The Court dismissed a broad attack on the constitutionality of Maryland’s paternity and child legitimacy statutes because this issue was not raised or decided in the Circuit Court. It examined Michelle’s claims assuming, but not deciding, that Estates & Trusts § 1-208(b) must be read to include women under the Maryland Equal Rights Amendment. The Court held that § 1-208 will not establish paternity when, in fact, the lack of actual paternity can be shown. Compare with Monroe v. Monroe, 329 Md. 758, 621 A.2d 898 (1993) (A blood test disproved paternity but the Court upheld the man’s custody rights because of “exceptional circumstances” in the case, and not based on the paternity statute.) The Conover Court affirmed the Circuit Court’s holding that such exceptional circumstances did not exist that would allow a third party to have access to a child over the objections of the biological parent. Historically, exceptional circumstances are found when the biological parent is unfit to have custody. Of course, this case is important to the trust & estate bar because of the implications it may have on definitions of children and inheritances left to non-biological children.

The court’s conclusion is telling: “In conclusion, it must be said that this is a sad case; nor can Michelle’s desire for access to Jaxon be questioned… The interplay between the State’s paternity statues and the marriage, divorce, and child access rights of same sex couples is aptly characterized as ‘uncharted Maryland waters in an area where the Legislature is better suited to consider the competing legal and societal values….'”. Perhaps. My guess is that the Court of Appeals, at the least, will want to explore the ability of Equity to fashion a less sad remedy in this case.