The Children of Same-Sex Couples in Maryland

We discussed the pending same-sex marriage legislation in our February 25, 2011 blog. In our blog we touched briefly on the rights of same sex unwed couples with children and thought the topic could use a little further explanation because there are consequences to not having a legal tie to your child(ren).

Typically, when a same sex couple adopts a child, only one of them actually adopts the child from the agency, country, service, because two people without a legal tie to one another are generally not permitted to adopt a child together. Therefore, only one parent in a same sex unwed relationship is deemed to be the legally recognized parent of the child. This means only that “legal parent” can authorize medical treatments, make medical decisions, consult with therapists, obtain emergency care for the child, obtain school records for the child, make decisions regarding the child’s 504 or IEP plan, meet with teachers, etc. For example, the parent who is not legally recognized as the child’s parent cannot authorize the pediatrician to administer inoculations, tests, draw blood, or prescribe medication. This is obviously a challenge for same sex unwed parents who otherwise share in the day to day parenting responsibilities of the child and are working together as a family unit to raise the child. Some of the difficulties can be cured by subsequent adoption proceedings, powers of attorney, and adding names to birth certificates. However, the costs, time and emotion involved are substantial.

From my perspective as a family law practitioner, one of the greatest problems for the same sex unwed parents versus married parents arises if the parents separate and a custody determination needs to be made by a court. As we discussed in our November 27, 2009 and August 11, 2009 blogs the same sex parent that was not the parent to adopt the child is viewed as a third party in the eyes of the law. Third parties would also carry over to children born by surrogacy or otherwise born to one of the parties. If both parents are not on the Order of Adoption and/or birth certificate, one will deemed a third party in the eyes of the Court. Accordingly, in order to obtain any type of custody and/or visitation with the child they must overcome the third party standard, which is currently very difficult in Maryland. The “third party” must prove that the legal parent is unfit or that other exceptional circumstances exist. As explained in our July 1, 2010 blog, a finding of exceptional circumstances requires a court to make a finding that without visitation there will be actual harm to the child. In my opinion and experience the exceptional circumstances burden is a difficult standard to meet and prove.

Another area where not being a legally recognized parent to a child has consequences is in the Estate arena. Unwed same sex couples without a will could find themselves in a difficult situation with the child if the non-legal parent in the couple is to pass away. If there is nothing which legally ties that parent to the child, such as a birth certificate or Order of Adoption that child will not be legally recognized as that parent’s child under Maryland’s present laws of intestate succession (dying without a Last Will and Testament). Accordingly, the child will not be a beneficiary under the estate for any purpose.

In the event the same sex legislation does pass and becomes law, those same sex parents that do marry and have children will no longer face these roadblocks in parenting, raising and providing for their children. For additional information on child custody and visitation, contact an experienced Maryland custody attorney.