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Same-Sex Marriage Legalization Forces Changes in Child Custody Determinations

Updated: Jul 26


Friday, June 26 will mark the fifth anniversary of the U.S. Supreme Court’s decision in Obergefell v. Hodges, the landmark 5-4 decision that struck down state laws banning same-sex marriage as unconstitutional. Prior to Obergefell, same-sex marriage was legal in some form in thirty-eight states, although marriages performed in those states were not universally recognized by other states. After Obergefell, same-sex marriages were performed in every state and those performed in one state were recognized by all of the other states. Nevertheless, between 2015 and 2019, there remained counties in Texas, Alabama, and Kentucky which refused to issue marriage licenses to same-sex couples.


The states, not the federal government, regulate marriages and likewise it is the state courts that regulate the divorces which take place when those marriages fail. There is variation from state to state in the laws which govern divorces. Yet in no other area has there been changes in the law of divorce as in the area of child custody. A child who is born to two opposite sex parents is considered the natural child of those parents. Likewise, a child who is adopted by both parents is regarded as the natural child of those parents. At best, one parent in a same-sex relationship can be the natural parent of any child born of that relationship. A practical, but sometimes expensive, option is for the non-biological parent in a same-sex relationship to adopt the child, with that child becoming the natural child of both parents. In cases where adoption is not an option, or even where Assisted Reproductive Technologies (ART) may have been used to conceive or carry a child, the right of a non-biological parent of a child to custody or visitation of that child is not automatic.

In 2016, Maryland’s highest court, the Court of Appeals issued a ruling in a case called Conover v. Conover, 450 Md. 51 (2016), where it drew a distinction between individuals who were deemed to be de facto parents and those who were other third parties, such as grandparents, family friends, or other family members. Prior to 2016, third parties who were not the biological parents of a child had to prove either parental unfitness or exceptional circumstances in order to have a court award them custody or visitation of a child. In Conover, Michelle and Brittany began a relationship in 2002, during which they discussed having a child and that Brittany would be artificially inseminated from an anonymous donor. Their son was born six months before they married in 2010, in the District of Columbia. In 2011, after Michelle and Brittany separated, Michelle visited their son and had overnight access, but before Brittany filed for divorce in 2013, Michelle was denied visitation. Michelle sought visitation of her son. The trial court held that Michelle did not have parental standing to contest custody or visitation of her son because she was not the biological parent – just a third party.


On appeal, the Court of Appeals held that de facto parents were different from other third parties and articulated a four-part test for determining whether a third party was in fact a de facto parent:

  1. That the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child;

  2. That the petitioner and the child lived together in the same household;

  3. That the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and

  4. That the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

Further, the Court held that de facto parents do not need to demonstrate parental unfitness or exceptional circumstances in order to contest custody or visitation. Parents who had not adopted their children but who met this standard could be considered de facto parents who could contest a biological parent’s right to custody of their child, and would not be considered as just third parties.


The advancements in Conover were not limited to same-sex couples. In 2018, Maryland’s intermediate appellate court, the Court of Special Appeals held in Kpetigo v. Kpetigo, 238 Md. App. 561 (2018), that Conover’s holding recognizing de facto parent status is not limited to same sex couples but applies to anyone who can satisfy the de facto standard. In Kpetigo, the trial court determined that the now ex-wife of a father whose child from a prior relationship was raised by both the father and the ex-wife while they were married, was a de facto parent. On appeal, the Court of Special Appeals agreed with the trial court in its finding that the father had consented to and fostered the close relationship between his now ex-wife and his child and that the three had lived in the same household from the father’s own testimony, and that consent could not simply be revoked at a later time. The Court further found that the ex-wife had assumed the obligations of parenthood in her care for the child and that she had established a parent-child bond due to the length of time that they lived together.


The decisions to have a child and how to have that child are complex, especially if you are a same-sex couple facing those decisions. These decisions are further complicated by the possibility of losing custody of that child in the event of divorce. If you are facing any of these issues, you should consult with an attorney experienced in how these matters are considered by the courts.

Posted by Thomas Stahl

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