Conover v. Conover
146 A.3d 433
Md.2016Background
- Michelle (former partner) and Brittany were a same-sex couple; Brittany gave birth to Jaxon via anonymous artificial insemination in 2010; the couple married later that year and separated in 2011.
- After separation, Michelle had some visitation but Brittany later cut off access; Brittany sought divorce and asserted there were no children of the marriage; Michelle sought visitation but not custody.
- At a circuit-court hearing Michelle presented evidence she participated in donor selection, was treated as a parent (child sometimes called her “Daddy”), lived with and cared for the child, and had contemplated adopting but could not afford it.
- The circuit court ruled Michelle lacked standing: it treated her as a “third party,” found Janice M. v. Margaret K. precluded recognition of de facto parenthood as a standalone route to access without showing parental unfitness or exceptional circumstances, and denied visitation.
- The Court of Special Appeals affirmed; the Maryland Court of Appeals granted certiorari, overruled Janice M., and held Maryland now recognizes de facto parenthood (adopting the four-factor H.S.H.-K. test) and remanded for application of that test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Maryland should recognize de facto parenthood and abandon Janice M. | Conover argued Maryland should recognize de facto parenthood so a nonbiological, nonadoptive parent who functionally parented a child can obtain standing without first proving parental unfitness or exceptional circumstances. | Brittany relied on Janice M. and related precedent, arguing de facto parenthood is not a separate legal status and third parties must show parental unfitness or exceptional circumstances before a best-interests analysis. | Court overruled Janice M. and held de facto parenthood is a viable basis for standing; courts should apply the adopted multi‑factor H.S.H.-K. test. |
| Standard and test for establishing de facto parent status | Michelle urged recognition of parental-equivalent status based on her parenting role and relationship with the child. | Brittany contended existing third-party thresholds (unfitness/exceptional circumstances) must remain; alternatively, statutory parentage frameworks control. | Court adopted the four-part H.S.H.-K. test (consent/fostering by legal parent; cohabitation; assumption of parental responsibilities; parental-type bond over time) as the Maryland standard. |
| Whether a de facto parent must still show parental unfitness or exceptional circumstances before court considers best interests | Michelle argued de facto status should permit direct best‑interests analysis without the additional threshold. | Brittany argued Janice M. required exceptional circumstances/unfitness as a prerequisite to best-interests review to protect parental constitutional rights. | Court held de facto parents need not first prove parental unfitness or exceptional circumstances; once de facto status is established, courts proceed to best-interests analysis. |
| Whether statutory parentage provisions (ET §1‑208) needed resolution here to confer legal parent status | Michelle alternatively invoked ET §1‑208; argued gender-neutral reading could confer parental status. | Brittany argued statutory schemes and precedent foreclose such an interpretation and that de facto parenthood should not be judicially created. | Court did not decide ET §1‑208 issue because overruling Janice M. resolved standing; it remanded for circuit court to apply H.S.H.-K. factors. |
Key Cases Cited
- Janice M. v. Margaret K., 404 Md. 661 (2008) (previously rejected recognizing de facto parenthood as a standalone basis for access)
- McDermott v. Dougherty, 385 Md. 320 (2005) (distinguishes "pure third parties" from parental-role third parties and discusses threshold protections for parental rights)
- Koshko v. Haining, 398 Md. 404 (2007) (extends McDermott’s threshold requirements to third‑party visitation disputes)
- In re Custody of H.S.H.-K., 193 Wis.2d 649 (1995) (articulated four‑factor test for de facto parenthood adopted by Maryland)
- Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion recognizing parental due‑process interest in custody/visitation decisions; emphasized limits of broad third‑party visitation statutes)
- Monroe v. Monroe, 329 Md. 758 (1993) (emphasized the significance of the relationship between child and nonbiological caregiver when evaluating exceptional circumstances)
- Ross v. Hoffman, 280 Md. 172 (1977) (articulates best‑interests-of-the-child as the controlling standard in custody disputes)