When it Comes to Custody Battles, Marriage Equality Still Has a Ways to Go

Michelle Conover is no longer a mother—at least according to the Maryland Court of Special Appeals. Last month, during divorce proceedings initiated by Michelle’s wife Brittany Conover, the court stripped Michelle of her parental rights over their five-year old son Jaxon.

Was Michelle an unfit mother? The court never inquired. Instead it rested its decision on biology and marital status. Brittany, not Michelle, had given birth to their son, through artificial insemination. And, at the time of his birth, the two women had not yet legally wed. Under Maryland law, then, Michelle was only a “third party.”

The court’s decision illustrates the uncertainty facing gay and lesbian non-biological parents raising children in states with similar parentage laws. The Supreme Court’s decision last June requiring states to recognize and celebrate same-sex marriage was hailed as establishing “marriage equality.” But many battles remain to be fought before the courts treat same-sex parents as solicitously as opposite-sex ones.

A couple since 2002, Michelle and Brittany Conover pursued parenthood together. They both selected Jaxon’s donor—using “someone with physical characteristics like” Michelle’s, according to a concurring opinion in the case. Jaxon, conceived in 2009, carries Michelle’s last name; both women regarded Michelle as Jaxon’s parent during the course of their relationship and immediately after their separation. In 2012, Brittany and Michelle both signed a handwritten agreement stipulating that the two women share joint custody.

And the couple did marry—but, like many gay couples, they had to wait a bit. The District of Columbia, where they lived when Brittany conceived, started issuing wedding licenses in March 2010, only one-month before Jaxon was born. They elected to wait and married seven months later when Jaxon turned six months old.

The Maryland court, however, was not satisfied by that legal marriage or by the clear fact of their co-parenting. Instead the court relied heavily on two decisions the couple had made that, unbeknownst to Michelle, would come to mean everything for her parental status. First, the couple could have received a wedding license prior to 2010 through a handful of other states. Connecticut, Massachusetts and Iowa had legalized marriage by the time Jaxon was conceived. But they waited for D.C. to issue wedding licenses. Second, they could have pursued a second-parent adoption, which would have solidified Michelle’s co-parental status regardless of biology or marriage.

To be sure, the couple’s decision to stay in D.C. to wed and to avoid second-parent adoption is not without precedent. It is not uncommon for any couple, gay or straight, to want to marry within their own state. Planning a wedding within one’s own community carries a number of legal, social and logistical advantages—and planning a wedding one month prior to having a baby could be overwhelming, to say the least. Until the Supreme Court’s decision last June in Obergefell v. Hodges, many gay couples also had political and philosophical reasons to wait for their home state to support marriage equality. Some strongly believed that until their own communities recognized their marriage, they could not truly be married.

And for heterosexual male partners, the law does not regard marriage before a child’s birth as an absolute requirement for paternity.

Had Michelle “second-parent adopted” Jaxon, her parenting claims would have stood on more solid ground. Second-parent adoptions provide non-biological parents with a legal avenue for securing their parental status.

But these adoptions are not offered everywhere. Recent estimates suggest that lesbian and gay parents in approximately 28 states have the option (including Maryland). And second-parent adoptions are expensive—depending on the jurisdiction, they can cost as much as $5,000 in payments for legal fees, home studies and court costs.

According to Michelle Conover, the couple simply could not afford an adoption at the time their son was born. And it may not have been clear to Michelle that a second-parent adoption was necessary. She may—quite reasonably—have assumed that a lesbian couple’s marriage would solidify parental rights—just as it would for a heterosexual couple that uses artificial insemination. In most states, when a married heterosexual couple uses donor sperm to conceive, the husband’s consent to artificial insemination is sufficient to prove his parental status. Although marriage was not an option for Michelle and Brittany when Jaxon was conceived, the couple went out of their way to enact the rituals of co-parenthood and married soon after their son was born.

But the timing of her marriage, and the decision to forgo adoption—which neither spouse could have predicted would be so consequential—rendered Michelle a “third party” in the eyes of Maryland law (the state where Brittany filed for divorce in 2013). In Maryland, a third party can override the desires of the biological mother only under “exceptional circumstances” —even if siding with the biological parent strips the child of a parent.

As the court explained, “The couple could have married before Jaxon was born, but did not.” In conjunction with Michelle’s “non-adoptive status,” this meant that, as a “third party,” she must “show exceptional circumstances to obtain access to a child over the objection of a fit biological parent and to overcome the natural parent’s due process rights.”

But how can we square this with the powerful principle undergirding the Court’s decision in Obergefell? In that case, the Court overturned all remaining marriage bans, in large part because they “harmed and humiliated the children of same-sex couples” and subjected them “to a more difficult and uncertain family life.”

The short answer is that states matter a lot in family law. Even with mandated same-sex marriage recognition, states retain considerable autonomy in determining the degree to which marriage matters in parenthood—even when the result is discriminatory.

Some states—many in fact—strive to adopt a generous conception of parenthood. When two people make a baby together as a couple (either naturally or through artificial reproductive technologies), their state views them both as parents.

