By Fred Franke, The Law Office of Frederick R. Franke, Jr. LLC
The Court of Appeals decided a child custody case arising out of a divorce action that will have reverberations in the law of estates and trusts. In Conover v. Conover, 2016 W.L. 3633062 (July 7, 2016), the Court of Appeals held that Maryland recognizes de facto parenthood. In doing so, the Court sidestepped the issue of whether due process requires Estates & Trusts § 1-208(b) (determining relationships for inheritance purposes) to deem a non-married, non-biological woman in a same-sex relationship who subsequently marries the child’s mother to be the child’s parent. Although the Court explicitly sidestepped that issue, it endorsed a broader equitable basis for parenthood that may affect the laws of intestacy and/or the interpretation of existing wills and trusts.
Conover involved the divorce of Michelle and Brittany Conover who were married in the District of Columbia a few months after D.C. permitted same-sex marriages. Brittany became pregnant by artificial insemination, giving birth to a son shortly before their marriage. The record showed that Michelle was involved in the decision of the artificial insemination and that Brittany, on occasion, referred to Michelle as the child’s father. Although not an element of the decision in the case, the Court noted in its first footnote that Michelle is now a “transgender man” but that female pronouns and his former name was used for consistency’s sake. [Read more…]