May 28, 2008
Maryland Court of Appeals Refuses to Recognize Categorical De Facto Parenthood Status
In Janice M. v. Margaret K., 2008 WL 2080681 (Ct. App. Md. May 19, 2008), the Maryland Court of Appeals held that "in order to overcome the constitutional rights of a legal parent to govern the care, custody, and control of his or her child, even a parent who would qualify as a de facto parent, who seeks visitation or custody, must demonstrate exceptional circumstances as a prerequisite to the court's consideration of the best interests of the child." Id. at *1.
In other words, the court would treat a same-sex partner--here a partner of 18 years--as it would treat any third party who is not a legal parent of the child and seeks visitation or custody. The court refused to privilege the relationship of a parent-like figure or a "de facto parent" as opposed to a grandparent, a friend, or some other type of caregiver--even though the trial court only granted visitation, not custody to the same-sex partner.
This decision ignores the tight bonds that are formed between parental figures and children. True, the same sex partner in this instance did not adopt the child, however, it is unclear that a same-sex partner can adopt a child in Maryland. See id. at *19 n.1 (Raker, J., dissenting). Permitting the recognition of a de facto parent for visitation purposes does not ignore the "exceptional circumstances" prerequisite in my opinion--rather, it creates a condition that would always satisfy the exceptional circumstance test. In other words, if a parent permits a partner to act as a parent (i.e. creates a de facto parent), then the exceptional circumstance test is always met.