequent change and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency. 133 Many states have enacted statutes giving de facto parents or persons who have assumed a true parental role in a child’s life a right to seek visitation or custody, including Arizona, Colorado, Connecticut, Delaware, Indiana, Kentucky, Maine, Minnesota, Montana, Nevada, Oregon, South Carolina, Texas, and the District of Columbia.73 For example, the District of Columbia defines de facto parents as someone who has taken on the full responsibilities of a parent, held himself or herself out as the child’s parent with the permission of the other parent or parents, and either (1) lived with the child since birth or adoption or (2) lived with the child for 10 months out of the last year and formed a “strong emotional bond” with the child with the encouragement of the other parent.74
V. Parenting Agreement
Same-sex couples who were not married when their children were born and who live in a state that does not yet permit second parent adoptions or parentage actions may want to draft a parenting agreement. This agreement will not make you a parent, but a number of courts have recognized that parenting agreements permitting another person to have custody or visitation with a child may enforceable in court.75 These courts have acknowledged the importance of protecting parent-child bonds that have formed with the agreement of the child’s legal parent.
A parenting agreement should specify that, although only one of the parents may be recognized as a legal parent, both parents consider themselves to be the parents of their child, with all of the legal rights and responsibilities that come with being a parent. It should explain that the legal parent waives her exclusive right to custody and control of the child and intends to co- parent equally with the other parent. The agreement should include language that clearly states the couple's intention to continue to co-parent even if their relationship is dissolved.
Last updated: September 2016
Endnotes
1 Sharon S. v. Superior Court, 73 P.3d 554 (Cal. 2003).
2 COLO. REV. STAT. ANN. §§ 19-5-203(1), 19-5-208(5), 19-5-210(1.5), 19-5-211(1.5).
3 CONN. GEN. STAT. ANN. § 45a-724(a)(3) (providing that “any parent of a minor child may agree in writing with one other person who shares parental responsibility for the child with such parent that the other person shall adopt or join in the adoption of the child”).
4 M.M.D. v. B.H.M, 662 A.2d 837 (D.C. 1995).
5 In re Adoption of Doe, No. 41463, 2014 WL 527144 (Idaho Feb. 10, 2014).
6 In re Petition of K.M. & D.M., 653 N.E.2d 888 (Ill. App. Ct. 1995).
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This fact sheet is intended to provide accurate, general information regarding legal rights in the United States. Because laws and legal procedures are subject to frequent change and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency. 134 7 In re Adoption of M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003); In re Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004). See also In re Infant Girl W. 785 N.E.2d 267 (Ind. App. 2006) (same-sex couple may jointly adopt).
8 Adoption of M.A., 2007 ME 123 (Me. 2007).
9 In re Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993).
10 In re the Adoption of Two Children by H.N.R., 666 A.2d 535 (N.J. Super. Ct. App. Div. 1995).
11 In re Jacob, In re Dana, 660 N.E.2d 397 (N.Y. 1995).
12 Eldredge v. Taylor, 2014 OK 92 (2014).
13 In re Adoption of R.B.F. & R.C.F., 803 A.2d 1195 (Pa. 2002).
14 In re Adoption of B.L.V.B. & E.L.V.B., 628 A.2d 1271 (Vt. 1993); VT. STAT. ANN. tit. 15A, § 1-102(b) (providing that, if family unit consists of parent and parent’s partner, partner of parent may adopt child without terminating parent's rights)).
15 Fla. Dep’t of Children & Families v. X.X.G., 45 So.3d 79 (Fla. Ct. App. 2010) (Florida’s Third District Court of Appeal held that the ban had no rational basis and violated the equal protection guarantee of the Florida Constitution). This decision is binding on all Florida trial courts. The Florida Department of Children and Families has issued a memorandum instructing its staff to immediately cease questioning prospective adoptive parents about their sexual orientation and not consider sexual orientation as a factor in determining fitness to adopt. The Department’s staff are to focus instead on the quality of parenting that adoptive parents would provide, and their commitment to love an adopted child.
16 Arkansas Dept. of Human Services v. Cole, 2011 Ark. 145 (Ark. April 7, 2011) (striking Arkansas Initiative Act 1 (2008) as violating the Arkansas Constitution).
17 In re Adoption of K.R.S., 109 So.3d 176 (Ala. Ct. App. 2012) (refusing to allow a same-sex couple who had married in another state to use the stepparent adoption procedures). Previously, some attorneys had obtained second-parent adoptions in some counties.
18 Adoption of I.M., 48 Kan.App.2d 343 (Kan. Ct. App. 2012).
19 S.J.L.S. v. T.L.S., 265 S.W.3d 804 (Ct. App. Ky. 2008) (holding that the biological mother could not challenge her partner’s adoption of the child more than a year after the adoption was finalized, but noting in dicta that an unmarried couple cannot use the stepparent adoption procedures in Kentucky to establish legal parentage for both partners).
20 Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010).
21 In re Adoption of Luke, 640 N.W.2d 374 (Neb. 2002).
22 In re Adoption of Doe, 719 N.E.2d 1071 (Ohio Ct. App. 1998).
23 In the Interest of Angel Lace M., 516 N.W.2d 678 (Wis. 1994).
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This fact sheet is intended to provide accurate, general information regarding legal rights in the United States. Because laws and legal procedures are subject to frequent change and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency. 135 24 UTAH CODE ANN. § 78B-6-117(3).
25 UTAH CODE §§ 78A-6-307(19), 78B-6-117 (4).
26 Ariz. Rev. Stat. § 8-103.
27 MISS. CODE ANN. § 93-17-3(5).
28 See Mississippi Religious Freedom Restoration Act, Miss. S.B. 2681, 2014 Reg. Sess., effective July 1, 2014.
29 Stewart and Stewart v. Heineman, ACLU Case Summary, available at https://www.aclu.org/lgbt- rights/stewart-and-stewart-v-heineman.
30 Embry v. Ryan, 11 So.3d 408 (Fla. Ct. App. 2009).
31 Russell v. Bridgens, 647 N.W.2d 56 (Neb. 2002).
32 Finstuen v. Crutcher, 496 F.3d 1139 (10th Cir. 2007) (invalidating as unconstitutional 10 OKLA. STAT. § 7502-1.4, which stated: “this state, any of its agencies, or any court of this state shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction”).
33 Adar v. Smith, 639 F.3d 146 (5th Cir. 2011) (en banc) (holding that Louisiana’s policy of refusing to amend birth certificates of children adopted by unmarried couples, could not be challenged in federal court and opining in dicta that Louisiana’s practice did not violate full faith and credit).
34 Schott v. Schott, 744 N.W.2d 85 (Iowa 2008).
35 In re Adoption of D.P.P., No. 5D13-1766, 2014 WL 2109130 (Fla. Dist. Ct. App. May 21, 2014); In re Christian J.W., 803 N.W.2d 869, 337 Wis.2d 91 (Wis. Ct. App. 2011) (unpublished decision); In re Adoption of T.A.M. and E.J.M., 791 N.W.2d 573 (Minn. App. 2010); S.J.L.S. v. T.L.S., 265 S.W.3d 804 (Ct. App. Ky. 2008); Mariga v. Flint, 822 N.E.2d 620 (Ind. Ct. App. 2005); Goodson v. Castellanos, 214 S.W.3d 741 (Tex. App. 2007), reh’g overruled (Mar 01, 2007), rev. denied (Feb 22, 2008); Hobbs v. Van Stavern, 2006 WL 3095439 (Tex. App. 2006), rev. denied (Feb 22, 2008).
36 Goodson, 214 S.W.3d at 749.
37 Boseman v. Jarrell, 704 S.E.2d 494 (N.C. 2010) (holding that a final second parent adoption by the same-sex partner of the biological mother was void).
38 Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005) (holding that the same-sex partner of a biological parent can be a presumed parent under California Family Code § 7611(d) where she receives the child into her home and holds the child out as her own); In re S.N.V., 2011 WL 6425562 (Colo. App. 2011); Chatterjee v. King, 280 P.3d 283 (N.M. 2012); Frazier v. Goudschaal, 296 Kan. 730 (2013); In re Guardianship of Madelyn B., No. 2013-593, 2014 WL 2958752 (N.H. July 2, 2014). Other states have also recognized that paternity statutes apply equally to women. See Rubano v. DiCenzo, 759 A.2d 959 (R.I. 2000); In re Roberto d.B., 923 A.2d 115 (Md. 2007).
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This fact sheet is intended to provide accurate, general information regarding legal rights in the United States. Because laws and legal procedures are subject to frequent change and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency. 136 39 DEL. CODE ANN. tit. 13, § 8-201, 2302 (providing that a legal parent includes a “de facto parent” who has a “parent-like relationship” established with the support and consent of the legal parent, has “exercised parental responsibilities,” and has “acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature”). Smith v. Guest, No. 252, 2010, 2011 WL 899550 (Del. Mar 14, 2011) (upholding de facto parent statutes and holding that the legislature expressly intended the statutes to apply retroactively).
40 See, e.g., St. Mary v. Damon, 309 P.3d 1027, 1029 (Nev. 2013); D.M.T. v. T.M.H., 129 So.3d 320 (Fla. 2013), rehearing denied; K.M. v. E.G., 117 P.3d 673 (Cal. 2005); Raftopol v. Ramey, 12 A.3d 783 (Conn. 2011).
41 In re T.P.S., 978 N.E.2d 1070 (Ill. Ct. App. 2012). See also, In re Parentage of Robinson, 383 N.J. Super. 165 (N.J. Ch. Div. 2005) (woman who consented to her same-sex partner’s insemination is presumed to be a parent).
42 Nev. Rev. Stat. 126.670 and 126.680; N.M. Stat. Ann. § 40-11A-703; Was. Rev. Code Ann. § 26.26.710; D.C. Code § 16-909(e)(1).
43 King v. S.B., 837 N.E.2d 965, 967 (Ind. 2005). But see A.C. v. N.J., 1 N.E.3d 685 (Ind. Ct. App. 2013)
44 C.E.W. v. D.E.W., 845 A.2d 1146, 1151 (Me. 2004) (once an individual is found to be a de facto parent, a court may award “parental rights and responsibilities to that individual as a parent”). See also Pitts v. Moore, 2014 ME 59, No. Yor–12–440 (Me. April 17, 2014), decision not yet released for publication.
45 Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (Neb. 2011); Russell v. Bridgens, 647 N.W.2d 56 (Neb. 2002).
46 L.S.K. v. H.A.N., 813 A.2d 872, 876 (Pa. Super. Ct. 2002) (“The rights and liabilities arising out of [in loco parentis status] are the same as between parent and child.”).
47 In re Parentage of L.B., 122 P.3d 161, 708 (Wash. 2005) (“a de facto parent stands in legal parity with an otherwise legal parent”).
48 Kinnard v. Kinnard, 43 P.3d 150 (Alaska 2002).
49 Bethany v. Jones, No. 10-295, 2011 Ark. 67, 2011 WL 553923 (Ark., Feb 17, 2011).
50 Thomas v. Thomas, 203 Ariz. 34, 49 P.3d 306 (Ariz. App. Div. 1,2002).
51 In the Interest of E.L.M.C., 100 P.3d 546 (Colo. Ct. App. 2004), cert. denied, 2004 WL 2377164 (Colo. 2004), cert. denied sub nom, Clark v. McLeod, 545 U.S. 1111 (2005).
52 King v. S.B., 837 N.E.2d 965 (Ind. 2005).
53 Pickelsimmer v. Mullins, 317 S.W.3d 569 (Ky. 2010).
54 C.E.W. v. D.E.W., 845 A.2d 1146 (Me. 2004).
55 E.N.O. v. L.M.M., 711 N.E.2d 886 (Mass. 1999).
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This fact sheet is intended to provide accurate, general information regarding legal rights in the United States. Because laws and legal procedures are subject to frequent change and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency. 137
56 Soohoo v. Johnson, 731 N.W.2d 815 (Minn. 2007).
57 Logan v. Logan, 730 So. 2d 1124 (Miss. 1998).
58 Kulstad v. Maniaci, 352 Mont. 513 (Mt. 2009).
59 Latham v. Schwerdtfeger, 282 Neb. 121, 802 N.W.2d 66 (Neb. 2011); Russell v. Bridgens, 647 N.W.2d 56 (Neb. 2002).
60V.C. v. J.M.B., 748 A.2d 539 (N.J. 2000).
61 A.C. v. C.B., 829 P.2d 660 (N.M. Ct. App. 1992).
62 Mason v. Dwinnell, 660 S.E.2d 58 (N.C. Ct. App. 2008) (district court properly awarded joint custody to same-sex co-parents because the legal mother “acted in a manner inconsistent with her constitutionally- protected paramount interest”). But see Estroff v. Chatterjee, 660 S.E.2d 73 (N.C. Ct. App. 2008) (trial court properly denied lesbian non-legal mother custody because the facts did not support a finding that the legal mother “acted in a manner inconsistent with . . . her constitutionally-protected status as a parent”).
63 McAllister v. McAllister, 779 N.W.2d 652, 658 (N.D. 2010).
64 In re Bonfield, 97 Ohio St. 3d 387, 780 N.E.2d 241 (2002); In re Mullen, 129 Ohio St. 3d 417, 953 N.E.2d 302 (2011).
65 Eldredge v. Taylor, 339 P.3d 888 (Okla. 2014).
66 T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001); J.A.L. v. E.P.H., 682 A.2d 1314 (Pa. Super. Ct. 1996); L.S.K. v. H.A.N., 813 A.2d 872 (Pa. Super. Ct. 2002).
67 Rubano v. DiCenzo, 759 A.2d 959 (R.I. 2000).
68 Marquez v. Caudill, 376 S.C. 229, 656 S.E.2d 737 (2008).
69 In re Parentage of L.B., 122 P.3d 161 (Wash. 2005).
70 In re Clifford K., 619 S.E.2d 138 (W. Va. 2005).
71 In re the Custody of H.S.H.-K.: Holtzman v. Knott, 533 N.W.2d 419 (Wis. 1995), cert. denied, 516 U.S. 975 (1995).
72 See, e.g., Jones v. Barlow, 154 P.3d 808 (Utah 2007); White v. White, 293 S.W.3d 1 (Mo. 2009).
73 See, e.g., ARIZ. REV. STAT. ANN. §§ 25-402, 25-409 (a person who stands in loco parentis to a child to seek custody or visitation under certain circumstances); COLO. REV. STAT. ANN. § 14-10-123(1)(c) (establishing standing to seek custody or visitation “[b]y a person other than a parent who has had the physical care of a child for a period of six months or more, if such action is commenced within six months of the termination of such physical care”); CONN. GEN. STAT. ANN. §§46b-56 & 46b-59 (providing that, in a dissolution proceeding, a court may grant reasonable visitation or custody to a person who is not a
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This fact sheet is intended to provide accurate, general information regarding legal rights in the United States. Because laws and legal procedures are subject to frequent change and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency. 138 parent); DEL. CODE ANN. tit. 13, § 8-201, 2302 (providing that a legal parent includes a “de facto parent” who has a “parent-like relationship” established with the support and consent of the legal parent, has “exercised parental responsibilities,” and has “acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature”); D.C. CODE §16-831.01 et seq. (providing that a “de facto parent” has standing to seek custody or visitation); IND. CODE ANN. § 31-9-2-35.5 (establishing standing to seek custody or visitation by a “de facto custodian” who “has been the primary caregiver for, and financial support of, a child” for specified periods depending on age of child); KY. REV. STAT. ANN. 403.270(1) (establishing standing to seek custody or visitation by a “de facto custodian” who “has been the primary caregiver for, and financial support of, a child” for specified periods depending on age of child); ME. REV. STAT.ANN. tit. 19-A, § 1653(2) (court may grant reasonable visitation to a third party); MINN. STAT.ANN. § 257C.01 et seq. (permitting “de facto custodian” or “interested third party” as defined by statute to seek custody or visitation under specified circumstances); MT. CODE ANN. §§ 40-4-211(4)(b), 40-4-228 (a non-legal parent can seek custody or visitation if it is established by clear and convincing evidence that he or she has a “child-parent” relationship and the legal parent has “engaged in conduct contrary to the child-parent relationship”); NEV. REV. STAT. § 125C.050 (a person who has lived with the child and established a “meaningful relationship” may seek reasonable visitation if a parent has unreasonably restricted visits); OR. REV. STAT.ANN. § 109.119 (establishing standing to seek custody or visitation by a person who, within the previous six months, had physical custody of the child or lived with the child and provided parental care for the child); S.C. CODE ANN. § 63-15-60 (establishing standing to seek custody or visitation to a “de facto custodian” who has been a child’s primary caregiver and financial supporter for a specified period of time based on the child’s age); TEX. FAM. CODE ANN. § 102.003 (9) (establishing standing to seek custody or visitation by “a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition”).
74 D.C. CODE § 16-831.01 states: (1) “De facto parent” means an individual: (A) Who: (i) Lived with the child in the same household at the time of the child’s birth or adoption by the child's parent; (ii) Has taken on full and permanent responsibilities as the child’s parent; and (iii) Has held himself or herself out as the child's parent with the agreement of the child's parent or, if there are 2 parents, both parents; or (B) Who: (i) Has lived with the child in the same household for at least 10 of the 12 months immediately preceding the filing of the complaint or motion for custody; (ii) Has formed a strong emotional bond with the child with the encouragement and intent of the child's parent that a parent-child relationship form between the child and the third party; (iii) Has taken on full and permanent responsibilities as the child’s parent; and (iv) Has held himself or herself out as the child's parent with the agreement of the child’s parent, or if there are 2 parents, both parents.