California’s Supreme Court in 2005 recognized the parental status of both mothers in an estranged lesbian couple—in this case for the purposes of determining financial obligation. The court argued that Elisa (the non-biological parent) met the standards of legal parentage because “[she] actively consented to, and participated in, the artificial insemination of her partner with the understanding that the resulting child or children would be raised by [them] as co-parents, and they did act as co-parents for a substantial period of time. Elisa received the twins into her home and held them out to the world as her natural children.”

But Michelle Conover’s dilemma is mirrored in the law of other states. A New York court issued an identical ruling to Maryland’s in 2014 in a case involving a similar set of facts. In that case the non-biological mother, Jann Paczkowski, lost parental standing because, at the time of her son’s birth, she and the biological mother were not married. Jann elected not to carry their son because of her ongoing health issues. Like the Conovers, Jann and her wife married shortly after their son was born, and six months after New York’s marriage equality law went into effect.

Gender is also a factor. In order to address significant state-to-state variation in parental status assessments, the National Conference of Commissioners of Uniform State Laws, in 2002 revised the Uniform Parentage Act (UPA). The Act provides language to help states establish guidelines for legitimizing the parental status of married and unmarried parents. Its very purpose is to assure that children have every opportunity to live in a two-parent family, regardless of the marital or biological configurations of their parents.

Despite its mission, however, the language of the UPA makes it far more difficult for children raised in two-mom or two-dad households to reap the benefits of being legally attached to both parents. The UPA establishes a more exacting threshold for women attempting to legitimize their parental claims than for men. A woman is considered a legal parent only in four cases: if 1) she gives birth, 2) her egg is fertilized, 3) she is a party to a gestational agreement or 4) she is considered the legally adoptive parent.

Fatherhood, on the other hand, can be found if the birth mother’s partner lived with the child for two years and perceives himself as the parent, or has agreed to assisted reproduction. Although few states have adopted the guidelines verbatim, most employ similar gender bifurcations. Maryland, for instance, permits a man to establish paternity by co-signing an Affidavit of Parentage with the birth mother—even if they were not married at the time of the child’s birth. Women aren’t entitled to the same option.

These differences fail to account for same-sex headed families. In many states, thus, a lesbian couple’s only option for shared legal parenthood is through biology or adoption, leaving very little recourse for the non-biological parent in a lesbian relationship. When the non-biological parent is a heterosexual male, his parentage claims rest on a far broader array of criteria. As the New York court admitted, had Jann Paczkowski been able to file a paternal claim, she would have only needed to demonstrate that she had acted as a parent “for a period of time sufficient to establish a paternal bond with the boy” in order to “have standing to file a petition seeking a declaration of paternity.”

Gay male couples can be challenged in different ways. Although the path to fatherhood may be more generous, the non-biological father’s legal status may be contested if a court reads fatherhood as requiring a relationship with the biological or legal mother. Generally, as the concurring opinion in the Maryland case asserted, “differentiations between same-sex spouses on the basis of their relative biological roles will always disadvantage the spouse who did not contribute.”

Some judges construe “paternity” requirements as applying to any non-gestational parent—not just fathers (or heterosexual husbands). For instance, the California court mentioned earlier considered Elisa a legal parent precisely because she met the guidelines for paternity. Rather than reading the UPA as establishing different guidelines for mothers and fathers, the court applied a gender-neutral frame when evaluating Elisa’s parental status. But without clear guidelines accounting for the existence of same-sex headed households the opportunities for tragedy abound.

And although second-parent adoptions shore up parental status in most instances, these too are vulnerable to judicial scrutiny. Last month, Alabama invalidated a fully legal second-parent adoption that had been granted in Georgia. In a case, once again, pitting one mother against the other, the Alabama Supreme Court revoked the non-biological mother’s parental status over her three children.

Although they lived in Alabama, before their breakup the couple had established residence in Georgia precisely in order to secure a second-parent adoption permitting the non-biological parent (referred to as V.L. in court documents) to have legal parental standing. When the relationship eventually dissolved, the biological mother (E.L.) contested the second-parent adoption through the Alabama courts. According to Alabama’s high court—which has still refused to rule on whether it will even follow the Supreme Court’s Obergefell decision–Georgia could only have granted parental status to V.L. if E.L. had revoked her own.

These complications are not limited to divorce proceedings. Since Obergefell, same-sex couples in at least five states have been embroiled in fights with vital records staff and state officials to be listed as co-parents on their child’s birth certificates. Birth certificates are not sufficient for proving parenthood in custody battles; however, hospitals, schools and government institutions use them regularly as proof of a parent’s legal relationship with their child. Without a birth certificate, a parent has very few avenues to prove his or her status to teachers, doctors and the like.

Marriage provides one option for same-sex couples seeking co-parenthood, but it should not be the only pathway. Without explicit acknowledgement of LGBT parenthood both within and outside of the context of marriage, lesbian or gay non-biological parents are vulnerable to the vagaries of state law and judicial precedent in ways that don’t affect heterosexual couples. And children born to same-sex couples will continue to be subjected “to a more difficult and uncertain family life.”

Alison Gash

Alison Gash is the author of Below the Radar: How Silence Can Save Civil Rights (Oxford University Press, 2015). Her work on LGBTQ rights has also appeared in Politico, Newsweek, Slate, Huffington Post and The Conversation. She is an Associate Professor of Political Science at University of Oregon. Views expressed are solely her own and are not meant to represent those of the University of Oregon.