Maryland Case Tackles Same-Sex Visitiation

Charlotte Divorce Attorney Matthew R. Arnold of Arnold & Smith, PLLC answers the question “Does adultery affect who gets custody?”


This summer’s same-sex marriage ruling has resulted in rapid change across the country as courts adapt to the new legal landscape. The family law court system has borne the brunt of these changes, dealing with weddings, adoptions and, unfortunately, divorces. Given how new same-sex marriage and divorce is across most of the country, some issues have arisen and the courts are having to make their way through uncharted territory.



One good example of this uncharted territory comes in same-sex divorces where custody and visitation is an issue. Though courts have long struggled with handling opposite-sex custody battles, those involving parents of the same sex have proven even more challenging. The main reason is that in opposite-sex divorces, children are often the product of the parties, biologically related offspring. In such cases, it is clear who the mother and father is and their claims for custody can then be weighed.


In same-sex cases, determining who has a valid legal claim can be much more confusing. Take, for instance, a recent case out of Maryland. In that case, a lesbian couple divorced and both parties asked for visitation with the son. The judge in the case found in favor of the boy’s biological mother, who gave birth to the boy 6 months before marrying her future wife.


The wife, though not biologically related to the child, helped raise the boy and behaved in every respect like a parent. Both women planned to have the child together and fully intended to raise the child jointly. The two decided to start the process before marrying because, at the time, same-sex marriage was illegal in their state. After marrying, the two never took any steps to legally clarify the other woman’s relationship with the child, something that would prove problematic down the road.


Given that both women believed they were parents, it wasn’t a surprise that when the two decided to divorce that the non-biological mother requested visitation rights, something she was denied and later appealed. Earlier this week a Maryland appeals court affirmed that denial. In the ruling, the court found that a lesbian woman has no right to visitation or custody when she has neither a formal legal nor blood relationship with the child.


The Court went a step further and said that under current Maryland law, the other mother was deemed a “third party” rather than a second parent. This designation is a significant one legally, because it makes it vastly more difficult to succeed in a request for visitation. In Maryland, and many other states, a third party would have to prove that the parent is unfit or that exceptional circumstances exist to override the parent’s choices about who the child spends his or her time with. In this case, the biological mother was deemed fit and the other woman’s claims were dismissed.


Though the court ruled against the non-biological mother, the majority opinion recognized that the laws governing the case need to be changed. The Court said that state legislators need to address the ambiguities in Maryland law dealing with parenthood, especially in same-sex marriages. Though Maryland recognizes the common-law doctrine that says a child born during a marriage is presumed to be the child of both parents, the Court pointed out that because the child in this case was born prior to the marriage, no such presumption could be said to exist, despite overwhelming evidence to the contrary.


If you find yourself facing a complicated family law matter, then you need the help of experienced family-law attorneys in Charlotte, North Carolina who can help guide you through the often confusing process of divorce. Please contact Arnold & Smith, PLLC today at (704) 370-2828 or find additional resources here.



About the Author

ARNOLD & SMITH LAWMatthew Arnold is a Managing Member of Arnold & Smith, PLLC, where he focuses on the areas of family law, divorce, child custody, child support, alimony and equitable distribution.

Mr. Arnold was raised in Charlotte, where he graduated from Providence Senior High School. He attended Belmont Abbey College, where he graduated cum laude, before attending law school at the University of North Carolina at Chapel Hill on a full academic scholarship.

A certified Family-Law Specialist, Mr. Arnold is admitted to practice in all state and administrative courts in North Carolina, before the United States District Court for the Western District of North Carolina, and before the Fourth Circuit Court of Appeals in Richmond, Virginia.

In his free time, Mr. Arnold enjoys golfing and spending time with his wife and three children.






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