Non-Bio Mom Not De Facto in Maryland

First, let’s revisit some good news about parental rights: Gay and Lesbian Advocates and Defenders (GLAD) is the New England LGBT legal organization best known for its leading role in achieving marriage equality for same-sex couples in Massachusetts. Mary Bonauto, Civil Rights Project Director for GLAD, was also lead counsel in Goodridge v. Dept. of Public Health, the case that established the right of same-sex couples to marry. Bonauto had a distinguished career even before Goodridge, however. In a 1993 case, Adoption of Susan, Bonauto argued before the Massachusetts Supreme Judicial Court and won the right for the unmarried partner of a child’s biological parent to become a legal parent through second-parent adoption without the biological parent giving up his or her rights. The plaintiffs went on to become plaintiffs in Goodridge, and Bonauto won a case last year establishing second-parent adoptions in Maine as well.

Adoption of Susan is GLAD’s “Case of the Month” in celebration of the organization’s 30th anniversary. Their Web site has more of the story (including a podcast), along with links to other resources on adoption by same-sex couples in Massachusetts and elsewhere.

On a less happy note, the Maryland Court of Appeals today ruled that “after the end of an 18 year relationship that included raising a five year old child together, the mom whose name was on the child’s adoption decree could exclude the mom whose name wasn’t on the decree from the child’s life. The court said that a ‘de facto’ parent has no more ability that a grandparent, babysitter, teacher . . . or stranger to receive custody or visitation rights,” as Nancy Polikoff wrote today at Bilerico.

The Maryland Daily Record explains it this way:

Maryland does not recognize the concept of de facto parenthood, which would allow a non-legal parent to win visitation with a child over a parent’s objection simply by proving that it would be in the child’s best interest.

Someone who performs parental functions for a child with the consent of the child’s parent is considered a third party and can only win access by showing that the legal parent is unfit or that there are exceptional circumstances, the court held.

Now the case goes back to the trial judge with instructions to find whether “exceptional circumstances” apply here.

The coverage does not explain why the non-bio mom did not do a second-parent adoption, when trial courts in Maryland have granted them to other lesbian parents. Maybe they didn’t have the money; maybe they didn’t live in an area that had granted them, and the ten thousand tasks of everyday life with a preschooler made it inconvenient to try and do one elsewhere. I don’t know. Whatever the case, other couples should take heed. (And yes, the state should follow the example of California, Massachusetts, and New Jersey, which will recognize both mothers without an adoption, but I somehow don’t think the Old Line State will do that soon.)

The ruling could impact a similar case now awaiting action by the selfsame Court of Appeals. A lawyer for the biological mother in that case says he expects the Court of Appeals to direct the trial court to review his client’s case in light of today’s ruling.

Fortunately, as Polikoff points out, most states, like Massachusetts, are “recognizing the reality of a child’s family.” That’s little comfort for one mom in Maryland, though, who must be missing her daughter tonight.

2 thoughts on “Non-Bio Mom Not De Facto in Maryland”

  1. While you point out that de facto parenthood is recognized in Massachusetts I just wanted to add a cautionary statement. After A.H. v. M.P., in Massachusetts if the de facto parent does not follow through with the co-adoption they are at a very high risk of still being treated as a third party and denied access to their children. Do not risk it. Co-adopt as soon as possible as failure to do so often results in the non-biological parent being prevented from seeing her child. Massachusetts has no where near the protections of California law when it comes to parental rights. You must formalize your relationship with marriage and co-adoption for your family structure to really be safe.

  2. Good point–this is what the National Center for Lesbian Rights has advised, too. Aside from any Massachusetts ramifications, without an adoption, families could face difficulties when traveling elsewhere–and the child would not receive the non-bio mom’s federal Social Security benefits if the mom dies when the child is still a minor.

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