Same-Sex Couples and Child Custody

Same-sex couples have been able to get married in Maryland since 2013, and in other parts of the country as early as 2004. When gay and lesbian couples decide to start families, the law around same-sex couples and child custody can seem complicated.

LGBTQ+ Families Face Challenges Under Maryland Law

There are more than 12,500 LGBTQ+ families in Maryland. Of those, approximately 20% are raising children. These children may be a single spouse’s child from an earlier relationship, a child adopted by one or both parents, or a child conceived with the help of a sperm donor or a gestational surrogate. Even though LGBTQ people make up more than 4% of Maryland residents, the laws in the state aren’t always designed to address the needs of same-sex couples or their children.

For example, Maryland law assumes that “a child born or during a marriage is presumed to be the legitimate child of both spouses.” This includes “a child conceived by means of assisted reproduction during the marriage of the child’s mother with consent of the mother’s spouse…” This law is more inclusive of same-sex couples than some other states, since it uses the word “spouse” instead of “husband.” However, because the use of IVF is limited to “the child’s mother,” the law protects lesbian couples, but not their gay counterparts. Male same-sex couples even face difficulties when attempting to have both fathers’ named on their child’s birth certificate.

De-Facto Parenting in Same-Sex Custody Battles

Because of the way Maryland’s law was written, in the course of a same-sex divorce, family law attorneys usually need to look at each party’s biological relationship to the same sex couple’s baby. A biological parent of the child can establish his or her rights to child custody, child support, and visitation through a DNA test, or because she was the mother who carried the child.

For the non-biological parent, establishing parental rights can be significantly more difficult at times. Unless the family has gone through a second-parent adoption, the non-biological parent does not have the same inherent rights to the child as their biologically related spouse. Instead, the non-biological parent will need to establish that they served as a “de-facto parent.”

A de-facto parent is a person who has acted as a parent for the child, providing love, affection, and support, and assuming the day-to-day responsibilities for the child’s care and upbringing. To establish their status as de-facto parents, non-biological mothers and fathers will need to show:

• That the biological parent consented to or fostered their parent-child relationship with the child
• That they lived in the same household with the child for an extended period of time
• That they willingly provided daily care and undertook significant responsibility for the child’s life including their education and development
• That they had acted in a parental role for an extended period of time, fostering a bond with the child

Where the child has a second legal parent (such as in cases where the child was born prior to the same-sex marriage), only one legal parent must consent to the parent-child relationship to establish a de-facto parent’s status. Once the non-biological parent has established themselves as a de facto parent, the Maryland family court can award them child custody or visitation, and can include them in any child support orders related to the child.

The Proactive Approach: Collaborative Custody Agreements

Unfortunately, gay and lesbian marriages are just as likely to break down as any other. When marriages fail there is frequently a painful and abrupt end. When custody is also an issue, same-sex couples are frequently left to fight time-consuming, emotionally exhausting, and expensive custody battles.

There is an option for same-sex couples to get ahead of this exposure when family planning. Both parents may recognize the important role the other serves in their child’s life, with or without a biological connection. When parents’ relationships break down over time, or where there is little conflict, couples may want the non-biological parent included in their family’s child custody plan. Still, they may not know what that plan should look like, or may have hard feelings about their former spouse that need to be addressed. These same processes may be used to put certain safeguards and agreements as to custody in place, that would go into effect upon the birth of a child. The Collaborative process, is a child-focused and out-of-court process that would allow same-sex couples to reach a child custody agreement that respects both parents’ bond with their children as the onset of family planning or when the relationship breaks down..

The Maryland Courts will honor an agreement by both parties to treat a non-biological parent as a de facto parent. By reaching this agreement out of court with the help of collaborative law professionals, gay and lesbian families can avoid the heartache and expense of proving their parental connection in court, and still protect their on-going rights to act as their child’s parent.

At the Law Office of Shelly M. Ingram, our Maryland divorce lawyers are trained in collaborative divorce, mediation, and litigation strategies. We can help you understand Maryland law and how it affects your individual parental rights in a child custody case, so that you can decide which process is best for your family. To talk to a collaborative divorce attorney, contact us today to schedule a confidential office consultation.