75 See, e.g., Eldredge v. Taylor, 339 P.3d 888 (Okla. 2014); Frazier v. Goudschaal, 296 Kan. 730 (2013); In re Bonfield, 97 Ohio St. 3d 387, 780 N.E.2d 241 (2002); Rubano v. DiCenzo, 759 A.2d 959 (R. I. 2000)
© 2016 NCLR 11 www.nclrights.org
This fact sheet is intended to provide accurate, general information regarding legal rights in the United States. Because laws and legal procedures are subject to frequent change and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency. 139 (holding that the former same-sex partner of a child’s biological mother was entitled to seek a remedy for the biological mother’s alleged violation of the parties’ visitation agreement); In re the Custody of H.S.H.- K.: Holtzman v. Knott, 533 N.W.2d 419 (Wis. 1995) (holding that courts may “grant visitation apart from [custody and visitation statutes] on the basis of a co-parenting agreement between a biological parent and another when visitation is in a child’s best interest”); A.C. v. C.B., 829 P.2d 660 (N.M. Ct. App. 1992), writ of certiorari denied C.B. v. A. C., 827 P.2d 837 (N.M. 1992) (holding that the former same-sex partner of a child’s biological mother could seek enforcement of an agreement for shared custody or visitation and the agreement was enforceable, subject to the court’s best interest determination); Morgan v. Kifus, 2011 WL 1362691 (Va. Ct. App. 2011) [unpublished].
© 2016 NCLR 12 www.nclrights.org
This fact sheet is intended to provide accurate, general information regarding legal rights in the United States. Because laws and legal procedures are subject to frequent change and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this fact sheet is current nor be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency. 140 Page 1 In re: Roberto d. B No. 110, September Term 2002. Court of Appeals of Maryland. Filed: May 16, 2007.
Bell, C. J. *Eldridge, Raker, *Wilner, in Maryland. The case sub judice presents a Cathell, Harrell, Battaglia, JJ. novel question of law, one of first impression in this Court: must the name of a genetically Page 2 unrelated gestational host of a fetus, with whom the appellant contracted to carry in vitro Opinion by Bell, C.J. Page 3 This case compels the Court to consider the ever-continuing development of artificial fertilized embryos to term, be listed as the reproductive technologies. In the last two mother on the birth certificate, when, as a result, decades, methods of producing a child have children are born? The Circuit Court for advanced beyond the traditional realm. In a Montgomery County held that it must. We shall traditional surrogacy context, the egg donor, reverse . who is also the carrier of the child, or the "gestational carrier," is artificially inseminated A. with the sperm of the intended father, carries the child to term, and then relinquishes parental Because of the unusual procedural posture rights after birth, with the father acknowledging of this case, the facts are not disputed. The paternity and taking custody of the child; his appellant, Roberto d.B., an unmarried male, spouse typically adopts the child. In re Marriage initiated, on December 18, 2000, a medical of Moschetta, 30 Cal. Rptr. 2d 893, 894 (Cal. Ct. procedure known as in vitro fertilization, with App. 1994). In a gestational surrogacy context, his sperm being used to fertilize eggs from an the donated egg begins outside of the gestational egg donor. The procedure resulted in two carrier, who is impregnated with a fertilized fertilized eggs. embryo, often as a result of in vitro fertilization of the egg of the intend ed mother with the The putative appellee in this case is the sperm of the intended father. See, e.g., Belsito v. woman with whom the appellant contracted to Clark, 644 N.E.2d 760 (Ohio Ct. Com . Pl. act as a carrier for any embryo that might be 1994); Johnson v. Calvert, 851 P.2d 776, 778 created as a result of his fertilization efforts so (Cal. 1993), cert. denied, 510 U.S. 874, 114 S. that they might gestate in a womb. Fertilized Ct. 206, 126 L. Ed. 2d 163 (1993); Soos v. eggs were implanted in the appellee on Superior Court, 897 P.2d 1356 (Ariz. Ct. App. December 21, 2000, and she delivered twin 1994). The gestational surrogacy context can children on August 23, 2001, at Holy Cross involve anonymous sperm and egg donors, with Hospital in Silver Spring, Maryland. the result that the child has no genetic relation to the gestational carrier or the intended paren ts. In The medical records department of a re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 hospital in Maryland is required to submit (Cal. Ct. App. 1998); Jaycee B. v. Superior information regarding births to the Maryland Court, 49 Cal. Rptr. 2d 694, 695 (Cal. Ct. App. Division of Vital Records1 ("MDVR"), a part of 1996). the Maryland Vital Statistics Administration. Maryland Code (1982, 2005 Repl. Vol., The law is being tested as these new techniques become more commonplace and Page 4 accepted; this case represents the first challenge
141 2006 Supp.) § 4-208 (a) (4 ) (iii) of the Health- granted certiorari. In re: Roberto d.B., 372 Md. General Article ("HG").2 The MDVR, having 684, 814 A.2d 570 (2003).
Page 5 B. received this information, issues the birth The appellant is the genetic father of the certificates. Unless a court order otherwise twin children, having provided his sperm to provides, the hospital will report the gestational fertilize donated eggs. The egg donor, not a carrier as the "mother" of the child to the party in this case, is the genetic provider of the MDVR. HG § 4-208. Holy Cross Hospital egg. The appellee is the gestational carrier of the followed this procedure. fertilized eggs that developed in her womb, despite contributing no genetic material to the Neither the appellee nor the appellant, fertilization process. however, wanted the gestational carrier's name to be listed on the birth certificate as the The Circuit Court's oral ruling is sparse, but "mother" of the children. It is the appellant's and outlines two primary reasons why the name of the appellee's contention that the appellee was the gestational carrier should not be removed merely acting as a gestational carrier for children from the children's birth certificate. It first notes that were never intended, by either party, to be that no Maryland case law exists that would give hers, and to whom she has no genetic a trial court the power to remove the mother's relationship. The appellee does not wish to name from a birth certificate. Second, it notes exercise pa rental rights to, or over, these two that removing the name children, nor does the appellant desire that she do so. The appellee contends that, under her Page 7 agreement, she had a reasonable expectation that her role in the lives of these children would of the surrogate from the birth certificate is terminate upon delivery of the children, and that inconsistent with the "best interests of the child" the faithful performance of her duties under the standard ("BIC"), citing, generally, "health agreement would not permanently imp act her reasons."4 life, nor the lives of her family. 1. Thus, the appellee joined the appellant's petition to the Circuit Court for Montgomery The appellant's primary contention is that County, asking it to issue an "accurate" birth the parentage statutes in Maryland, as enforced certificate, i.e., one that did not list the by the trial court below, do not "afford equal protection of the law to men and women Page 6 similarly situated." Maryland's Equal Rights Amendment (E.R.A.), Article 46 of the gestational carrier as the children's mother. In Maryland Declaration of Rights, specifies that the petition, they asked the court to declare that "[e]quality of rights under the law shall not be the appellant was the father of the children, and abridged or denied because of sex." The authorize the hospital to report only the name of appellant contends that because Maryland's the father to the MDVR. Page 8 Despite the contentions of the appellant and appellee, the Circuit Court for Montgomery parentage statutes allow a man to deny paternity, County refused to remove the appellee's name and do not, currently, allow a woman to deny from the birth certificate and rejected the maternity, these statutes, unless interpreted petition.3 The appellant noted an appeal to the differently, are subject to an E.R.A. challenge. Court of Special Appeals. On our own motion and prior to proceedings in that court, this Court
142 The paternity statute in Maryland, codified paternal status when no genetic connection is as Maryland Code (1999, 2006 Repl. Vol.) §§ 5- found. 1001 et. seq. of the Family Law Article, outlines the steps and processes through which the state The appellant argues that a woman has no can establish paternity, and thus hold alleged equal opportunity to deny maternity based on fathers responsible for parental duties, such as genetic connection — in essence, that in a child support. It is also the statute that allows paternity action, if no genetic link between a alleged fathers to deny paternity. man and a child is established, the man would not be found to be the parent, and the matter Section 5-10025 outlines the legislative would end, but a woman, or a gestational carrier, purpose of the statute, providing that "this as in this case, will be forced by the State to be the "legal" mother of the children, despite her Page 9 lack of genetic connection.
State has a duty to improve the deprived social The appellant offers that, under his and economic status of children born out of interpretation of the parentage statutes, the wedlock," and that its goals are "to promote the E.R.A. problem is avoided, " because a non- general welfare and best interests of children genetic gestational carrier could apply to the born out of wedlock by securing for them, as court for a parentage order and receive one upon nearly as practicable, the same rights to support, a showing that she was not genetically related to care, and education as children born in the child and never intended to be its parent." wedlock," and "to impose on the a mothers and fathers of children born out of wedlock the basic Maryland law currently accommodates, if obligations and responsibilities of parenthood." not contemplates, a birth certificate on which the mother is not identified. Thus, the trial courts To establish paternity, a proceeding must may pass such an order. Maryland Code (1982, be brought before a child's eighteenth birthday,6 2005 Repl. Vol., 2006 Supp.) § 4-211 of the and shall be filed either by the mother or by a Health-General Article details the third party if the mother is deceased or otherwise unable or unwilling to file such a complaint.7 A Page 12 blood test may be requested in process through which the "Authorization of Page 10 new certificates of birth" may be obtained . It provides, as relevant: conjunction with the proceeding,8 and, at trial, the burden is on the complainant to prove that "(a) Except as provided in subsection (c) of the "alleged father is the father of the child ."9 this section, the Secretary shall make a new If, however, the trial court finds that the alleged certificate of birth for an individual if the father is the father, then it shall declare Department receives satisfactory proof that: paternity.10 Section 5-1028 of the Family Law Article details that an unmarried father and "(1) The individual was born in this State; mother "shall be provided an opportunity to and execute an affidavit of parentage " as provided for under HG 4-208. If the trial court, however, "(2) Regardless of the location, one of the finds that the alleged father is not the father, it following has occurred: can set aside or modify the "(i) The previously unwed parents of the Page 11 individual have married each other after the birth of the individual; declaration of paternity.11 Thus, the court has the power to declare that an alleged father has no
143 "(ii) A court of competent jurisdiction has have children. Whether the reasons for not entered an order as to the parentage, producing a child in the traditional sense are legitimation, or adoption of the individual; or biological or not, adoption is no longer the only option. One can certainly imagine a married "(iii) If a father is not named on an earlier couple that is infertile, but wishes to have certificate of birth: children of their own genetic makeup. Assisted reproductive technologies allow for that to "1. The father of the individual has occur. The paternity statute, clearly, did not acknowledged himself by affidavit to be the contemplate the many potential legal issues father; and arising from these new technologies, issues that will continue to arise unless the laws are "2. The mother of the individual has rewritten or construed in light of these new consented by affidavit to the acknowledgment." technologies. As it exists, the paternity statute serves to restrict, rather than protect, the (Emphasis added). The appellant contends relationships the intended parents wish to have that, because the statute controlling new birth with children conceived using these new certificates only addresses "parentage," without processes. limitation to as to which, in the abstract, it does not preclude the courts from issuing an order Again, the paternity statute, as written, authorizing a birth certificate that does not list provides an opportunity for genetically unlinked the mother's name.12 We agree; the only matter males to avoid parentage, while genetically remaining is construing the parentage statutes in unlinked females do not have the same a way that affords women the same opportunity to deny parentage as men have. Page 14
The paternity statute was added to the option. This Court has found that any action by Family Law Article in 1984. See Acts of 1984, the State, without a substantial basis,13 that chapter 296, § 2. Judging from language the imposes a burden on, or grants a benefit to one Legislature used in drafting the statute, the sex, and not to the other, violates the Maryland Legislature did not contemplate anything outside Equal Rights Amendment. Giffin v. Crane, 351 of traditional childbirth. For example, § Md. 133, 149, 716 A.2d 1029, 1037 (1998). There, where the parents of two girls separated, Page 13 the two girls remain ed with the father, with the mother maintaining regular visitation until 5-1027 of the Family Law Article provides, moving to another state a year later. 351 Md. at "[t]here is a rebuttable presumption that the 135, 716 A.2d at 1030. In the divorce child is the legitimate child of the man to whom proceedings, both parties asked for custody, its mother was married at the time of support, and attorney's fees. 351 Md. at 135, 716 conception," and the legislative purpose of the A.2d at 1030. Custody and visitation were statute purports to be to aid "children born out of resolved by written agreement that detailed that wedlock." The statute does not provide for a there would be joint legal custody of the situation where the potential parents are children, but that physical custody would remain unmarried, much less a situation where children with the father. 351 Md. at 135-136, 716 A.2d at are conceived using an assisted reproductive 1030-1031. The agreement also contemplated technology. the possibility of annual reviews of the residential status of the children, to be What had not been fathomed exists today. conducted, at the requesting party's expense, by The methods by which people can produce a mental health professional selected by the children have changed; the option of having parties. 351 Md. at 136, 716 A.2d at 1031. After children is now available, using these methods, one such investigation, the mental health to people who, otherwise, would not be able to
144 professional recommended that custody be "The basic principle of the Maryland Equal changed from the father to the mother, citing an Rights Amendment, thus, is that sex is not a emotional need of girls. 351 Md. permissible factor in determining the legal rights of women, or men, so that the treatment of any Page 15 person by the law may not be based upon the
at 137, 716 A.2d at 1031. By the time the review Page 16 had been completed, all other issues, including child support, had been settled. 351 Md. at 138, circumstance that such person is of one sex or 716 A.2d at 1032. After the father refused to the other . . . that amendment generally accept the health professional's invalidates governmental action which imposes recommendation, the mother filed a petition to a burden on, or grants a benefit to, one sex but modify custody and for child support. 351 Md. not the other one. at 138, 716 A.2d at 1032. * * * * The trial court granted the change in custody, commenting that: "[T]he equality between the sexes demanded by the Maryland Equal Rights "[T]he Court gleans ... a girl child having Amendment focuses on `rights' of individuals particular need for her mother has seemed to `under the law,' which encompasses all forms of come to the fore and is a necessary factor in my privileges, immunities, benefits and determinations in this case. responsibilities of citizens. . . . As to these, the Maryland E.R.A. absolutely forbids the "The Court feels that the best interests of determination of such `rights,' as may be the children and the material change of accorded by law, solely on the ba sis of one's circumstances, as exemplified by the reaching an sex, i.e., sex is an impermissible factor in age where [the child] at the very least making any such determination. . . . the Equal exemplifies a need for a female hand, causes the Rights Amendment's guarantee of equality of Court to come to the conclusion that the children rights under the law `can only mean that sex is should reside with their mother." not a factor.'"
