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Court denies visitation to ex-partner

The Baltimore Sun

In a decision with broad ramifications for nontraditional families, Maryland's highest court ruled yesterday in favor of an adoptive mother who is seeking to deny her former partner visitation rights to a child that both had cared for during their relationship.

The case deals with a lesbian couple, but it could affect step-parents and people in other kinds of relationships who have taken on parental roles but do not have biological or adoptive ties to a child. The Maryland Court of Appeals said that "de facto parenthood" is not recognized in Maryland and found that "exceptional" circumstances or a finding that a parent is unfit would be needed to overcome a legal parent's right to the care, control and custody of a child.

In response to the ruling, advocacy groups said they plan to seek legislation next year in Maryland's General Assembly to recognize de facto parents. Meanwhile, family court lawyers predicted that people who have won visitation based on a previous lower-court decision might now have to go back to court and face a tougher legal fight.

"This decision leaves thousands of children and families unnecessarily vulnerable and will undoubtedly end up denying children the love and support of a parent who has been a significant part of their life," said David Rocah, a lawyer with the American Civil Liberties Union of Maryland, who filed a friend-of-the-court brief siding with the partner. "The Court of Appeals has gone against the modern trend, though it's certainly not alone in this regard."

Courts nationwide have been wrestling with cases that have the potential to legally redefine family ties outside of traditional marriage. State by state, the laws governing families can vary greatly, and court cases are constantly changing the legal landscape as gay and lesbian couples and unmarried heterosexual households increasingly have children and petition courts to settle disputes.

Groups that promote traditional marriage have argued that courts should not micromanage parents' decisions regarding their children. Mathew Staver, the founder and chairman of Liberty Counsel, a conservative national legal group that has filed briefs in similar cases, said that allowing third parties legal rights to a child can be "confusing and damaging."

"These kinds of cases pose a significant threat to parental rights," said Staver, who is dean of the law school at Jerry Falwell's Liberty University. "And they can create a huge web of conflict when you may have two parents who divorce and then one person lives with another person and they end up with parental rights."

The Maryland case involved a woman referred to in court papers as Janice M., who adopted a child named Maya from India during her 18-year relationship with Margaret K. After the women ended the relationship, Margaret petitioned the court for custody and won visitation rights, and Janice appealed the decision.

The women's full names have been kept confidential to protect Maya's identity.

The Court of Appeals remanded the case to Baltimore County Circuit Court, which now must determine whether Margaret can show that "exceptional" circumstances trump Janice's right to control the child's upbringing. The appellate justices wrote that all relevant factors would be considered under the exceptional test, such as whether a psychological bond has been forged.

The case centers on what third parties can petition the court for rights to a child. The appellate justices cited a 2000 case in which the U.S. Supreme Court held that a Washington state law went too far by allowing a judge to grant "any person" rights to visit a child over a parent's objections. Justice Sandra Day O'Connor wrote that the state had injected itself into private family lives.

Cynthia E. Young, an attorney who represented Janice, said the Maryland court wanted to make clear that not every third party who has developed a close personal relationship with a child can seek custody or visitation rights. She said Margaret did not try to adopt Maya and had "never had much interest in the child" until after the breakup. While second-parent adoptions are not explicitly allowed in Maryland law, judges in Baltimore and other jurisdictions have granted them.

"Part of my argument was that, 'Gee, an au pair or teacher could petition for visitation if being a de facto parent is the standard,'" Young said. "No one wants that to happen."

Jennifer S. Fairfax, Margaret's lawyer, said her client is "saddened" by the decision and worried about the future. Her client has had ongoing visitation with Maya and spent Mother's Day with her, she said.

Fairfax contended in court that the de facto parent standard as described in other court cases is a rigorous one. To meet the four-part test the courts had previously laid out, a person would have to show that the legal parent fostered such a relationship; the third party lived with the child and performed parental functions to a significant degree, and a child-parent bond was forged.

Carrie Evans, policy director of Equality Maryland, the state's leading gay-rights group, said, "Now, the onus is on the General Assembly to fix this." She noted that same-sex partners would be most adversely affected by the ruling because they do not have the legal right to marry in the state.

Equality Maryland lobbied unsuccessfully during this year's General Assembly session to legalize same-sex unions after the Court of Appeals last year upheld the state's statute defining marriage as between a man and a woman.

"Up until today, co-parents were able to have these rights in Maryland, and so once again it's very frustrating that the court did what they did and kicks it back to the legislature," Evans said.

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