Estates & Trusts § 1-208(b) provides a rule to determine the paternity of a child born to unmarried parents. The statute declares that the child is the child of the mother but is considered the child of the father if certain circumstances exist. One such circumstance is if the purported father subsequently marries the mother and acknowledges himself to be the father.

The Court of Special Appeals, in a yet-to-be published ruling, refused to extend the statute to give standing to a non-biological, non-adoptive parent of a same-sex couple upon divorce. Whether this case will be released for publication upon review is unknown at the time of submission of this article. Regardless of the eventual outcome, the case presents difficult standing and constitutional issues that are not going away.

Conover v. Conover, 2015 WL 5037039 (8/26/15), involves the divorce of Michelle and Brittany Conover, who were married in the District of Columbia a few months after it permitted same-sex marriages. Brittany became pregnant by artificial insemination, giving birth to a son shortly before the marriage. Evidence on the record indicated that Michelle was involved in the decision to artificially inseminate and that Brittany on occasion referred to Michelle as the child’s “father”. Upon divorce, Michelle filed for custody and visitation rights.

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.