351 Md. at 140-141, 716 A.2d at 1033. 351 Md. at 148-149, 716 A.2d at 1037 (citations omitted). Vacating the judgment of the In his appeal to the Court of Special intermediate appellate court, this Court Appeals, the father argued that the trial court concluded that the Equal Rights Amendment erred by considering the sex of the parents as a "prohibits genderbased classifications, absent factor in its custody determination. 351 Md. at substantial justification, whether contained in 141, 716 A.2d at 1033. The Court of Special legislative enactments, governmental policies, or Appeals, in an unreported opinion, held that by application of common law rules." 351 Md. "[t]he consideration of gender was a valid at 149, 716 A.2d at 1037. consideration in determining residential custody in this case." 351 Md. at 141, 716 A.2d at 1034. Other Maryland cases reflect the application of the Amendment's intent. See This Court, having decided the ultimate Burning Tree Club v. Bainum, 305 Md. 53, 501 question to be whether, in a child custody A.2d 817 (1985) (holding that the E.R.A. proceeding, the sex of the parent is a legitimate drastically altered traditional views of the and proper consideration in determining which validity of sex-based classifications imposed of them is the appropriate residential custodian, under the law, and was cogent evidence that the held: people of Maryland were fully committed to equal rights for men and women); Rand v. Rand, 280 Md. 508, 374 A.2d 900 (1977) (holding that
145 the common law rule placing primary liability doubts as to its constitutionality should be for the support of minor children on the father avoided if the language of the statute permits); was irreconcilable with the E.R.A., and noting Curran v. Price, 334 Md. 149, 172, 638 A.2d 93, that the "parental obligation for child support ... 104 (1994) (hold ing that if a statute is is one shared by both parents"); Kline v. Ansell, susceptible to two reasonable interpretations, 287 Md. 585, 414 A.2d 929 (1980) (holding one of which would involve a decision as to its constitutionality, the preferred construction is Page 17 the one which avoids the constitutional question); Davis v. State, 294 Md. 370, 377, 451 that a common law rule that only men could sue A.2d 107, 111 (1982) (holding that a or be sued for criminal conversation violated the construction of a statute giving rise to doubts as E.R.A.); Condore v. Prince George's Co., 289 to its constitutionality should be avoided if the Md. 516, 425 A.2d 1011 (1981) (holding that language permits); District Land Corp. v. the common law doctrine of necessaries, which Washington Suburban Sanitary Comm'n, 266 obligated the husband, but not the wife, to pay Md. 301, 312, 292 A.2d 695, 701 (1972) for his spouse's necessaries, violated the (holding that when two constructions of E.R.A.); Turner v. State, 299 Md. 565, 474 A.2d statutory 1297 (1984) (holding that a criminal statute which prohibited the employment by taverns of Page 19 females, but not males, violated the E.R.A.); Elza v. Elza, 300 Md. 51, 475 A.2d 1180 (1984) language are possible, courts will avoid the (abolishing the maternal preference doctrine, construction that makes the provision illegal and holding that "neither parent shall be given nugatory); Barrett v. Clark, 189 Md. 116, 127, preference solely because of his or her sex"). 54 A.2d 128, 133 (1947) (holding that where a These rulings reflect this Court's understanding statute, susceptible to two possible that both mothers and fathers will be provided constructions, has doubtful constitutionality, equal treatment under the law, and that neither courts will adopt that view of the enactment that will be shown preference simply because of his a voids fundamental objections). or her sex or familial role. The language of the paternity statute need Because Maryland's E.R.A. forbids the not be rewritten. Interpreting the statute to granting of more rights to one sex than to the extend the same rights to women and maternity other, in order to avoid an equal rights as it applies — and works quite well — to men challenge, the paternity statutes in Maryland and paternity is all that is required.15 must be construed to apply equally to both males and females.14 This Court has long held that a Page 20
Page 18 Furthermore, for reasons discussed in part C. infra, because there is sufficient evidence that statute will be construed to avoid a conflict with the State would not object to the removal of the the Constitution whenever that course is gestational carrier's name from the birth possible. Deems v. Western Maryland Ry. Co., certificate, and because such a result would not 247 Md. 95, 102, 231 A.2d 514, 518 (1967). See be inconsistent with the current statutes also R.A. Ponte Architects, Ltd. v. Investors' controlling the issuance of birth certificates, we Alert, Inc., 382 Md. 689, 718, 857 A.2d 1, 18 hold that it is within a trial court's power to order (2004) (stating that a court will, whenever the MDVR to issue a birth certificate that reasonably possible, construe and apply a statute contains only the father's name. to avoid casting serious doubt upon its constitutionality); Harryman v. State, 359 Md. 2. 492, 509, 754 A.2d 1018, 1027 (2000) (holding that an interpretation of a statute which raises
146 The Circuit Court opined that "it is not in cases involving the surname of a child and a the best interests of the minor child [to remove dispute by the parents over that name, two the surrogate mother's name from the birth different standards are applied under two certificate]." The only explanation it provides, similar, yet separate, circumstances. Compare however, is as follows: Schroeder v. Broadfoot, 142 Md. App. 569, 790 A.2d 773 (2002) with Dorsey v. Tarpley, 381 "There are a lot of public policy reasons Md. 109, 847 A.2d 445 (2004). why it is not in the best interests of the child not to have the mother's name on the birth As Schroeder demonstrates, where the child certificate. has "no initial surname," the courts will apply a "pure best interests" standard. There, the Court "There are health reasons why you might of Special Appeals, applying this standard, held want to have, and it would be good to have the that a child's best interests were not necessarily mother's name on the birth certificate, and have served by automatically assuming the father's that information available." surname. The case involved two unmarried parents who disagreed as to whose surname the It is clear, however, that, the trial court's unborn child should assume upon birth. 142 Md. explanation aside, the best interests of the child App. at 572, 790 A.2d at 775. After birth, the ("BIC") standard does not apply to the unusual mother did not report that Broadfoot was the circumstance in the case sub judice. While we father, so his name was not listed on the child's have noted previously that "the controlling birth certificate. 142 Md. App. at 572, 790 A.2d factor in adoption and custody cases is ... what at 775. Upon discovering that the mother's best serves the interest of the child," In re surname had been listed on the birth certificate, Adoption/Guardianship No. 10941, 335 Md. 99, the father filed 113, 642 A.2d 201, 208 (1994), it is clear that the context in which the issue arises is Page 22 significant in determining the standard by which to evaluate the situation. a Complaint against the mother; the mother, in turn, filed a Complaint to Establish Paternity, Page 21 Custody, and Child Support against the father. 142 Md. App. at 571, 790 A.2d at 775. Prior to In family law cases, courts will employ the the paternity action, the father had not BIC standard in their analysis when there is a acknowledged paternity of the child, but had dispute concerning custody of the child by admitted to that "possibility." 142 Md. App. at opposing parents or third parties. This Court, for 571, 790 A.2d at 775. After blood testing example, has stated previously: revealed a paternal genetic connection, the father took action to have the child's surname changed "A court faced with a question of child from the mother's last name, "Schroeder," to his custody upon the separation of the parents may own, "Broadfoot." 142 Md. App. at 571, 790 continue the joint custody that has existed in the A.2d at 775. The father argued, primarily, that past, or award custody to one of the parents, or the child "will become confused over whether to a third person, depending upon what is in the his mother's ex-husband (Brent Schroeder) is his best interest of the child." father." 142 Md. App. at 574, 790 A.2d at 776. The Circuit Court agreed. 142 Md. App. at 575, Taylor v. Taylor, 306 Md. 290, 301, 508 790 A.2d at 777. A.2d 964, 969 (1986) (emphasis added). The use of the BIC standard is highly dependent on the After noting that the proper standard, as circumstances surrounding the case; that is, the established in Lassiter-Geers v. Reichenbach, BIC standard is not always applied uniformly or 303 Md. 88, 90, 492 A.2d 303, 304 (1985), was in the same way, even when the case involves that "when a father and mother of a child fail to parental rights of some sort. For example, in
147 agree at birth and continue to disagree up on the The result in Schroeder is different from surname to be given the child, the question is that which this Court reached in Dorsey. In that one to be determined upon the basis of the best case, there was no paternity dispute; rather, the interest of the child," the Court of Special dispute arose over whether a prior agreement Appeals held that "judicial resolution of the had been reached as to the child's surname. 381 name dispute by application of the customary Md. at 112-113, 847 A.2d at 447. This Court preference for children to bear their father's addressed the differing standards in "change of surnames would violate the Maryland Equal name" cases and "no initial name" cases such as Rights Amendment." 142 Md. App. at 581, 790 Schroeder. In Dorsey, the child was born to un A.2d at 781, citing Lassiter-Geers, 303 Md. at married parents. The father, Tarpley, wanted the 94, 492 A .2d at 306. It noted, in that regard: child's surname to be changed from the mother's surname, Dorsey, to Dorsey-Tarpley. The "A legal presumption that would operate to mother opposed the change. 381 Md. at 111, 847 create a default circumstance in which, absent A.2d at 446. The trial court granted the father's evidence of abandonment or serious misconduct petition for name change, concluding that it by the child's father, the child's best interests are would best serve the interests of the child to deemed to be served by giving him his father's allow the name change. 381 Md. at 114, 847 surname, is a gender-based and gender-biased A.2d 447-448. It based its decision on the child's preference that not only is outdated in the law general interest to have the names of both but also would violate the Maryland Equal parents. The Rights Amendment." Page 24 Page 23 court noted, in that regard, that the child's young 142 Md. App. at 585-586, 790 A.2d at 783. age was a factor, concluding that "here in a circumstance where there is at least a separation, Proceeding on those premises, the the child should at least carry the tradition of intermediate appellate court decided that, under both families." 381 Md. at 114-115, 847 A.2d at the circumstances, a gender neutral, familial role 448. The mother, whose motions for new trial neutral, purely best interest standard would be and to alter or amend the judgment had been the most reasonable: denied, appealed. 381 Md. at 112, 847 A.2d at 446. She contended that the surname had been "We conclude that in resolving `no initial agreed to prior to the birth, and that the father surname' disputes between unmarried parents, had failed to show that the change was in the just as in resolving those disputes between best interest of the child and that the parents who are or were married, either at circumstances were extreme enough to warrant a conception or at the time of birth, a pure best change. 381 Md. at 112, 847 A.2d at 446. interests standard applies. Because the matter is one of equity, however, the doctrine of laches This Court vacated the judgment. 381 Md. applies. Thus, if a father delays in seeking a at 115, 847 A.2d at 448. We noted that, in determination of paternity, or in asserting his general, parents may chose jointly whatever objection to the name the mother has selected name they wish for the child's surname, "just as for the child, the court may conclude that the they determine what shall be a child's given father has acquiesced in the mother's naming of name," but, citing Lassiter-Geers v. the child, and treat his challenge as a request for Reichenbach, 303 Md. 88, 94-95, 492 A.2d 303, the child's name to be changed, to which the 306 (1985), neither parent "has a superior right `extreme circumstances' standard applies." to determine the initial surname their child should bear." 381 Md. 115, 847 A.2d at 448. 142 Md. App. at 587-588, 790 A.2d at 784- Furthermore, we reiterated that, in cases where 785. the child has "no initial name at birth," courts
148 must "look at what is in the best interests of the trial court should consider the `best interests of child before determining if a name change is the child' standard as a means of deciding the warranted." 381 Md. at 115-116, 847 A.2d at dispute." 448-449, quoting West v. Wright, 263 Md. 297, 299, 283 A.2d 401, 402 (1971). We noted, 385 Md. at 325, 869 A.2d at 754. however, that there is a presumption against granting such a change except under "extreme Page 26 circumstances," 263 Md. at 300, 283 A.2d at 403.16 As to that, we said, the proponent of the McDermott was a custody dispute between name change has the the child's natural father, McDermott, and his maternal grandparents, the Dougherty's. 385 Md. Page 25 at 323-324, 869 A.2d at 753. After the Circuit Court for Harford County found Patrick's mother burden of satisfying the "extreme to be "unfit," it proceeded to find that circumstances" standard, e.g., bad parental McDermott's employment as a merchant marine, behavior. 381 Md. at 116-117, 847 A.2d at 449, which required him to spend long intervals at citing Schroeder, 142 Md. App. at 584, 790 A.2d sea, constituted an "exceptional circumstance" at 782 (noting that abandonment and serious as defined in Ross v. Hoffman, 280 Md. 172, misconduct disgracing an existing surname are 191, 372 A.2d 582, 693 (1977). Mindful of, and of paramount importance because they applying the "best interests of the child" "epitomize the sort of exceedingly negative standard, the court concluded that the child behavior by a parent that will justify changing Patrick required a more stable living situation. the child's surname, when the parents gave the 385 Md. at 324, 869 A.2d at 753. The Circuit child that parent's surname at birth"). In contrast, Court therefore awarded custody of Patrick to for "no initial name" cases, where parents have the Dougherty's. 385 Md. at 324, 869 A.2d at not agreed on a child's surname, the proponent 753. for the name change must demonstrate that it is in the child's best interest under a Lassiter-Geers In analyzing this case, we first noted that, "pure best interests" standard. 381 Md. at 117, in a situation where both parents seek custody, 847 A.2d at 449. each parent possesses a constitutionally- protected fundamental parental right. 385 Md. at As Schroeder and Dorsey illustrate, in 353, 869 A.2d at 770. Under Maryland Code parental disputes, the use of the best interests of (1984, 2006 Repl. Vol.) § 5-203(d)(2) of the the child standard is dependent on the Family Law Article,17 we observed, neither circumstances. Where the dispute is between a parent has a superior right to exercise the right to parent and a non-parent, however, while the provide "care, custody, and control" of the "best interests of the child" standard is a factor children. 385 Md. at 353, 869 A.2d at 770. in the judicial resolution, it is typically not Because each parent neutralizes the other's right, addressed until the parent is found unfit. In "the best interests of the child [remains] as the McDermott v. Dougherty, 385 Md. 320, 869 sole standard to apply to these types of custody A.2d 751 (2005), we held that: decisions." 385 Md. at 353, 869 A.2d at 770. Where, however, we explained, "...in disputed custody cases where private third parties are attempting to gain custody of Page 27 children from their natural parents, the trial court must first find that both natural parents are unfit "...the dispute is between a fit parent and a to have custody of their children or that private third party, ... both parties do not begin extraordinary circumstances exist which are on equal footing in respect to rights to `care, significantly detrimental to the child remaining custody, and control' of the children. The parent in the custody of the parent or parents, before a is asserting a fundamental constitutional right. The third party is not. A private third party has
149 no fundamental constitutional right to raise the 385 Md. at 357, 869 A.2d at 772 (emphasis children of others. Generally, absent a added). Furthermore, constitutional statute, the non-governmental third party has no rights, constitutional or "the non-constitutional best interests of the otherwise, to raise someone else's child." child standard, absent extraordinary (i.e., exceptional) circumstances, does not override a 385 Md. at 353, 869 A.2d at 770 (emphasis parent's fundamental constitutional right to raise added). his or her child when the case is between a fit parent, to whom the fundamental parental right Accordingly, this Court also noted that is inherent, and a third party who does not typically, the "best interests of the child" possess such constitutionally-protected parental standard is applied to disputes between natural rights. In cases between fit natural parents who fit parents, "most often aris[ing] in marriage both have the fundamental constitutional rights dissolution issues between ... two to parent, the best interests of the child will be constitutionally equally qualified parents," 385 the `ultimate, determinative factor.' . . . In Md. at 354, 869 A.2d at 771, and not between respect to third-party custody disputes, we shall parents and non-parents. Once the State inserts adopt for Maryland, if we have not already done itself into the parenting situation, by reason of so, the majority position. In the balancing of the unfitness of the parents or as a result of other court-created or statutorily-created `standards,' circumstances, the "best interest of the child" such as `the best interest of the child' test, with standard is applied. 385 Md. at 355, 869 A.2d at fundamental constitutional rights, in private 771. custody actions involving private third-parties where the parents are fit, absent extraordinary Thus, in McDermott, a typical "third-party" (i.e., exceptional) circumstances, the custody dispute, where persons other than the constitutional right is the ultimate determinative natural parents or the State are attempting to factor; and only if the parents are unfit or gain custody or visitation with respect to the extraordinary circumstances exist is the `best children of natural parents, we noted that: interest of the child' test to be considered, any contrary comment in ... our cases, notwithstand "the `best interest' standard is inappropriate ing." unless the finder of fact first finds that the natural parents are unfit, the natural parents by 385 Md. at 418-419, 869 A.2d at 808-809 their conduct have waived or lost their (emphasis added). `constitutional protections,' or there is a finding of extraordinary, exceptional, or compelling In the case sub judice, a third party desires circumstances that require the court to remove to relinquish parental rights, not assert them. the child from the natural parents in order to There simply is no contest over parental rights. protect the child from harm. It is only if the There is no issue of unfitness on the part of the parents are unfit, or if there is some exceptional father. Moreover, there is nothing with which to circumstance exposing the child to harm, that measure the father's ability to be a parent the child may be removed from the custody of against, in order for a trial court to rule that it is the parents. If a preliminary finding of parental not in the best interests of the child to grant the unfitness or extraordinary circumstances is father the relief he seeks. Accordingly, the made, the court is then faced with what to do implication by the trial court that the BIC with the child. In only that context, then, after standard should be used in the case sub judice is such preliminary findings are inappropriate, and its use by the trial court was error. Page 28 C. proved, may the custody of the child be based on a `best interest' standard."
150 It requires noting that surrogacy contacts, the surrogate, her husband, and the biological that is, payment of money for a child, are father were to execute an Affidavit of Parentage indicating that the biological father is the father, Page 29 the surrogate's husband agrees and relinquishes all parental rights that he may have, if any, the illegal in Maryland. Two statutes, Maryland registrar would report that information. The Code (2002, 2006 Supp.) § 3-603 of the Division would issue a birth certificate for the Criminal Law Article, entitled "Sale of minor"18 child with the surrogate as the mother and the (formerly entitled "Child Selling," Maryland biological father as the father. Or if the surrogate Code (1957, 1992 Repl. Vol.) Article 27, §35 C) were unmarried and she and the biological father and Maryland Code (1999, 2006 Repl. Vol.) § 5- executed the Affidavit of Parentage, the registrar 3B-32 of the Family Law Article, entitled would report that information. The Division "Prohibited payments"19 (formerly entitled would issue a birth certificate for the child with "Prohibited Compensation," Maryland Code the surrogate as the mother and the biological (1984, 1991 Repl. Vol.) §5-327(a) of the Family father as the
Page 30 Page 31
Law Article) so provide. We have enforced father. Then if the biological parent and/or these statues. See State v. Rankles, 326 Md. 384, surrogate wanted all information regarding the 605 A.2d 111 (1992) (holding that Article 27, mother removed from the birth certificate, the §35E was not limited to payments connected father could institute an action in Court to obtain with an adoption, but also included the an Order specifying the information to be relinquishment of custody of a child for money); removed. Such an order may be obtained, In re Adoption No. 9979, 323 Md. 39, 591 A.2d perhaps, through adoption or a proceeding to 468 (1991) (holding that FL § 5-327 barred determine parentage. After receiving such a payments made by the adopting parents directly Court Order, the Division would issue a new to the birth mother to cover the cost of maternity birth certificate removing the information in clothing); Stambaugh v. Child Support accordance with the Court's directions." Enforcement Admin., 323 Md. 106, 591 A.2d 501 (1991) (holding that an agreement between Letter from James A. Shrybman, Attorney, a divorced couple under which the ex-husband Law Offices of James A. Shrybman, P.C., to consented to the adoption of the couple's Kathryn A. Morris, Birth Section Chief, children by the wife's new spouse in exchange Maryland Department of Mental Hygiene, for the waiver of child sup port that was in Division of Vital Records (April 21, 2001) (on arrears was void as contrary to public policy file with au thor) (emphasis added ). under both FL § 5-327 and Article 27, § 35E). JUDGMENT OF THE CIRCUIT COURT Finally, we reiterate that the Division of FOR MONTGOMERY COUNTY REVERSED Vital Records has expressed no objection to the . CASE REMANDED TO THAT COURT FOR removal of the gestational carrier's name from PROCEEDINGS CONSISTENT WITH THIS the birth certificate in response to an order of the OPINION. COSTS TO BE PAID BY THE Court. In a letter written to the Birth Section STATE. Chief of the Maryland Division of Vital Records outlining several previously discussed ------provisions dealing with in stances of this nature, the Section Chief signed, and in turn, acquiesced Notes: to, the following passage: * Eldridge, J. and Wilner, J., now retired, "If a biological parent is unmarried, and is participated in the hearing and conference of this the only intended parent (usually the father); and case while active members of this Court; after
151 being recalled pursuant to the Constitution, affidavit of parentage recognizing parentage of Article IV, Section 3A, they also participated in the child on the standardized form provided by the decision and adoption of this opinion. the Department of Human Resources under § 5- 1028 of the Family Law Article; 1. The Maryland Division of Vital Records, a division of the Maryland Vital Statistics "(ii) Furnish to the mother written Administration, according to its website, issues information prepared by the Child Support certified copies of birth, death, fetal death, and Enforcement Administration concerning the marriage certificates for events that occur in benefits of having the paternity of her child Maryland, provides divorce verifications, and established, including the availability of child provides information on procedures to follow for support enforcement services; and registering an adoption, legitimation, or an adjudication of paternity. "(iii) Forward the completed affidavit to the Department of Health and Mental Hygiene, 2. Maryland Code (1982, 2005 Repl. Vol., 2006 Division of Vital Records. The Department of Supp.) § 4-208 of the Health-General article Health and Mental Hygiene, Division of Vital provides, as relevant: Records shall make the affidavits available to the parents, guardian of the child, or a child "(a) support enforcement agency upon request.
