By Fred Franke, Franke Beckett 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.

The Conover Court addressed the issue by reversing its earlier decision in Janice M. v. Margaret K., 404 Md. 661 (2008) where it had concluded that de facto parent status was not recognized in Maryland. Instead, it fell back to the primary goal in custody and visitation cases of determining what would serve the best interest of the child. Interestingly, the Court adopted Judge Raker’s dissent in the Janice M. case and Judge Raker, who is now retired, was specially assigned to the Conover case. Essentially, the Conover Court held that courts should look to four factors to determine whether de facto parenthood exists: (1) that the legal parent consented to and fostered the relationship, (2) that the child and the legal parent and the de facto parent must have lived with the child, (3) that the de facto parent must have performed parental functions for the child to a significant degree and (4) that a parent-child bond was forged between the child and the de facto parent. The concurring opinions pointed out that this test may work well for couples where there is no other legal parent involved but that it could, if literally applied, create situations where a child would have three parents.

Because the Court recognized the equitable principle of de facto parenthood, it did not address whether Estates & Trusts § 1-208 would apply under the Due Process provision of the U.S. Constitution to a post-birth marriage of a lesbian couple. Estates & Trusts § 1-208(b) says that a child born to unmarried parents may be considered the child of the father if he subsequently marries the mother. The Court of Special Appeals held that the legislature and not the courts would need to decide whether to expand the scope of that provision.

The Conover Court, in fact, addresses whether it is appropriate for the judiciary to make determinations based on societal change or whether such determinations should be left to the General Assembly. The Conover Court held that in custody cases, the General Assembly has let the courts determine generally what is in the best interests of the child rather than create a detailed statutory framework.

Of course, no statutory scheme can ever be comprehensive enough to cover every nuance of human relationships. Over 100 years ago, Oliver Wendell Holmes, Jr., observed that the common law is more malleable than statutory law because, “[i]t is forever adopting new principles from life at one end, and it always retains old ones from history at the other …” Thus, according to Holmes, the common law has the unique flexibility to determine the rules by which we should be governed as a society.

“Family,” or its close cousin, the “natural objects of one’s bounty,” are not stagnant concepts in American society: “The traditional ‘Leave It To Beaver’ family no longer prevails … to be sure, families consisting of a wage-earning husband, a homemaker and child-rearing wife, and their two joint children still exist. But because divorce rates are high and remarriage abounds, many married couples have or will end life having children from prior marriages on one or both sides. Families are routinely headed by two adults working outside the home, or by a single parent. Unmarried heterosexual and homosexual couples, sometimes with children, are also unmistakable parts of the American family scene.” Lawrence W. Waggoner, The Multiple-Marriage Society and Spousal Rights Under the Revised Uniform Probate Code, 76 Iowa L. Rev. 223-4 (1991). Since Professor Waggoner’s observation, of course, same-sex marriage has become an unmistakable part of the American family scene.

The Court of Appeals decision in Conover should be commended for following the best traditions of the common law. Unlike a more brittle legal system of civil law jurisdictions, the common law comes from the particular to the general principle. The common law is sometimes messy, of course, but remains a powerful method our society uses in its attempts to reach fair resolution of disputes.