Conover v. Conover

146 A.3d 433 (2016)

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Nature of the Case

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Facts

Michelle 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. The couple gave birth to a son, 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. In July, Brittany prevented Michelle from continuing to visit Jaxon. In February 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. Eventually, the court conducted a hearing and found that: Michelle helped choose an anonymous sperm donor with characteristics similar to her own, Brittany took on the more 'female' role in the relationship, Jaxon, at times, called Michelle 'Dada' or 'Daddy' even though Brittany objected, Brittany sometimes referred to Michelle as Jaxon's father, a document written entirely in Brittany's handwriting was introduced and it stated that both parties 'verified' that they agreed to 'joint custody' of Jaxon with 'the exact terms of which to be determined at a later date,' Michelle testified that the parties considered initiating a proceeding for Michelle to adopt Jaxon, but they could not afford the cost. The court found that Michelle did not have standing to contest custody or visitation. It found that Michelle did not have parental standing and the common law and statutory presumption that a child born during a marriage is presumed to be the child of both spouses was not applicable here as Jaxon was conceived and born prior to Brittany and Michelle's marriage. The Circuit Court stated that Michelle was Jaxon's de facto parent but that de facto parent status was not recognized in Maryland. The court found Brittany to be a fit parent and that 'there [had] been no showing of exceptional circumstances.' The Circuit Court denied Michelle's request for custody or visitation based on lack of standing. Michelle appealed. The Court of Special Appeals affirmed. The court ruled that even if Michelle qualified as a 'father' under ET § 1-208(b) 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. Michelle appealed.