(1) Within 72 hours after a birth occurs in "(5) An institution, the administrative head an institution, or en route to the institution, the of the institution, the designee of the administrative head of the institution or a administrative head of an institution, and an designee of the administrative head shall: employee of an institution may not be held liable in any cause of action arising out of the "(i) Prepare, on the form that the Secretary establishment of paternity. provides, a certificate of birth; "(6) If the child's mother was not married at "(ii) Secure each signature that is required the time of either conception or birth or between on the certificate; and conception and birth, the name of the father may not be entered on the certificate without an "(iii) File the certificate. affidavit of paternity as authorized by § 5-1028 of the Family Law Article signed by the mother "(2) The attending physician shall provide and the person to be named on the certificate as the date of birth and medical information that the father. are required on the certificate within 72 hours after the birth. "(7) In any case in which paternity of a child is determined by a court of competent "(3) The results of the universal hearing jurisdiction, the name of the father and surname screening of newborns shall be incorporated into of the child shall be entered on the certificate of the supplemental information required by the birth in accordance with the finding and order of Department to be submitted as a part of the birth the court. event. "(8) If the father is not named on the "(4) Upon the birth of a child to an certificate of birth, no other information about unmarried woman in an institution, the the father shall be entered on the certificate." administrative head of the institution or the designee of the administrative head shall: (Emphasis add ed).
"(i) Provide an opportunity for the child's 3. On August 29, 2001, the same Circuit Court mother and the father to complete a standardized for Montgomery County denied the appellant's
152 Petition for Determination of Parentage and 5. Section 5-1002 provides: Issuance of Accurate Certificates of Birth. In that petition, the appellant asked the surrogate "§ 5-1002. Legislative findings; purpose carrier's name be removed from the birth certificate. The denial, which is appealed in this "In general case, occurred on July 9, 2002, and reaffirmed the earlier August 2001 denial. "(a) The General Assembly finds that:
4. We note that the Circuit Court also stated that "(1) this State has a duty to improve the "[t]his is not an appropriate issue for adoption," deprived social and economic status of children without providing any reasons for why not. born out of wedlock; and Section 4-211 of the Health General Article provides that a new birth certificate can issue "(2) the policies and procedures in this where "[a] court of competent jurisdiction has subtitle are socially necessary and desirable. entered an order as to the parentage, legitimation, or adoption of the individual." "Purpose (Emphasis add ed). There is no reason why a trial court, in appropriate adoption proceedings, "(b) The purpose of this subtitle is: could not order the issuance of a new birth certificate without naming a "mother." "(1) to promote the general welfare and best interests of children born out of wedlock by The Circuit Court also noted that there are securing for them, as nearly as practicable, the "health reasons" why the gestational carrier's same rights to support, care, and education as name should remain on the birth certificate, even children born in wedlock; if her pa rental rights are relinquished. This makes little sense . The father in this case could, "(2) to impose on the mothers and fathers and presumably, does, have all the pertinent of children born out of wedlock the basic health records related to the child's birth. This is obligations and responsibilities of parenthood; especially the case where neither the gestational and carrier nor the egg donor is unknown to the father, as in this case. If necessary, the father "(3) to simplify the procedures for could easily provide these documents to the determining paternity, custody, guardianship, hospital, to the child, or to third parties. and responsibility for the support of children born out of wedlock. The court also reasoned, "[t]here is an abundant precedent for using the genetics test "Scope of subtitle for identifying a natural parent," relying on "(c) Nothing in this subtitle may be Belsito v. Clark, 644 N.E.2d 760, 766 (Ohio construed to limit the right of a putative father to 1994). Belsito dealt with determining whose file a complaint to establish his paternity of a name belonged on the birth certificate when two child. candidates existed, the gestational carrier and the egg dono r. The court resolved the dispute by 6. Maryland Code (1999, 2006 Repl. Vol.) § 5- employing a newly formed "intent" test to 1006 of the Family Law Article provides, as determine who the "mother" should be. 644 relevant: N.E.2d at 767. Because we do not attempt to redefine what a "mother" is in this case, Belsito "(a) A proceeding to establish paternity of a has little applicability. In any event, we reject its child under this subtitle may be begun at any rationale for determining who a "mother" is, that time before the child's eighteenth birth day." intent is the dispositive factor in the parentage determination.
153 7. Maryland Code (1999, 2006 Repl. Vol.) § 5- "(b) If the individual refuses the State's 1010 of the Family Law Article provides, as Attorney's request to submit to a blood or relevant: genetic test, the State's Attorney may apply to the circuit court for an order that directs the "(d) individual to submit to the test."
"(1) Except as otherwise provided in this 9. Maryland Code (1999, 2006 Repl. Vol.) § 5- subsection, a complaint filed under this subtitle 1027 of the Family Law Article provides, as shall be supported by the oath of the mother or relevant: pregnant woman, whether or not she is a party to the paternity proceeding. "At the trial, the burden is on the complainant to establish by a preponderance of "(2) The complaint may be filed without the evidence that the alleged father is the father the oath if the mother or pregnant woman: of the child."
"(i) is dead; 10. Maryland Code (1999, 2006 Repl. Vol.) § 5- 1032 of the Family Law Article provides, as "(ii) refuses to file a complaint; relevant:
"(iii) refuses to disclose the identity of the "If the court finds that the alleged father is father of the child; the father, the court shall pass an order that . . . declares the alleged father to be the father of the "(iv) is mentally or physically incapable of child . . ." making an oath; or 11. Maryland Code (1999, 2006 Repl. Vol.) § 5- "(v) refuses to make the oath. 1038 of the Family Law Article provides, as relevant: "(3) If the complaint is filed without an oath under paragraph (2) of this subsection: "5-1038. Finality of orders; modification
"(i) the complainant shall verify the fact of "Declaration of paternity final; modification the pregnancy or birth; and "(a) "(ii) if the mother or pregnant woman is living, she shall be made a defendant. * * *
8. Maryland Code (1999, 2006 Repl. Vol.) § 5- "(2)(i) A declaration of paternity may be 1021 of the Family Law Article provides: modified or set aside:
"§ 5-1021. Blood or genetic test * * *
"State's Attorney's request "2. if a blood or genetic test . . . establishes the exclusion of the individual named as the "(a) In connection with a pretrial inquiry father in the order." under this subtitle, the State's Attorney may request any individual summoned to the pretrial 12. We note that § 4-211 (a) (2) (iii) allows for a inquiry to submit to a blood or genetic test. new birth certificate to be issued when a man is later determine d, as a result of a paternity "Court order action, to be the father of a child. Under the provisions set forth in this case, a later-
154 determined mother's name could also be added "The chief function of the birth certificate to the certificate. is to record the circumstances of an individual's birth. . . . The secondary function of the birth 13. This Court has applied a strict scrutiny certificate is to establish the legal circumstances standard when reviewing gender-based of an individual's birth. Under the statute, the discrimination claims. See, e.g., Giffin v. Crane, names of natural (genetic) parents may[ be] 351 Md. 133, 150, 716 A.2d 1029, 1037 (1998) removed [and] the names of the adoptive parents (holding that the Equal Rights Amendment flatly inserted in their place. As such, the document prohibits gender-based classifications, absent tells the state and public institutions to whom substantial justification ); State v. Burning Tree they may look for the support of the child, for Club, Inc, 315 Md. 254, 294, 554 A.2d 366, 386 permission in the case of a minor, for inquiry in (1989) (holding that the burden of justifying matters concerning the child." gender classifications falls upon the State, and that the level of scrutiny to which the The resolution of this case does not require classifications are subject is " at least the same that were-define the term, " mother," nor is there scrutiny as racial classifications"); Rand v. any dispute as to the purpose of the birth Rand, 280 Md. 508, 512-514, 374 A.2d 900, certificate. 903-904 (1977) (finding instructive, in interpreting the breath of Maryland's Equal 15. Judge Cathell's dissent correctly notes that Rights Amendment as it applied to sex this case illustrates how new reproductive discrimination, the Supreme Court of technologies have produced situations virtually Washington's " overriding compelling state inconceivable decades ago. In Re Roberto, ___ interest" standard, and the Illinois Supreme Md. ___, ___, ___ A.2d ___, ___ [slip op. at 1] Court's "strict judicial scrutiny" standard). (2007) (Cathell, J., dissenting). He feels, however, that the majority's decision to address 14. The appellant offers additional arguments one of these situations opens the floodgate to a that we need not address to resolve this case. He number of moral problems, ones best left to the first argues that it is important to define the term Legislative Branch to address. ___ Md. at ___, "parent," correctly. The appellant focuses, in ___ A.2d at ___ [slip op. at 1 ] (Cathell, J., turn, on how the courts should define the word dissenting). Needless to say, we do not agree. "mother" in light of developing technologies, noting: Primarily, his dissent seems concerned that this opinion creates an "intent" test. The dissent "[I]n this case, the gestational carrier who feels that, because the gestational carrier in this actually gave birth to the children is not case has requested to have her name removed genetically related to the children in any way, from the birth certificate without challenging, in but might be considered the birthmother. And the same manner a man might in a paternity suit, the person who is, in fact, genetically related to that the genetic material used to create the child the children, and might be considered the mother is actually hers, this opinion allows a woman to of the children under a genetic definition of the challenge maternity because she did not "intend" term, is not listed anywhere. So, who actually to be a mother. ___ Md. at ___, ___ A.2d at ___ belongs on the birth certificate as mother [slip op. at 4] (Cathell, J., dissenting). Thus, depends entirely on the definition accord ed to Judge Cathell worries that thousands of men the term." now will want to challenge paternity because they did not intend to become fathers. The appellant next asserts that under Maryland law, the birth certificate establishes This opinion does nothing of the sort. The legal, not scientific facts, regarding an paternity statute, as applied to men, and now, as individual's birth. He reasons: to women, merely establishes that the process by which men can challenge paternity can now be
155 employed by women. As written, the paternity "§ 5-3B-32. Prohibited payments statute does not explicitly include intent as a factor to be considered. As noted previously, we "Prohibited act reject the Circuit Court's reliance on Belsito, supra, 644 N.E.2d 760, which resolved a similar "(a) Except as otherwise provided by law, a situation by looking at who, as between the egg person may not charge or receive, from or for a donor and the gestational carrier, was "intended" parent or prospective adoptive parent, any to be the mother. See note 4, supra at 6. This compensation for a service in connection with: opinion does not create an "intent" test for women. "(1) placement of an individual to live with a preadoptive family; or This opinion does not attempt to predict the future of reproductive technologies, it does not "(2) an agreement for custody in attempt to write policy on the to pic of contemplation of adoption. surrogacy, and it does not define what a "mother" is. "Construction of section
16. There were two factors to consider when "(b) This section does not prohibit determining the existence of such circumstances, payment, by an interested person, of a namely: whether there is any evidence of reasonable and customary charge or fee for misconduct by a parent that could make a child's adoption counseling, hospital, legal, or medical continued use of a parent's name disgraceful, services. and whether the parent wilfully abandoned or surrendered his or her natural ties to the parent. "Duty of State's Attorney
17. § 5-203(d )(2) provides that "the parents are "(c) Each State's Attorney shall enforce this the joint natural guardians of their minor child," section. that they are "jointly and severally responsible for the child's support, care, nurture, welfare, "Penalties and education," and that they each "have the same powers and duties in relation to the child." "(d) A person who violates any provision of this section is guilty of a misdemeanor and on 18. Section 3-603 provides as relevant: conviction is subject to a fine not exceeding $100 or imprisonment not exceeding 3 months "§ 3-603. Sale of minor or both, for each offense."
"Prohibited ------
"(a) A person may not sell, barter, or trade, Page 32 or offer to sell, barter, or trade, a minor for money, property, or anything else of value. Dissenting Opinion by Cathell, J.
"Penalty I dissent.
"(b) A person who violates this section is This case illustrates that the process of guilty of a misdemeanor and on conviction is manufacturing children can lead to unusual subject to imprisonment not exceeding 5 years situations that would have been virtually or a fine not exceeding $10,000 or both for each inconceivable decades ago when the relevant violation." statutory scheme was enacted. I do not necessarily agree or disagree that the remedy for 19. Section 5-3B-32 provides: the present situation created by the majority is
156 appropriate or otherwise. I think it is wrong for (except the child and the hospital) then claims the majority to fashion, in the first instance, the foul because the law requires the naming of a public policy it is creating as a remedy. The mother on a birth certificate. Then the majority issues present in this case, going as they do to of this Court joins the clamor and decrees that the very heart of a society, are, in my view, a the child has no mother at birth — a concept matter for the Legislative Branch of government thought impossible for tens of thousands of and not initially for the courts. It is important to years. note what this case is not. It is not about a woman, married or otherwise, wanting to be a One supposes that under the aegis of what mother, who has difficulty in conceiving through is occurring in this case, that if a source of sperm sexual intercourse or who does not want to does not intend to be a father, he could assert conceive through sexual intercourse or direct that he was not the father,2 and under artificial insemination, and thus wants to have her egg fertilized outside her body and then Page 34 implanted back into her womb where she will, hopefully, be able to give natural birth to a child the theories of the majority, a child could come she will raise as the mother. This case has into the world with neither a mother nor a father nothing to do with attempts to cope with female at birth.3 fertility problems of any kind. In this case (so far as the record reflects), there is no woman, As noted, the appellant and the majority, genetic mother, birthmother, or otherwise, who assert that there is inequality in the treatment of wants to mother the resulting child or who wants the respective genders, in that a man is permitted her name on the birth certificate. by statute to deny paternity — to deny that he is the father of the child because there is a This is simply the case, apparently, of a procedure in which that denial can be litigated. man who wants to be a father and, recognizing He4 argues that there is no similar method by that he could not do it by himself, went out and which a woman can deny maternity. However, arranged for (perhaps hired) two different that is not the issue in the present case. The women and an assembler to help him relevant woman is not denying that she produced manufacture a child — one woman to donate (or the egg that was fertilized. Neither appellant nor sell) the egg (a genetic mother), a technician the woman that carried the child through the (apparently paid) to fertilize the egg in a gestation period deny that she bore and delivered the child and that it came out of her birth canal. Page 33 If appellant or either of the women were asserting the same issue that exists in paternity dish,1 and another woman (the birth mother) to litigation, the majority might have a point. What carry the fetus through the gestation period and the majority fails to realize in its opinion, is that then to eject the child in what would normally be what a man is doing when he challenges considered the birthing process. At the end of paternity is that he denies his this manufacturing process, the result is a child who, according to the majority, is to have no Page 35 mother at birth. particular involvement in fertilizing an egg and The hospital, having some familiarity with thus he asserts he is not the particular or correct normal birthing processes, understandably father of the child — a man is not asserting that perceives what happens to be a birth and places the child has no father at all. the name of the woman from whence the child has come (at least the child emerged from the In the present case, what the majority does, birth canal of the woman), on the birth is to establish as a matter of public policy that it certificate as required by State law. Everybody, is possible for there to be a denial of all maternity, i.e., that there is no mother at all at
157 birth, not that a particular woman is not the "Again, the paternity statute, as written, mother. The majority, in essence, holds that if provides an opportunity for genetically unlinked you do not intend to be the mother, you should males to avoid parentage, while genetically not be responsible as a mother. The re are unlinked females do not have the same option. probably tens, if not hundreds of thousand s, of This Court has found that any action by the fathers (and certainly mothers as well) who did State, without a substantial basis, that imposes a not intend to be parents at the time of the actions burden on, or grants a benefit to one sex, and not that led to conception, who have been judicially the other, violates the Maryland Equal Rights determined to be responsible for the support of Amendment." the child they did not intend to conceive. With the majority's decision today, if a genetic and/or Ante at ___ (footnote omitted). birth mother does not intend to act as a mother during this manufacturing process — they have I suggest, that the majority's decision today no responsibility as a mother. Presumably, now is not what was fathomed when the General both fathers and mothers (participating in in Assembly enacted the relevant statute and also vitro fertilization or sexual intercourse), if they was not what the people of the State thought enter into contracts or other writings or they were approving when they approved the agreements, providing that neither intends to be Equal Rights Amendment (the writer amongst a parent, or just engage in acts without any them). It simply defies common sense and all agreement, in which a child is conceived, the principles of logic to hold that the people of the mother and the father (because he must be State and their representatives thought at the treated equally as well) can claim that no one time they were enacting and approving the should be responsible for the rearing and support statute and the Constitutional Amendment, that of the child(ren). Presumably, under such they were permitting the courts to create a circumstances the only responsibility for the procedure whereby children would end up not rearing of children would be the State's. having any mothers, even at birth.
If ever there was a strained interpretation of Additionally, as noted earlier, when, in this a statute, the majority's attempt to construe case, the majority of the Court holds that Maryland Code (1982, 2005), § 4-211(a)(2)(ii), which allows the issuance of new Page 37
Page 36 it is permissible for a child to be listed as having no birth mother (either the donor of the egg, who birth certificates when a court enters "an order as is actually the genetic mother, or the woman to the parentage" of a child, as contemplating the who carries the fetus through gestation and then issuance of certificates of birth showing that a "births" the child), partially on the implied basis child had no mother at birth, is it. The majority that neither intended to be a mother, they are recognizes this to be the case when saying: "The creating a violation of the Equal Rights paternity statute, clearly, did not contemplate the Amendment in doing so. If a genetic mother and many potential legal issues arising from these a birth mother can deny maternity because new technologies, issues that will continue to neither intended to be mothers, men, who at the arise unless the laws are rewritten or construed time of intercourse in many instances do not in light of these new technologies." Ante at ___. intend to be fathers either, can certainly present Yet it sets about changing the reach of the an argument that they are being discriminated statute because, "What has not been fathomed, against. If gene tic and birth mothers can deny however, exists today." Ante at ___. Then the all maternity, why cannot genetic fathers and majority creates new public policy permitting fathers present at birth deny all paternity. In so the manufacturing of children, saying: far as the Constitution is concern ed, it would make no difference if the child results from accident or intent. One could even logically
158 determine that a person who intends conception Additionally, the literature relating to to occur (for whatever purpose), as opposed to families is replete with conclusions respecting one who hopes it would not, should have at least the value of having fathers as a part of the some, if not more, of a support burden. process of family life — available from the birth of the child. Certainly there is similar, or even I point to the possibilities discussed in this greater, value in having mothers involved in the dissent, even though some may consider them to rearing of children. Until now, I presume that it be remote, to highlight why the issues presented was not thought necessary to specifically relate here should be left to the Legislative Branch to such issues to females in that mothers obviously first address. That entity has the resources, via were going to be present at birth. But with this studies and commissions, better access to case, according to the majority, there is to be no ethicists and social scientists, and the like, to mother — just a petri dish. fully explore the full range of questions surrounding this issue and similar issues that One only has to contemplate what might will inevitably occur in the future.5 occur as the child matures, in order to believe that this issue is best left to the representatives of Page 38 the people. What happens when a child is asked to present a birth certificate at a customs area in This Court simply lacks the resources available a foreign country (until recently that is all that to the General Assembly. was required of American citizens in many countries, and remains so in some) and a In my view, if ever there was an instance customs inspector sees that the birth certificate for deference to the Legislative Branch of indicates that the person standing in front of him government — to permit it an opportunity to set or her states that the person has no mother — or public policy — it is this case. Instead, less than even no father or mother? What happens when seven unelected (in contested elections) judges, the child presents such a birth certificate to are, in essence, stating that it is good public authorities outside (or inside) this State in an policy for the people of this State to permit the attempt to acquire a passport? What happens manufacturing of children who have no mothers when such a certificate is presented in the — even at the moment of birth. The majority admission processes of colleges or presented today eliminates, in circumstances such as these, when one wants to enlist in the armed a mother from whom a child could depend upon for support. What is going to happen, if in fact Page 40 men are afforded the same rights that the majority says in the present case are due to services? How is the child going to be adversely women? There would be no father upon whom affected throughout its minority when it has no the child could depend upon mother from whom support can be obtained — and no mother at all? There are many reasons Page 39 why the General Assembly might decide that it is in the best interests of children to have a for support — and no mother upon whom the surrogate or donor mother's name on a birth child could depend. The decision the Court certificate and that, if afterwards she could renders today has broad consequences for the establish that she should not have the obligations State that must support children for whom there of a mother, she could seek the termination of are limited or no means of support. This is her status in order to end her legal responsibility. another reason to defer to the Legislature — to But the Court assumes the policy mantle instead. determine issues relating to the best interests of children, and the resulting State responsibility if Certainly, there can be answers developed the position of the majority were to be the law of in respect to all of these questions and the many this State. others that may exist that I have not presented.
159 But, courts, including this Court, are uniquely that the other woman bore the child and unsuited for the tasks that will lie ahead. I differ "birthed" it. The equivalent really would be, if from my colleagues in the majority, not so much the father acknowledged that his sperm had because I believe them to be necessarily wrong fertilized the egg, but that at the time of in their ultimate result (as long as it will be intercourse he did not intend it to do so or to be applied equally to men), but because I think they a father and thus the Court should declare him are wrong in the doing of it. This issue, and the not to be the father. If such a provision existed many similar ones, that will now arise, are best for a father but not a mother, the Equal Rights left to those who are closer to the people than Amendment might be violated. But it does not those of us in our so-called "ivory towers" now exist for either by statute, although with the (although it could be argued that our towers are majority's opinion it will now exist for the mahogany and red ) who are constitutionally mother but not the father— a situation that may removed from the people of the State. well be a violation of the Equal Rights Amendment. That amendment guarantees equal By its holding, the majority, in my view, treatment to men as well as women. under the circumstances of the issues presented here, has discarded the principle of judicial 3. With the majority's decision today that the restraint in favor of one that improperly usurps mother from whom the child is delivered is not the power of the General Assembly. Somewhere to be considered the mother (and apparently the in this mad rush in which our society is engaged, donor of the egg is not to be considered the at a time when increasing population con mother), the Court opens up the very real tributes to many of the world's possibility that completely disinterested persons will (or could) commence the manufacture of Page 41 children. For instance, an entrepreneur could contract with a sperm donor, contract with an problems, even judges should occasionally egg donor, contract with an assembler, contract pause and say, "What are we doing?" with a woman to carry the child through the gestation period, and a child could be I would affirm the finding of the trial court manufactured with neither a mother nor a father. that the resolution of this issue does not lie The child could then be put up for adoption at a within the Judicial Branch of government but price — and a new business, in the spirit of within the Legislative Branch. American ingenuity, is created. That is, of course, if it can be determined who, if anybody ------or any entity, would have custody of the child. This is, I realize, virtually incomprehensible to Notes: reasoned thought — but, why will it not be something that can happen on the way down the 1. The record is unclear as to the source of the "slippery slope" created by the majority? sperm. 4. The man that made the arrangements is the 2. The majority holds that it is a violation of the plaintiff in this case and, perhaps, the donor of Equal Rights Amendment for women not to be the sperm. able to disclaim maternity altogether, even though one of them produces the egg and the 5. Other countries recognize the need for ethical other carries it through gestation and it emerges overview of new and emerging fertilization from her birth canal — because a man has a techniques. In England, in an article entitled The right to challenge paternity. The majority fails to prospect of all-female conception, the author acknowledge that what a man challenges is that notes: it is his sperm that fertilized the relevant egg. In the present case, there is no challenge to the fact that the particular woman produced the egg and
160 "Scientists are seeking ethical permission to Dissenting Opinion by Harrell, J., which produce synthetic sperm cells from a woman's Raker, J., Joins. bone marrow . . . . We dissent not because we are persuaded . . . that the Majority opinion necessarily is incorrect, but rather because, on the record "Creating sperm from women would mean before us, we are un persuaded that the Majority they would only be able to produce daughters . . opinion is correct or the question necessarily . . The latest research brings the prospect of must be decided at present. We hasten to explain female-only conception a step closer. the seeming conundrum.
"We are in the process of applying for The Majority opinion supplies a judicial ethical approval. gloss to the Maryland statutory scheme for establishment of paternity,1 ostensibly in order . . . to avoid declaring the statute violative of equal protection principles, a conclusion it indicates it "Whether the scientists will ever be able to otherwise would reach if forced to confront the develop the techniques to help real patients — challenge frontally. Maj. slip op. at 12-17. If male or female — will depend on future actually confronted with a constitutional legislation that the Government is preparing as a question that appropriately may be evaded, we replacement to the existing Human Fertilisation count ourselves among the last who would and Embryology Act." criticize such a jurisprudential side-step. The specific question the Majority opinion conceives Steve Connor, The prospect of all-female as being raised, apparently properly, by conception, The Independent, April 13, 2007, Appellant is: "Must the name of a genetically http://news.independent.co.uk/world/science_tec unrelated gestational host of a fetus, with whom hnology/article2444462.ece (last visited April Appellant contracted to carry 13, 2007). With the developing science in the area of manufacturing children, and with the Page 43 problems associated with expanding populations, I would respectfully suggest that in vitro fertilized embryos to term that resulted courts are uniquely unsuited to lead the ethical in children being born, be listed as the mother on debates that lie in the near future. Better, in my the birth certificate?" Maj. slip op. at 1-2. The view, would be a position where the courts, as analysis in which the Majority opinion engages with most areas of great social concern, initially explores deep issues, with ripples extending well defer to the processes of the legislative branch beyond those raised on the record before us. We where all of the important issues can be should not set sail prematurely upon this great rationally debated, instead of courts charging to legal and societal ocean without a better global the forefront, and thus generating the debate as a positioning system (e.g., thorough opposing reaction to their decisions. The issue before the briefs and a well-developed record) as a guide. Court today has not been simmering unanswered Instead, we should vacate the decision of the for decades while the General Assembly ignores Circuit Court for Montgomery County and it; as far as the record shows this is the first remand for further proceedings. instance this issue has been raised in any forum in this State. This case proceeded essentially as what tennis players call a walkover. That is, there was ------no opponent on the other side of the net; no person or entity to expose or test Appellant's Page 42 contentions, factual or legal; a situation which the Majority opinion sweeps up and describes simply as "the unusual procedural posture of this
161 case." Maj. slip op. at 2. Appellant, the stated between the three participants. The unmarried contributor of the sperm that was petition was denied, without hearing, by succinct used in a laboratory to fertilize the eggs obtained order of court dated 29 August 2001 and filed on from the unmarried egg donor, filed a two page 6 September 2001. petition in the Circuit Court for Montgomery County asking, among other things, that Holy On or about 17 September 2001, Appellant Cross Hospital be "authorized" to report to the filed a motion for reconsideration, through his Maryland Division of Vital Records that the then-counsel (the same person who represented twins born to a third party surrogate "carrier" of him in filing the original petition and the fertilized embryos have no mother. Appellant sought to be designated as the father Page 45 and the children assigned his surname. No equal protection argument, expressly or implicitly, was supporting papers and who notarized Appellant's advanced. Accompanying his petition were three and the surrogate's affidavits). Besides affidavits, one from Appellant, one from the egg reiterating the allegations of the original petition, do nor, and one from the surrogate carrier. Appellant's then-counsel contended:
The egg donor, a friend of Appellant, The Court's denial of Petitioner's request attested on 6 August 2001 that she was leaves Petitioner and the surrogate in a legally awkward posture . The birth certificates for the Page 44 subject children will now bear the Petitioner's name as the father and the surrogate's name as unmarried at the time of donation and that it was the mother. her understanding that, if, as, and when viable embryos were created from the joining of her Thus, the Court's action has the operative eggs and Appellant's sperm, some other woman effect of allowing inaccurate information to be would carry the embryos to term, and "the filed in official State records; and of bestowing child(ren) will be registered as the biological parental rights and responsibilities on the child(ren) of the father and the surrogate," with surrogate who has no biological or adoptive an attempt there after made to delete the parental link to the children — and expressly surrogate's name as mother on the birth made clear that she did not want any. In so certificate.2 doing, the operative effect on the Petitioner is to diminish his sole/exclusive parental position to a The surrogate, who gave birth to the shared parental position in which his rights and children at Holy Cross, stated in her 24 August responsibilities only extend to the point where 2001 affidavit, that she was not "in any way hers (even though they are biologically and genetically related to the children born to me on legally non-existent) begin. The operative effect August 23, 2001" and that she did not want "to of the Court's denial also impacts future be named in any way on [their] birth certificates inheritance rights of the subject children and . . . ." She consented to the relief sought by those of the surrogate's own biological children, Appellant. Her affidavit and that of Appellant even though they are in no way parties to this were subscribed to before Appellant's then- matter. counsel, who served as notary public. No copies of any written contractual agreements between None of the persons sought, or even Appellant, the donor and/or the surrogate carrier expected, and do not want the result that will were alluded to in, let alone attached to, the occur. Indeed, the very purpose in petitioning petition, consent, or affidavits. No averments the Court was to obtain the court's assistance in were alleged in the petition, affidavits, or clarifying the accurate parentage, to ensure that consent as to consideration supporting the correct information would be filed with the alleged undertakings and understandings as State, and to avoid precisely the result which
162 would come to pass in the absence of the in the case, albeit in a way that benefitted only Petitioner instituting this matter. his desired result. It was contended in the memorandum, for the first time in the The entire thrust of the reconsideration proceeding, that Appellant "entered into a motion was whether reporting the surrogate as the children's mother was inaccurate. No equal Page 47 protection argument regarding the application of the paternity statute was mounted. variation to the traditional surrogacy contract called a `gestational surrogate contract'." In such In response to the motion for an arrangement, it was claimed, while "one or reconsideration, the Circuit Court issued an both of the prospective parents may be order, dated biologically related to the child, [t]he surrogate provides only a `host uterus'." No copy of the Page 46 contract was attached to the memorandum, nor was it offered at the hearing. 2 October 2001 and filed on 4 October 2001, declaring Appellant the father of the twin girls At the 14 January 2002 hearing on the and directing Holy Cross Hospital to issue birth previously denied motion for reconsideration, certificates for the children with Appellant's Appellant's new counsel uttered the words surname, but including the surrogate birth "equal protection" for the first time in this mother's name as their mother. On 1 November record: 2001, Appellant's then-counsel filed a request for hearing on the reconsideration request, You can take a putative father and as I said complaining that he did not receive a hearing on it a moment ago, you can hang that child on him. the motion, although one was requested, and that You can say if you don't want to be the father, the Court's 29 August order denying relief and we will haul you into court. We will take your its 2 October 2001 order granting some, but not genetic material. We will match it to the child all of the relief sought originally, "seem[s] and if it matches, you're the father. You're the somewhat unclear or inconsistent."3 parent. It is at the moment that we can determine that the genetics match, that the obligations, A hearing on the motion for reconsideration duties and rights of parenthood attach to that was set for 10 December 2001. Replacement individual. counsel entered her appearance for Appellant (and who continued to represent him on appeal) You would have an equal protection on 7 December 2001, the same day on which argument if you said that well, that is not true for separate counsel entered an appearance for the the mother. It is the passage down the birth canal surrogate. No consideration of appointing that makes the mother the mother, not the counsel for the children was evident. The genetics. hearing on reconsideration was rescheduled for 14 January 2002. Further relevant reference does not appear until ten pages later in the transcript when In Appellant's 14 January 2002 hearing Appellant's counsel obliquely (giving her the memorandum, he nowhere raises a facial or as- benefit of much doubt) alludes that: applied equal protection challenge to the statutory scheme. His arguments there were that The legislature has tried over the past two the "gestational surrogate" was not the mother decades no less than five times to deal with this and was in no way biologically related to the issue and they have not been able to do so when children; therefore, it was asserted to be in the they have passed laws one way, the Governor best interest of the children not to have her name has vetoed them. When they have passed laws appear on the birth certificates. Appellant thus the other way, they fail in one House or the argued the best interest of the children standard
163 other. It is — there is a paucity of law. I agree Page 49 with that. We are satisfied that, on this record, an But should Courts be called upon to deal equal protection challenge to the Maryland with these issues when the legislature doesn't? paternity statute, factually or as applied, was Sometimes the court has to lead and we can all neither properly presented, argued, or decided in think of the cases where the Court has done that. the Circuit Court. Combined with the one- They all do it in the areas of Civil Rights and sidedness of how the matter proceeded in the Equal Rights and that is where this case is. Circuit Court and before this Court, and the gaps in the record, we are unwilling to exercise the Page 48 discretion granted by Md. Rule 8-131 (a) "([o]rdinarily, the appellate court will not decide Counsel for the surrogate, other than adopting a any other issue unless it plainly appears by the "me too" approach regarding what Appellant's record to have been raised in or decided by the counsel said, did not mention, explicitly or trial court, but the Court may decide such an implicitly, an equal protection argument. She issue if necessary or desirable to guide the trial filed no legal memorandum and failed to invoke court or to avoid the expense and delay of any legal authorities. In essence, the one-sided another appeal.") to reach and decide the issues argumentative presentation to the Circuit Court decided by the Majority opinion.4 was essentially purely policy-driven. Page 50 In the Circuit Court's 9 July 200 bench ruling reaffirming and explaining its earlier The condition of the record in the present denial of the motion for reconsideration, the trial case is reminiscent of that confronting the Court judge stated, among other things, that he was of Special Appeals in Dintaman v. Board of concerned greatly, on this record, with whether County Comm'rs of Prince George's County, 17 it was in the best interests of the twins that they Md. App. 345, 303 A.2d 442 (1973). In be declared effectively motherless. The Court Dintaman, the plaintiff in the trial court waited also saw, as a partial solution to the until his Motion for Rehearing, filed after complications expressed by Appellant and the summary judgment was entered against him, to surrogate mother, the prospect of a consent raise constitutional arguments of denial of due petition to terminate the surrogate mother's process and equal protection. 17 Md. App. at rights (but which would leave her named on the 347, 303 A.2d at 443. The motion was denied, birth certificates as "mother"). It seems clear that without a hearing, in a terse order which made the trial judge did not perceive Appellant's or the no mention of the constitution al arguments. Id. surrogate's legal arguments seriously to include The intermediate appellate court, when an equal protection challenge because he did not Dintaman pressed his constitutional attack address such a contention. before it, opined:
The appeal noted to the Court of Special It is not entirely clear that in ruling on the Appeals by Appellant was not joined by the Motion for Rehearing [the trial judge] surrogate. She filed no appeal and no brief. Her considered constitutional issues, and indeed it counsel, in a letter to the Court, indicated would have been difficult for him to do so nonetheless that "she wished to join in the brief because there was no evidence against which of the Appellant." Thus, the case, when taken by such issues could be measured, and they were us, on the Court's initiative, before the not developed through the adversary process intermediate appellate court could act, which is required for their proper determination. proceeded with only Appellant's inadequate (in our view) brief and his not-much-more As Chief Judge Murphy said for this Court enlightening oral argument. in Vuitch v. State, 10 Md. App. 389, at pages 397 and 398, 271 A.2d 371, at page 376:
164 `But it would be foolhardy in the extreme particularity that the court is aware firs t, that to there is an issue before it, and secondly,
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undertake the resolution of such complex what the parameters of the issue are. The trial constitutional questions upon a record as court needs sufficient information to allow it to procedurally and substantively deficient as that make a thoughtful judgment. now before us-one in which the constitutional questions, though readily apparent prior to trial, * * * were raised for the first time after the State had concluded its case-in-chief, and then only by an He was required[ ] to present the issue to inappropriate motion (gene rally alleging the trial court with enough particularity to allow unconstitutionality along a front far more limited a reasoned decision upon the matter. Because he in thrust than that presently sought to be aired), failed to do so, we will not consider the issue on submitted without comment, or illuminating this appeal. argument. Whether the trial judge actually considered appellant's constitutional claims We believe the interests of the children cannot be ascertained from the re cord since in need to be heard and considered. We would denying the motion he made no comment remand the case and direct the trial judge to thereon, and may well have concluded, quite appoint counsel for the twins and compel properly, that the constitutional questions could Appellant to pay their counsel's legal fees. Only not be raised at that juncture of the proceedings then might a record be made upon which we by motion for judgment of acquittal. Of course, might be satisfied that we should go where the nothing is better settled than the rule that a Majority opinion goes. question as to the constitutionality of a statute will not be considered on appeal when not The Majority opinion's disposition of the properly raised and decided by the lower court. best interests of the child(ren) standard as "inappropriate" (Maj. slip op. at 27) to the Id. at 350-51, 303 A.2d at 444-45. See also context of this case depends in large measure on Harmony v. State, 88 Md. App. 306, 316-17, its declination to come to grips with the legal 594 A.2d 1182, 1187 (1991) (internal footnotes meaning of " parent," "mother," or "father," in omitted): light of the admitted and relevant scientific advances apparently not contemplated by the Pursuant to Md. Rule 8-131(a), ordinarily, statutory scheme. The Majority's analysis (Maj. we do not decide any issue unless it "plainly slip op. at 18-27) beggars the meaning of these appears by the record to have been raised in or key concepts, and focuses instead on analytical decided by the lower court." It is clear that the differences between custody and visitation cases limitations argument was never "decided" or involving parent-versus-parent on one hand and "directly passed upon" by the circuit court. Nor parent versus non-parent on the other. The was the question ever argued in the traditional Majority opinion overlooks that it was Appellant sense. Indeed, it was barely mentioned below. who injected the best interest of the children "To preserve an issue for appellate review, it standard in this case. We can think of a number must first have been presented, with of emotional, material support, and possibly particularity, as to the trial court." An offhand medical reasons why it may not be in the best remark that the "statute of limitations or interests of these children to be declared something like that" might "come into play" is motherless. It should not be left entirely to simply not particular enough to allow appellate judicial conjecture and review. A party must bring his argument to the attention of the trial court with enough Page 53
165 creativity, however, what the universe of those situation cries out for legislative review and reasons may be. This record begs for further action, but not necessarily judicial intervention development before we come to grips with the at this point and certainly not on the record issues decided by the Majority opinion. If before us in this case. Appellant wishes us to lead through uncharted Maryland waters in an area where the 2. Moreover, the donor expressed in clear Legislature is better suited to consider the language that she wanted no relationship or competing legal and societal values, but may responsibility for any children born from the have been unwilling to do so, he needs to do a fertilized eggs. Specifically, she stated "I do not better job of persuading us if he wants our vote. want my name on any birth certificate(s) . . . and if my name does somehow get placed on such Judge Raker has authorized me to say that birth certificate, I want it removed." she joins in this dissent. 3. We find no lack of clarity or inconsistency. ------Appellant may have been chagrined that he did not get everything he sought, but he had no Notes: claim to lack of clarity or consistency.
1. Chauvinistically titled, Subtitle 10 of the 4. Appellant's brief in this Court is woefully Family Law Article of the Md. Code ("Paternity inadequate to support the license taken by the Proceedings") indeed sends mixed messages Majority opinion. His entire equal protection about establishment of the titles of parent, father, argument in his brief is as follows: and mother. Although claiming that one of its purposes is "to impose on the mothers and The parentage statutes as enforced by the fathers of children born out of wedlock the basic court below do not afford equal protection of the obligations and responsibilities of parenthood" law to men and women similarly situated. (§ 5-1002 (b)(2)), most of the mechanisms for resolving questions of questioned parenthood are If the gestational carrier was a man she framed in terms of ascertaining who is the could deny parentage. And if no genetic link father, as the Majority opinion accurately points could be established, she would be found not to out. It is obvious that the statute, in its current be a parent and the matter would end. Not so state, is a product of simpler scientific times with a woman under the lower court ruling. regarding the process of human reproduction. Paternity historically was the usual question, She has asked to be removed from the where unmarried or adulterous coupling was children's birth certificates. In effect denying concerned, because a father's contribution maternity. It is established as legal fact that she leading to a birth often occurred under the cover is not genetically related to either child, yet she of darkness (literally or figuratively), while a is to be forced by the state to be the legal mother mother's giving birth to the child traditionally of these children. occurred under the bright lights of a hospital room or the eyes of a midwife, though not The doctor on the other hand, being a man, always so. That a woman gave birth largely was could challenge paternity and succeed, because undeniable, while who the father was often was he is not genetically related to the children. the subject of some contention. It is now undeniable that advances in the science of Such disparate treatment does not comport reproductive technologies have created new with Article 46 of the Md. Dec. of R. art. 46 challenges and a certain amount of obsolescence (2001) which states that "[e]quality of rights in many of the underlying premises of the under the law shall not be abridged or denied paternity statute as it exists presently. The because of sex." Majority opinion points that out well. The
166 Under the interpretation of the § 4-211 urged by Appellant, no such equal protection argument would exist, because a non-genetic gestational carrier could apply to the court for a parentage order and receive one upon a showing that she was genetically related to the child and never intended to be its parent.
There is already a body of law in this jurisdiction governing the protection of the rights of non-genetically related individuals who desire to fulfill the role of parent for a child.
No cases are offered to support this argument. No effort is made to detail any failed legislative history in addressing the problems envisioned by Appellant, which he boldly claimed to be the case at the reconsideration hearing in the Circuit Court. See supra at 6.
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167 8/23/2017 SSA - POMS: GN 00210.004 - Non-Marital Legal Relationships (Such as Civil Unions and Domestic Partnerships) - 01/26/2015 Social Security
Program Operations Manual System (POMS)
TN 27 (02-16) GN 00210.004 Same-Sex Relationships - Non- Marital Legal Relationships
CITATIONS: Social Security Act 42 USC 216(h)(1)(A)(ii); 20 CFR 404.345
A. What is a non-marital legal relationship (NMLR)?
We use the term “NMLR” to describe a variety of legal relationships for two individuals who are not considered married, but are provided with some (or all) rights that could be associated with a marriage. Examples of NMLRs include but are not limited to the following: civil union, domestic partnership,
designated beneficiary, and reciprocal beneficiary.
The Social Security Act authorizes us to consider the claimant to be the number holder (NH)’s spouse for benefit purposes when the state of the NH’s domicile would allow the claimant to inherit a spouse’s share of the NH's personal property should the NH died without leaving a will. Under these circumstances, we will treat the couple’s NMLR as a marital relationship for Title II and Medicare benefit purposes. IMPORTANT: Because we do not consider all individuals in NMLRs married for benefit purposes, follow the instructions in this section closely.
1. When to use these instructions
This section contains policy and procedures for determining if the NMLR:
can be treated as a marital relationship for purposes of determining entitlement to Title II and Medicare benefits; and meets the duration of marital relationship requirement.
NOTE: Use the instructions in this section only for same-sex couples. If the NMLR involves an opposite-sex couple, refer the claim for a legal opinion according to instructions in GN 01010.815
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Use the instructions in GN 00210.800 to determine marital status.
B. When to request a legal opinion about a NMLR
Before you request a new legal opinion, check for an applicable precedent opinion in PR 05800.000. Refer the claim for a legal opinion according to instructions in GN 01010.815 if any of following is true: The NMLR was established in a state not listed in GN 00210.004D in this section. The NMLR was established in a foreign jurisdiction. Either member of the couple was previously in an NMLR, with someone other than his or her current spouse or NMLR partner, and there is no evidence that the prior NMLR was dissolved or terminated.
At the time of the NH’s death, the NH was not domiciled in the same state in which the relationship was established.
For a claim involving a living NH, the NH's domicile is outside of the state where the NMLR was established. A legal opinion about duration of the NMLR is required. For more information about the need for a legal opinion concerning duration of marriage and NMLRs, refer to GN 00210.004E.2. in this section.
C. Determining that the NMLR is recognized for benefit purposes
To determine if a claimant’s NMLR is recognized for benefit purposes, you must determine that the NMLR:
was valid in the state where it was established, and
qualifies as a marital relationship using the laws of the state of the NH’s domicile or would allow the claimant to inherit a spouse’s share of the NH's personal property should the NH have died without leaving a will.
When you are ready to process the claim as an award or denial, follow the instructions in GN 00210.020.
1. Was the NMLR valid in the state where it was established?
Follow these steps to determine the validity of the relationship using the laws of the state in which the relationship was established. For more information about how we determine family status, refer to GN 00305.001. 169 https://secure.ssa.gov/poms.nsf/lnx/0200210004 2/9 8/23/2017 SSA - POMS: GN 00210.004 - Non-Marital Legal Relationships (Such as Civil Unions and Domestic Partnerships) - 01/26/2015
Step Action
1 Is the claimant alleging an NMLR as the basis for entitlement to a benefit? If yes, code the NMAR and BMAR screens with code “3-Other ceremonial,” and go to step 2. If no, do not apply these instructions to evaluate the relationship. Refer to GN 00210.002 for policy related to establishing a marital relationship with the NH.
2 According to the chart in GN 00210.004D in this section, was the relationship established in a state listed under the column “State”? If yes, go to step 3. If no, check for an applicable precedent opinion in PR 05800.000. If no opinion exists, refer the claim for a legal opinion, according to instructions in GN 01010.815.
3 According to the chart in GN 00210.004D in this section, is the type of relationship alleged listed under the column “Relationship Type” for the state in which it was established? If yes, go to step 4. If no, check for an applicable precedent opinion in PR 05800.000. If no opinion exists, refer the claim for a legal opinion, according to instructions in GN 01010.815.
4 According to the chart in GN 00210.004D in this section, was the relationship established within the period shown in the column “Effective Date?” If yes, go to step 5. If no, check for an applicable precedent opinion in PR 05800.000. If no opinion exists, refer the claim for a legal opinion, according to instructions in GN 01010.815.
5 Obtain the information concerning the NMLR in the “Development” column and go to GN 00210.004C.2. in this subsection.
2. Does the NMLR qualify as a marital relationship using the laws of the state of the NH’s domicile?
We determine whether the NMLR qualifies as a marital relationship using the intestacy laws of the state of the NH’s domicile. If a claimant could inherit a spouse’s share of the NH's personal property should the NH die without leaving a will under state law, we will treat the couple’s relationship as a marital relationship for purposes of determining entitlement to benefits. For life cases, use the NH’s state of domicile at the time of the application or while the application was pending. For survivor benefits, use the NH’s state of domicile at the time of the NH’s death.
Step Action 170 https://secure.ssa.gov/poms.nsf/lnx/0200210004 3/9 8/23/2017 SSA - POMS: GN 00210.004 - Non-Marital Legal Relationships (Such as Civil Unions and Domestic Partnerships) - 01/26/2015
1 Determine the NH’s domicile using instructions in GN 00305.001. Document the place of domicile (city or town, and state) on the RPOC screen. NOTE: MCS screens do not capture the domicile of the NH. Do not rely on the mailing address or the "place of death" entry on the DECD screen. Go to step 2.
2 Is the NH alive? If yes, go to step 3. If no, go to step 4.
3 Is the NH domiciled in the same state in which the relationship was established when the claimant filed the application or at any time during which the claim was pending a final determination? If yes, go to step 5. If no, go to step 6.
4 At the time of the NH’s death, was he or she domiciled in the same state in which the relationship was established? If yes, go to step 5. If no, go to step 6.
5 According to the chart in GN 00210.004D in this section, does the state in which the relationship was established show a “YES” in the column “Inheritance Rights”? If yes, go to GN 00210.004E to determine duration in this section. If no, treat the claimant as unmarried for benefit purposes.
6 Refer the claim for a legal opinion using instructions in GN 01010.815. IMPORTANT: Check for an applicable precedent opinion in PR 05800.000 before requesting a new legal opinion.
D. State chart on NMLRs
Use the chart in this subsection to determine whether the listed state has a type of NMLR that conveys spousal inheritance rights.
1. State column
For purposes of this section, we define a state as: one of the 50 United States, the District of Columbia,
the U.S. Virgin Islands, 171 https://secure.ssa.gov/poms.nsf/lnx/0200210004 4/9 8/23/2017 SSA - POMS: GN 00210.004 - Non-Marital Legal Relationships (Such as Civil Unions and Domestic Partnerships) - 01/26/2015 Puerto Rico, Guam, American Samoa, or the Northern Mariana Islands.
2. Relationship type column
The “Relationship Type” column lists the only type(s) of NMLR that the state has established.
3. Inheritance rights column
The “Inheritance Rights” column shows a “yes” or “no” as to whether the NMLR meets our requirements for recognition as a marital relationship because it conveys spousal inheritance rights.
4. Development column
The “Development” column describes the information needed from the claimant to establish the relationship under state law.
5. Effective date column
The “Effective Date” column shows the date as of which the state began to permit the type of relationship or the period of time during which the type of relationship was permitted.
Relationship Inheritance State Type Rights Development Effective Date
AZ Domestic No N/A N/A partnership
AZ Civil union No N/A N/A
CA Domestic Yes Request the date the January 1, 2000 partnership domestic partnership was entered into.
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Relationship Inheritance State Type Rights Development Effective Date
CO Designated Yes, unless (1) Request the date the July 1, 2009 beneficiary specifically designated beneficiary excluded in agreement was signed, and the designated (2) ask if the right to inherit beneficiary as each other’s spouse was agreement. specifically excluded in the agreement. Accept the relationship if there is no exclusion of inheritance rights in the agreement. Do not accept the relationship if there is exclusion of inheritance rights in the agreement.
CO Civil union Yes Request the date the civil May 1, 2013 union was entered into.
CT Civil union Yes Request the date the civil October 1, 2005 union was entered into. through October 1, 2010
DE Civil union Yes Request the date the civil January 1, 2012 union was entered into. through July 1, 2014
DC Domestic Yes Request the date the January 26, partnership domestic partnership was 2006 registered.
HI Reciprocal Yes Request the date the June 1, 1997 beneficiary certificate of reciprocal through beneficiary was issued. December 2, 2013
HI Civil union Yes Request the date the civil January 1, 2012 union was entered into.
IL Civil union Yes Request the date the civil June 1, 2011 union was entered into.
173 https://secure.ssa.gov/poms.nsf/lnx/0200210004 6/9 8/23/2017 SSA - POMS: GN 00210.004 - Non-Marital Legal Relationships (Such as Civil Unions and Domestic Partnerships) - 01/26/2015
Relationship Inheritance State Type Rights Development Effective Date
ME Domestic Yes Request the date of the July 30, 2004 partnership declaration of domestic partnership.
MD Domestic No N/A N/A partnership
MN Domestic No N/A N/A partnership (municipal)
NV Domestic Yes Request the date the October 1, 2009 partnership domestic partnership was registered.
NH Civil union Yes Request the date the civil January 1, 2008 union was entered into. through December 31, 2009
NJ Domestic Yes Request the date of the July 10, 2004 partnership affidavit of domestic through Feb 19, partnership. 2007
NJ Civil union Yes Request the date the civil February 19, union was entered into. 2007
NY Domestic No N/A N/A Partnership
OR Domestic Yes Request the date of the February 4, partnership certificate of domestic 2008 partnership.
RI Civil union Yes Request the date the civil June 1, 2011 union was entered into. through August 1, 2013
VT Civil union Yes Request the date the civil July 1, 2000 union was entered into. through September 1, 2009
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Relationship Inheritance State Type Rights Development Effective Date
VT Reciprocal No N/A N/A beneficiary
WA Domestic Yes Request the date the July 22, 2007 partnership domestic partnership was registered.
WI Domestic Yes Request the date of the August 3, 2009 partnership declaration of domestic partnership.
E. Determining duration of the NMLR
When an NMLR qualifies as a marriage for benefit purposes, the “duration of marriage” requirement for the benefit must also be met by the NMLR. Do not use the date of the Windsor or Obergefell U.S. Supreme Court decision when determining duration of marriage. Use the date the couple entered into the NMLR.
1. Duration-of-marriage requirement
a. Spouse’s and surviving spouse’s benefits
A claimant for spouse’s benefits must meet a one-year duration-of-marriage requirement (refer to RS 00202.001). A claimant for surviving spouse’s benefits must meet a nine-month duration-of- marriage requirement (refer to GN 00305.100). For more information about duration-of-marriage requirements for spouse’s and surviving spouse’s benefits, refer to GN 00210.100 Marital Relationship Duration.
b. Child’s benefits based on stepchild relationship
The parent and stepparent of a child filing for stepchild benefits must meet the nine-month duration of marriage requirement if the NH is deceased, or the one-year duration requirement if the NH is living per GN 00306.230. NOTE: If the nine-month duration requirement is not met for surviving stepchild benefits, determine if an alternative or exception to the duration requirement exists. For more information, refer to GN 00305.100 Marital Relationship Duration.
2. When to request a legal opinion about duration
175 https://secure.ssa.gov/poms.nsf/lnx/0200210004 8/9 8/23/2017 SSA - POMS: GN 00210.004 - Non-Marital Legal Relationships (Such as Civil Unions and Domestic Partnerships) - 01/26/2015 If the NMLR, by itself, does not meet the duration requirement or any of the exceptions to the duration requirement, but the claimant and the NH entered into more than one NMLR or also entered into a marriage, an opinion may be needed. A combination of NMLRs, or combination of NMLRs and marriages with the NH, may in total, meet the duration of marriage requirement without obtaining a legal opinion if (1) the relationships all occurred in the same state and (2) the relationships were consecutive without any gap in time between the relationships. If no applicable precedent opinion exists in PR 05800.000 and the claimant alleges any of the following, request a legal opinion about duration using instructions in GN 01010.815:
The claimant and NH’s relationship began as an NMLR and later converted to a marriage. The legal opinion should address the duration of the NMLR, the date of the marriage, and the duration of the marriage; The claimant had more than one NMLR with the NH which may, in total, meet the duration of marriage requirement, and the relationships were not all in the same state; or
The claimant and the NH had a combination of NMLR and marriage, which may, in total, meet the duration of marriage requirement.
To Link to this section - Use this URL: GN 00210.004 - Non-Marital Legal Relationships (Such as Civil Unions and http://policy.ssa.gov/poms.nsf/lnx/0200210004 Domestic Partnerships) - 01/26/2015 Batch run: 02/10/2016 Rev:02/10/2016
176 https://secure.ssa.gov/poms.nsf/lnx/0200210004 9/9 8/23/2017 SSA - POMS: GN 00306.001 - Determining Status as Child - 08/30/2016 Social Security
Program Operations Manual System (POMS)
TN 29 (10-05) GN 00306.001 Determining Status as Child
Citations: Act - Secs. 202(d) , 216(e) , 216(h)(2) , 216(h)(3) ; Regulations - Secs. 404.350 - 404.366
A. Introduction
A child may qualify as the NH's child for purposes of entitlement to child's insurance benefits under one of several provisions of the Social Security Act. This subchapter sets forth the categories of children and the relationship and dependency requirements for each. Unless otherwise indicated, the term “child,” for purposes of relationship, refers to:
Applicants under 18;
Childhood disability applicants 18 or over; and Applicants who are full-time elementary or secondary students under age 19.
B. Policy - Chart
For quick reference, this chart shows the categories of children for whom benefits are provided, the dependency test for each, and the POMS cross-reference. Do not attempt to work complex child relationship claims without referring to the appropriate POMS section shown in the chart.
Category Dependency POMS Reference
Natural Legitimate Child Deemed* GN 00306.010
Child of Void or Voidable Deemed* GN 00306.030 Marriage
Legitimated Child Deemed* GN 00306.050
Illegitimate Child With Deemed* GN 00306.055 Inheritance Rights
Child of Invalid Ceremonial Deemed* GN 00306.090 Marriage 177 https://secure.ssa.gov/poms.nsf/lnx/0200306001 1/6 8/23/2017 SSA - POMS: GN 00306.001 - Determining Status as Child - 08/30/2016
Category Dependency POMS Reference
216(h)(3) Child Deemed* GN 00306.100
Legally Adopted Child Depends on date of GN 00306.135 adoption*
Equitably Adopted Child Living With or Contributing GN 00306.175
Stepchild One-Half Support** GN 00306.230***
Grandchild/Stepgrandchild Living With and One-Half GN 00306.235 Support
*If child has been legally adopted by someone other than NH, dependency must be established. (See GN 00306.165) **For entitlements for months before 07/96, the dependency requirement was living with or one- half support. *** See GN 00210.505 for instructions if the NH is the alleged stepparent based on a same-sex marriage or non-marital legal relationship.
C. Policy - Status of child
1. Status under State or Federal law
a. State law
In determining a child's relationship to the NH, SSA applies the law of the appropriate State to determine whether the child would be considered his/her child for purposes of the distribution of intestate personal property. State laws concerning presumption of legitimacy and the Lord Mansfield Rule apply in determining the status of a child born during wedlock. State law may also determine the validity of an adoption or determine whether an adopted child still has inheritance rights in his/her natural parent's estate.
b. Federal law
In some situations a child may be deemed under Federal law to have the required status, regardless of his/her status under State law. (See GN 00306.090 - GN 00306.130 concerning entitlement as a child of an invalid ceremonial marriage and a section 216(h)(3) child (deemed child).)
c. Status of child conceived after NH's death
A child conceived by artificial means after the NH's death cannot be entitled under the Federal law provisions of the Act (section 216(h)(3)). Such a child can only be entitled if he or she has inheritance
178 https://secure.ssa.gov/poms.nsf/lnx/0200306001 2/6 8/23/2017 SSA - POMS: GN 00306.001 - Determining Status as Child - 08/30/2016 rights under applicable State intestacy law. Submit all cases involving a child conceived by artificial means after the NH's death to the RCC for an opinion per GN 01010.815 ff. CAUTION: Although some State law entries in GN 00306.405 - GN 00306.680 include State laws for children conceived after the NH’s death, and provide development guidelines for such cases, all cases involving such children require an RCC opinion. NOTE: The Hart v. Shalala case was settled prior to a judicial decision and is not a precedent for payment of benefits to children conceived after the NH's death.
d. Status of child of a same-sex marriage or other relationship
If the number holder (NH) is the biological or adoptive parent of a child, no opinion is necessary and child benefits can be awarded on that NH’s record. If the NH alleges that the child is his or her stepchild based on a same-sex marriage or non-marital legal relationship (NMLR), see GN 00210.505. Before you request a new legal opinion, check for an applicable precedent opinion in PR 00905.000 that may address the facts relevant to the claim. If no applicable precedent opinion exists, and the NH is not the biological or adoptive parent and the parental relationship alleged is based on a same-sex marriage or NMLR, refer the case for a legal opinion using the instructions in GN 01010.815. Direct all program–related and technical questions to your RO support staff or PSC OA staff. RO support staff or PSC OA staff may refer questions or problems to their Central Office contacts.
2. Which State law applies
a. NH domiciled in State
In a life case, SSA applies the law of the State where the NH is domiciled when the child files. See GN 00306.075B. for how SSA determines which version of State law to apply. In a death case, SSA applies the law of the State where the NH was domiciled at the time of death. See GN 00306.075B. for how SSA determines which version of State law to apply. (See GN 00305.001 for a definition and more detailed discussion of domicile.)
b. NH domiciled in jurisdiction not defined in the Act as a State
The law applied by the courts of the District of Columbia determines the child's status. (See GN 00305.001B.1. for a definition of “State.”) NOTE: Prior to 4/7/77, to determine whether a child would be legitimate or legitimated, D.C. law would refer to the law of the purported father's domicile at the time of the child's birth or at the time of a subsequent legitimating act. Effective 4/7/77, D.C. law would apply.
c. Change of domicile
See GN 00306.005. 179 https://secure.ssa.gov/poms.nsf/lnx/0200306001 3/6 8/23/2017 SSA - POMS: GN 00306.001 - Determining Status as Child - 08/30/2016 3. Applicability of State court decisions
In determining child relationship under State law where the evidence includes a State court decision on the issue, SSA is not necessarily bound by the court decision. See SSR 83-37C for the applicable criteria, which were set forth in Gray v. Richardson.
4. Parent status
Unless otherwise indicated in this subchapter, if a son or daughter is a “child” for purposes of the SS Act, the father or mother is a “parent” for purposes of that law.
5. Constitutionality of State intestacy law raised at initial claim or reconsideration level
During the development of a child's claim or upon reconsideration, if the child claimant or individual acting on behalf of the child questions the constitutionality of SSA's interpretation of State intestacy law (as shown in the applicable State law entry in GN 00306.405 - GN 00306.680), the adjudicator or reconsideration reviewer should forward the claim for an opinion by the RCC per GN 01010.815 ff.
6. Termination of NH’s parental rights
When the NH’s parental rights with respect to a child have been terminated, and the child has not been adopted by someone else, the child does not necessarily lose inheritance rights with respect to the NH under State law. This issue is relevant to initial entitlements or reentitlements; termination of parental rights and/or loss of inheritance rights are not terminating events for child’s benefits. In the absence of a legal precedent opinion, the adjudicator should submit the case to the RCC per GN 01010.815 ff. (See GN 00306.165 ff. if the child was adopted by someone other than the NH during the NH’s lifetime.)
D. Procedure - FO development
Follow these guidelines in developing child relationship:
You must explore all possibilities of entitlement before disallowing a child's claim because the relationship requirements are not met. Pay special attention to the possibility of entitlement as a legitimated child or an illegitimate child with inheritance rights under State law (GN 00306.050 - GN 00306.085; GN 00306.400 - GN 00306.680). You may develop the child's relationship under any applicable provisions consecutively or concurrently (e.g., development under State law and section 216(h)(3)). In general, follow the line of development that will permit payment as soon as possible. However, pursue any earlier possible entitlement date once the child is on the rolls.
180 https://secure.ssa.gov/poms.nsf/lnx/0200306001 4/6 8/23/2017 SSA - POMS: GN 00306.001 - Determining Status as Child - 08/30/2016 As needed, use the State law digests in GN 00306.400 - GN 00306.680 and elsewhere in this subchapter. Use the rules in GN 00306.001B. to determine which State law applies, unless otherwise indicated. When in doubt as to which State law applies, submit the question to the RCC under GN 01010.815. See GN 00306.005 for change of domicile situations. Use DOTEL to check existing legal precedents when necessary (GN 01010.815). If you submit the claim to the PC or RO for a legal opinion, exclude the claim from DOFA using code RV03 (e.g., in MCS cases, enter “1” as the non-DOFA reason on the DECI screen). (See GN 01010.027C.2.) If necessary, help the claimant obtain evidence (see GN 00301.230 - GN 00301.305 and GN 01010.410). See GN 01010.410 for follow-up and closeout procedures.
E. Procedure - FO documentation of disallowances
1. Code 32 Disallowances
Include a Form SSA-2519 (Child Relationship Statement) in file. See GN 00306.300 for an exhibit of this form.
Help the claimant complete the form whenever possible.
Follow up on any information listed on the SSA-2519 that may have a bearing on the child's entitlement, and document the results per GN 00306.001E.1.d. Include the information discussed in GN 00306.001E.2. on the MCS RPOC screen (or in item 5 of the SSA-2519 in non-MCS cases).
2. Cases disallowed under Codes 33-35
In these or any other disallowances in which relationship is a factor, including those in which no SSA-3428-U2 is prepared (SM 00380.001B.), record the following information on the MCS RPOC screen (or on an RC in non-MCS cases):
What specific means of meeting the relationship requirement you developed;
The specific kinds of evidence you requested; What efforts were made to obtain it; and Why it was unobtainable.
If evidence is submitted that does not meet the requirements for relationship, explain why the evidence does not meet the criteria.
3. Notices 181 https://secure.ssa.gov/poms.nsf/lnx/0200306001 5/6 8/23/2017 SSA - POMS: GN 00306.001 - Determining Status as Child - 08/30/2016 Designate notice language as appropriate.
To Link to this section - Use this URL: GN 00306.001 - Determining Status as Child - 08/30/2016 http://policy.ssa.gov/poms.nsf/lnx/0200306001 Batch run: 08/30/2016 Rev:08/30/2016
182 https://secure.ssa.gov/poms.nsf/lnx/0200306001 6/6 8/23/2017 Treasury Announces Proposed Regulations Implementing the Supreme Court’s Same-Sex Marriage Decision for Federal Tax Purposes
Press Center
Treasury Announces Proposed Regulations Implementing the Supreme Court’s Same-Sex Marriage Decision for Federal Tax Purposes
10/21/2015
Regulations Would Clarify and Strengthen Previous Guidance
WASHINGTON — The U.S. Department of the Treasury and the Internal Revenue Service (IRS) today announced proposed regulations providing that a marriage of two individuals, whether of the same sex or the opposite sex, will be recognized for federal tax purposes if that marriage is recognized by any state, possession, or territory of the United States. The proposed regulations would also interpret the terms “husband” and “wife” to include same-sex spouses as well as opposite- sex spouses. These regulations implement the Supreme Court’s decision in Obergefell v. Hodges.
“The proposed regulations confirm that terms in the federal tax code relating to marriage should be interpreted to include same-sex spouses as well as opposite- sex spouses, ensuring that all are treated equally under the law,” said Secretary Lew. “These regulations provide additional clarity on how the federal government will treat same-sex couples for tax purposes in light of the Supreme Court’s historic decision on same-sex marriage.”
Today’s announcement would clarify and strengthen guidance provided in a 2013 IRS revenue ruling implementing the Supreme Court’s decision in United States v. Windsor. That revenue ruling said that same-sex couples legally married in jurisdictions that authorize same-sex marriage will be treated as married for federal tax purposes. The proposed regulations update these rules to reflect that same-sex couples can now marry in all states and that all states will recognize these marriages.
The proposed regulations will apply to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA, and claiming the earned income tax credit or child tax credit.
The proposed regulations would not treat registered domestic partnerships, civil unions, or similar relationships not denominated as marriage under state law as marriage for federal tax purposes. This rule protects individuals who have specifically chosen to enter into a state law registered domestic partnership, civil union, or similar relationship rather than a marriage, because they can retain their status as single for federal tax purposes.
Since publication of the 2013 revenue ruling, legally married couples generally must file their federal income tax return using either the “married filing jointly” or “married filing separately” filing status.
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183 https://www.treasury.gov/press-center/press-releases/Pages/jl0227.aspx 1/2 8/23/2017 Treasury Announces Proposed Regulations Implementing the Supreme Court’s Same-Sex Marriage Decision for Federal Tax Purposes
184 https://www.treasury.gov/press-center/press-releases/Pages/jl0227.aspx 2/2
Dissolving Civil Unions and Domestic Partnerships for Couples Who Live in Non-Recognition States: A Guide For Attorneys
BACKGROUND
As with other couples, some same-sex couples break up and decide to divorce. If they are married, in a civil union or domestic partnership, or a combination of these unions, a court must end their legal union. Now that all U.S. states must recognize marriages between same-sex spouses, separated spouses can legally end their marriages no matter where they live. However, many same-sex couples who are in civil unions or registered domestic partnerships may not be able to dissolve these unions if their home state does not currently recognize their union.
It is very important for separated couples to end all of their legal unions through a court proceeding to ensure that their legal union has ended and they have ended their legal responsibilities to each other. Being unable to dissolve a civil union or domestic partnership leads to many legal challenges for these couples. First, they continue to be recognized as being in a civil union or registered domestic partnership in many states, so if they travel in or move to these states, their union will be recognized in those states, where they will continue to have the same rights and responsibilities of married spouses. For example, if a couple in a civil union who is separated lives in Ohio and one of them is in an accident while traveling in Vermont, his or her ex-partner may be the only one who is able to make medical decisions for him or her. Second, the partners will be unable to marry or enter a union with a new partner: in those states that recognize the first union, their second marriage or union will be void and they could even be subject to criminal bigamy charges. Finally, the law is constantly changing and if the state where
185 they live begins recognizing their other union, they will suddenly have all the rights and responsibilities of marriage in their home state.1
In recognition of this problem, a number of jurisdictions have passed laws allowing courts to take jurisdiction, under certain circumstances, over dissolution proceedings for non-resident same-sex couples who have entered into a civil union or registered domestic partnership in that state. This publication outlines those laws for couples who entered into a civil union or registered domestic partnership in California, Colorado, Delaware, Hawaii, Illinois, Oregon, or Vermont and now live elsewhere. For other couples who cannot dissolve their unions in the state where they live, there may be creative solutions to end their relationships. Please contact NCLR for technical assistance and more information.
Note that some jurisdictions automatically converted civil unions or domestic partnerships into marriages as of a certain date. Couples who entered civil unions or domestic partnerships in those states are now married and should be able to divorce in their home state because every state should recognize that marriage. For information about which states recognize civil unions, domestic partnerships, and other unions between same-sex couples, and which states have converted civil unions or domestic partnerships into marriages, see Marriage, Domestic Partnerships, and Civil Unions: An Overview of Relationship Recognition for Same-Sex Couples Within the United States.
IMPORTANT NOTE: Same-sex couples often have more than one recognized relationship status,2 and when they separate, it is very important to dissolve all these statuses. Dissolving one status does not automatically dissolve the others unless it is included in the order. Depending on the circumstances, a court may be able to dissolve marriages, registered domestic partnerships, and civil unions in one proceeding. Other relationship statuses, such as limited domestic partnerships, reciprocal beneficiaries, and designated beneficiaries, should also be terminated, but typically only require filing a form with the appropriate state or local agency.
Last updated July 2015.
1 If they meet the requirements that would legally recognize them as separated in their home state, they may cease to accrue property rights to each other as of the date of separation, but other legal issues may still remain.
2 For example, California expressly allows couples to be registered domestic partners and married to each other. Cal. Fam. Code § 297(b)(1).
2 186 STATES THAT ALLOW NON-RESIDENT SAME-SEX COUPLES TO DIVORCE
I. California (Registered Domestic Partnership)
Couples residing outside California may dissolve their California registered domestic partnership, which has all the rights and responsibilities of a marriage under California law,3 in a California court. When a couple enters into a registered domestic partnership in California, they consent to California courts’ jurisdiction over their registered domestic partnership even if neither partner resides in the state.4
II. Colorado (Civil Union)
In general, Colorado requires at least one spouse or civil union partner to have been domiciled in Colorado for ninety-one days prior to filing for divorce.5 However, any person who enters into a civil union in Colorado consents to the jurisdiction of the Colorado courts for the purpose of any action relating to the civil union (such as dissolution), even if one or both of the parties to the civil union no longer lives in Colorado.6
III. Hawaii (Civil Union)
In general, Hawaii requires that one civil union partner have been domiciled or been physically present in the state for at least six months prior to applying for a divorce.7 However, where a couple entered into a civil union in Hawaii, and neither partner lives in a jurisdiction that will
3 Cal. Fam. Code § 297.5(a) (“Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.”).
4 Cal. Fam. Code § 299(d) (“. . . in accordance with the consent acknowledged by domestic partners in the Declaration of Domestic Partnership form, proceedings for dissolution, nullity, or legal separation of a domestic partnership registered in this state may be filed in the superior courts of this state even if neither domestic partner is a resident of, or maintains a domicile in, the state at the time the proceedings are filed.”). See also Cal. Fam. Code § 2320(b).
5 C.R.S.A. § 14-10-106.
6 C.R.S.A. § 14-15-115 (“(1) Any person who enters into a civil union in Colorado consents to the jurisdiction of the courts of Colorado for the purpose of any action relating to a civil union even if one or both parties cease to reside in this state.(2) The district court has jurisdiction over all proceedings relating to the dissolution of a civil union, legal separation of a civil union, or the declaration of invalidity of a civil union, regardless of the jurisdiction where the civil union was entered into. The court shall follow the procedures specified in article 10 of this title, including the same domicile requirements for a dissolution, legal separation, or declaration of invalidity for such proceedings.(3) A proceeding relating to the dissolution of a civil union, legal separation of a civil union, or the declaration of invalidity of a civil union may be held in the county where the petitioner or respondent resides or where the parties' civil union certificate was issued; except that process may be directed to any county in the state. A respondent's objection to venue is waived if not made within such time as the respondent's response is due.”).
7 Haw. Rev. Stat. § 580-1(a)
3 187 divorce them because their civil union is not recognized there, they may divorce in Hawaii.8 Couples must commence a divorce action of this kind in the circuit where the civil union was solemnized.9 NOTE: If a couple entered into a civil union or reciprocal beneficiary relationship, and subsequently marry each other in Hawaii, that marriage dissolves the earlier civil union or reciprocal beneficiary relationship.10
IV. Illinois (Marriage and Civil Union)
In general, Illinois requires that one spouse be a resident of the state for at least 90 days prior to petitioning for dissolution of a marriage.11 When partners enter into a civil union in Illinois, however, they consent to Illinois courts’ jurisdiction over any action relating to the civil union even if neither partner resides in the state.12
V. Oregon (Registered Domestic Partnership only)
In general, Oregon requires that one spouse be a resident of the state at the time a petition for dissolution of marriage is filed if the marriage was entered in Oregon, or a resident for at least six months if the marriage was entered elsewhere.13 However, when a couple enters into a registered domestic partnership in Oregon, they consent to Oregon courts’ jurisdiction over a dissolution of their registered domestic partnership even if they both no longer reside in the state.14 If both parties no longer reside in Oregon, the petition for dissolution of the registered domestic partnership may be filed in the county where either the petitioner or the respondent last resided.15 Registered domestic partnerships have all the rights and responsibilities of marriage under Oregon law.16
8 S.B. 1, 27th Leg., 2nd Sp. Sess. (2013) to be codified at Haw. Rev. Stat. § 580-1(b) 9 S.B. 1, 27th Leg., 2nd Sp. Sess. (2013) to be codified at Haw. Rev. Stat. § 580-1(c) 10 S.B. 1, 27th Leg., 2nd Sp. Sess. (2013) to be codified at Haw. Rev. Stat. § 572-A(b) 11 750 ILCS 5/401(a).
12 “Any person who enters into a civil union in Illinois consents to the jurisdiction of the courts of Illinois for the purpose of any action relating to a civil union even if one or both parties cease to reside in this State. . . .” 750 ILCS 75/45.
13 Or. Rev. Stat. § 107.075.
14 Or. Rev. Stat. § 106.325(4) (“Each individual signing a Declaration of Domestic Partnership consents to the jurisdiction of the circuit courts of Oregon for the purpose of an action to obtain a judgment of dissolution or annulment of the domestic partnership, for legal separation of the partners in the domestic partnership or for any other proceeding related to the partners’ rights and obligations, even if one or both partners cease to reside in, or to maintain a domicile in, this state.”).
15 Id. (“…a petition for dissolution or annulment of the domestic partnership, for legal separation of the partners in the domestic partnership or for any other proceeding related to the partners’ rights and obligations may be filed in the county in which either the petitioner or respondent last resided.”)
16 Or. Rev. Stat. § 106.340.
4 188 VI. Vermont (Civil Union)
Non-resident civil union partners may dissolve their civil union in Vermont if 1) they entered a civil union in Vermont, 2) neither partner resides in a state which will allow them to dissolve their union, 3) the couple has no minor children of the civil union, 4) neither partner has a protective order against the other, and 5) the parties file a stipulation that resolves all issues in the dissolution and contains all the statutorily required elements.17 The complaint must be filed in the county where the civil union certificate was filed.18
17 Vt. Stat. Ann. tit. 15, § 1206(b) states: … a complaint for civil union dissolution may be filed in the family division of superior court in the county in which the civil union certificate was filed by parties who are not residents of Vermont provided all of the following criteria are met: (1) The civil union of the parties was established in Vermont. (2) Neither party's state of legal residence recognizes the couple's Vermont civil union for purposes of dissolution. (3) There are no minor children who were born or adopted during the civil union. (4) The parties file a stipulation together with a complaint that resolves all issues in the dissolution action. The stipulation shall be signed by both parties and shall include the following terms: (A) An agreement that the terms and conditions of the stipulation may be incorporated into a final order of dissolution. (B) The facts upon which the court may base a decree of dissolution of a civil union and that bring the matter before the court's jurisdiction. (C) An acknowledgment that: (i) each party understands that if he or she wishes to litigate any issue related to the dissolution before a Vermont court, one of the parties must meet the residency requirement set forth in section 592 of this title. (ii) neither party is the subject of an abuse prevention order in a proceeding between the parties. (iii) there are no minor children who were born or adopted during the civil union. (iv) neither party's state of legal residence recognizes the couple's Vermont civil union for purposes of dissolution. (v) each party has entered into the stipulation freely and voluntarily. (vi) the parties have exchanged all financial information, including income, assets, and liabilities.
18 Id.
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Transgender Family Law in the U.S.: A fact sheet for transgender spouses, partners, parents, and youth
MARRIAGE, CIVIL UNIONS, AND REGISTERED DOMESTIC PARTNERSHIPS
For transgender people, determining whether you can marry, enter into a civil union, or register as domestic partners can be complicated. The laws addressing transgender people are often unclear, and legal family relationships may depend on your legal gender.
IMPORTANT: It is important for all couples to complete documents that can help protect their families. This includes: creating a will, trust, or other estate plan and completing advanced health care directives.
1. Who can marry? Any two people can now marry regardless of sex throughout the U.S. and its territories. In addition, a growing number of tribal nations also allow same‐sex couples to marry. You can find information about this in our fact sheet summarizing relationship recognition for same‐sex couples available at www.nclrights.org/RRFactSheet
For more information about relationship recognition for same‐sex couples, see Marriage, Domestic Partnerships, and Civil Unions: An Overview of Relationship Recognition for Same‐Sex Couples in the United States, available at www.nclrights.org.
2. Who can enter into a civil union or register as domestic partners? As of June 2015, Colorado, Hawaii, Illinois, and New Jersey allow same‐sex couples to enter civil unions, and California, Oregon, Nevada, and the District of Columbia offer domestic partnerships that include nearly all the rights and responsibilities of marriage. Some of these relationship statuses are open to same‐sex and different‐sex couples, but some are limited to same‐sex couples.
NOTE: Washington state used to offer registered domestic partnerships to same‐sex couples, but now allows same‐sex couples to marry and no longer allows couples to enter into registered domestic partnerships unless one or both partners are over age 62. If you live in,
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190 plan to move to, or entered into a registered domestic partnership in Washington state, please consult our publication linked to above for more information about registered domestic partnerships there. You may need to take additional action to protect recognition of your relationship.
3. We are a different‐sex couple and one of us is transgender. Can we get married? As mentioned above, any two people can get married in the U.S. and its territories, regardless of their gender. However, some other countries may not recognize marriages entered by same‐ sex couples, so it may still be useful to take as many steps as possible to transition before marrying a different‐sex partner.
IMPORTANT: Wherever you marry, you may want to take as many steps as possible to transition before marrying a different‐sex partner. If possible, get a court ordered gender change and amend your birth certificate. Before marrying, we recommend that you and your intended spouse enter into a memorandum of understanding (MOU). This should include a statement that the non‐transgender spouse is aware that the other spouse is transgender.
As a practical matter, transgender spouses may face some difficulties having their marriages recognized, even if they should be. It is important to fill out advanced healthcare directives and keep them with you when traveling especially outside the U.S.. For a blank advanced directive for your state, see: www.caringinfo.org.
4. My spouse and I married as a different‐sex couple, but one of us transitioned after we married. Are we still married? Changing your gender after marriage does not invalidate your marriage. Once a couple validly marries, their marriage stays valid. All states and the federal government should continue to recognize your marriage even if one of you later legally changes your gender.
5. Will the federal government recognize my relationship? If you are validly married, you will be fully recognized by the federal government as married for all purposes. With some exceptions, the federal government may not recognize civil unions or registered domestic partnerships.
6. One of us is not a U.S. citizen. If we get married, can we stay together in the U.S.? If you and your spouse marry, the U.S. citizen spouse should be able to sponsor the non‐U.S. citizen spouse if you are otherwise eligible for spousal sponsorship. This is true for any two people who are married, regardless of sex.
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191 IMPORTANT: Immigration based on marriage can be complicated. We strongly encourage you to contact NCLR and speak with an attorney before getting married and/or seeking family‐ based immigration status through your marriage.
7. My partner and I entered into a civil union or registered as domestic partners (RDP) as a same‐sex couple and one of us later transitioned. Is our RDP/civil union still valid? Transition after registering doesn’t affect your RDP or civil union. If you also want to marry each other, you may not need to end your RDP or civil union first before you marry.
8. My partner and I are a same‐sex couple, and one of us is transgender. Can we enter into a civil union or register as domestic partners? Some states allow any two people regardless of gender to enter into a civil union or domestic partnership (D.C., Hawaii, Illinois, Nevada). If you must be a same‐sex couple to enter a civil union or registered domestic partnership, if you are a same‐sex couple and one of you has transitioned, you may be able to enter into a civil union or register as domestic partners. You should take as many steps as possible to transition before registering or entering into a civil union. If possible, you should get a court ordered gender change and amend your birth certificate.
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192 PARENTING
1. Am I legally recognized as my child’s parent? Transgender people can become parents in many different ways. You could be legally recognized as a parent if: You are a biological parent. You have adopted your child. You and your spouse or partner had a child together while you were married, registered as domestic partners, or in a civil union AND your state recognizes your relationship. You may be a legal parent in some states based on holding yourself out to the world as your child’s parent, and/or acting as a parent.
Parentage law is complicated. If you have questions about whether you are legally recognized as a parent, we strongly encourage you to speak to an attorney who is experienced with transgender family law.
2. How can I protect my relationship with my child if I am not a biological or adoptive parent? We strongly recommend that all non‐biological and non‐adoptive parents get an adoption or parentage judgment if possible. Otherwise, you may not be recognized as a parent in another state, even if you would be in the state where you live.
IMPORTANT: It is not enough to have your name on your child’s birth certificate. If you are not a biological or adoptive parent, it is important to have an adoption or parentage judgment from a court.
3. Will I be able to have custody of my child if my spouse/partner and I separate? In most states, a transgender person who is a legal parent should not be denied custody or visitation simply because of his or her gender identity or expression. However, many courts are unfamiliar with transgender parents. It is very important to advocate for your rights as a parent from the start, including presenting expert testimony on the irrelevance of transgender status to parenting. Once there is a court order denying or putting restrictions on custody or visitation, it can be very difficult to change later.
If you are not a legal parent in your state, you may still be able to seek custody or visitation if you have acted as a parent and have a parent‐child bond. Many states recognize that, where a person who is not a legal parent participated in the caretaking of the child and maintained a parent‐like relationship with the child, he or she has standing (meaning the right to go to court)
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193 to ask a court for visitation or custody. Such states have recognized this right to seek visitation or custody under an “equitable parent,” “parent by estoppel,” “de facto parent,” “psychological parent,” or “in loco parentis” theory. Only a small number of states have said that a non‐legal parent has no standing to seek custody or visitation with the child of his or her former partner, even when he or she has been an equally contributing caretaker of the child.
4. Can I be a foster parent? Transgender people can be foster parents. A few states explicitly prohibit discrimination against transgender foster parents. Prospective transgender foster parents may face discrimination in any state.
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194 TRANSGENDER CHILDREN AND YOUTH
1. We have a transgender or gender non‐conforming (GNC) child. What should we do? It is very important to seek medical and mental health services for your child from practitioners who are experienced with treating and supporting transgender and GNC children. Gender Spectrum provides information and supportive services to families with transgender and GNC children, and may be able to help you find services in your area: www.genderspectrum.org.
2. Can we change our child’s name and gender at school? Can we legally change our child’s name? It is important to approach your child’s school early on to discuss your child’s need to be referred to by his or her chosen name and pronoun in school. Public schools, including charter schools, or private schools that receive federal funding, must respect a transgender child’s gender, must take steps to protect them from harassment, and must allow students to use sex‐ segregated facilities consistent with their gender identity. This includes ensuring that the records system accurately reflects your child’s chosen name and correct gender marker.
With consent from both parents, it is generally possible in all states to change a minor’s name legally through the court. It may be possible in some states to legally change a minor’s gender.
IMPORTANT: You and your co‐parent may not always agree on how to support your transgender or GNC child. It is very important to do whatever you can to come to an agreement together without going to court. Courts are very unfamiliar with transgender children. If you and your co‐parent disagree, you should proceed cautiously and only on the advice of a doctor or therapist before allowing your child to live as a different gender.
3. What are the rights of transgender youth in foster care? Youth in the foster care system have the right to express their gender. They can request a transfer if their foster family is not supportive. The staff at any facility should work with transgender youth to make sure that their identity is respected.
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195 If you have questions about transgender family law, please contact: National Center for Lesbian Rights Transgender Law Center Helpline: 800.528.6257 Main line: 877.847.1278 Email: [email protected] Email: [email protected] Website: www.nclrights.org Website: www.transgenderlawcenter.org
This fact sheet was adapted from a fact sheet developed by the Transgender Law Center (TLC), and is designed to answer basic legal questions related to marriage, domestic partnerships, parenting, foster care, and youth issues in the U.S.. This fact sheet is not intended to be legal advice. The law is always evolving, and its application is dependent on specific facts in each situation. You should consult with an attorney in your state about how the law will apply to you and what options you have in your particular situation.
Last updated: June 2015
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