Maryland Law Mother's Husband Is on Baby's Birth Certificate

Presumed Parentage for Same-Sex activity Couples

By: Michele Zavos, Partner & Rebekah DeHaven, Associate ZAVOS Police force

[NB: This commodity is in response to an article on Presumed Parentage published in the Summer outcome of this newsletter.]

Given the boundless changes to the rights and responsibilities of same-sex couples over the past ten years, it is no wonder that Maryland practitioners may be confused about how the marital presumption and the question of "legitimacy" of children nether Maryland constabulary should be applied to families headed by same-sexual activity couples. Among the most significant of these changes is the right of same-sex couples to marry, which became police force in Maryland past popular vote in 2012, and nationwide in 2015, per Obergefell 5. Hodges, 135 S. Ct. 2584 (2015), impact the parentage rights of these couples with children. In Obergefell the U.South. Supreme Court establish that same-sex couples are entitled to the full panoply of rights accorded by spousal relationship, and focused on children in these families in item. The Courtroom said:

[t]he States have contributed to the fundamental character of the union right by placing that establishment at the center of so many facets of the legal and social order…There is no difference between same- and contrary-sex activity couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that usa have linked to marriage. This harm results in more than just material burdens. Same-sex activity couples are consigned to an instability many reverse-sex couples would deem intolerable in their own lives."

Id. at 2601. The Court made clear that children in families headed by same-sex couples need the same protections as children in families headed past opposite-sex activity couples, including "recognition, stability, and predictability." Id. at 2600. Courts around the country are at present trying to interpret the Obergefell directives in light of their ain jurisdiction's laws.

A parent's legal relationship to a child can occur in a number of means: 1) birth; two) biology; 3) intent, including de facto parentage; 4) matrimony to the birth parent; 5) adoption; and 6) marital presumption. Maryland constabulary addresses all of these. Maryland police assumes that a birth mother of a child is the child's legal mother, although we have establish no statute or case law that makes this assumption explicit, every bit other jurisdictions take done. See, e.g. D.C. Lawmaking Ann. §16-909 (a-1) (1), a mother-kid relationship is established past a adult female having given birth… Biology most always creates a legal relationship betwixt a father and a child, notwithstanding other potential legal relationships. Run across Kamp v. Dep't of Homo Services., 410 Md. 645 (Physician. Ct. of App. 2009) and Burden v. Burden, 179 Md. App. 348 (Dr.. Ct. Spec. App. 2008) (rebutting marital presumption).

All of these possibilities can apply in Maryland to same-sex couples. Arguably, the Maryland Equal Rights Subpoena also bolsters all arguments on behalf of a aforementioned-sex couple continuing

in the same relation to their child as a heterosexual couple.

"Equality of rights under the police force shall not be abridged or denied because of sexual activity." Maryland Constitution, Annunciation of Rights, Article 46 (1972).

A recent Maryland Court of Appeals instance, Conover 5. Conover, 450 Doctor. 51 (Md. Ct. of App. 2016) enumerated the factors for a non-birth, not-legal "parent" to a child to be institute to be a legal parent, essentially pursuant to the implicit intent of the parties raising the child. Md. Code Ann., Fam. Title V, provides the contours of adoption law. A marital presumption that a spouse of a birth mother is the parent of the child can exist found at Doctor. Lawmaking Ann., Est. & Trusts §1-206. See also Sieglein 5. Schmidt, 447 Doc. 647 (Md. Ct. of App. 2016). A recent Court of Appeals instance interpreting Md. Code Ann., Est. & Trusts § 1-206 (b) held that a spouse of a adult female who gave birth to a kid not genetically related to either the nascency mother or her male spouse is a parent if that spouse agreed to assisted reproductive means to create the child. See Sieglein v. Schmidt at 669-70.

Currently, same-sex couples cannot biologically create a child together. But the assumption that all heterosexual couples are each biologically related to their children is incorrect. Many heterosexual couples are infertile. Over 12% of women and over x% of men boxing infertility. Datta, J. et. al., "Prevalence of infertility and help-seeking among 15 000 women and men," Human Reproduction, Book 31, Consequence 9, i September 2016, Pages 2108–2118. Therefore, children in pregnant numbers of families headed past reverse-sex couples are not genetically related to both parents. Those children are created by a donor egg, donor sperm, or both. Those children, however, are all the same virtually e'er considered by law to be the children of both parents. A homo, who by constabulary is a father, is non subjected to a fertility test to determine whether he tin can create a child with his female spouse.

Same-sexual practice lesbian parents are in the same position every bit such a couple. Accordingly, the female spouse of a birth female parent should be considered a parent to the same extent every bit the infertile married man of the nascence mother. Currently, married gay male couples who have children together through surrogacy must obtain a courtroom club to ensure both of their rights to their child. We believe, even so, that a strong statement can be made that the non- genetic parent in such a couple should be afforded the marital presumption.

Why is a de jure legal human relationship to a child important? There are many significant reasons, both for the parent. The following is a non-inclusive listing: inheritance, social security benefits, stability in the child'south life, access to custody and visitation, responsibleness for child support. Without a court social club or legal relationship defined by statute, these parental rights and responsibilities are at risk, specially if couples motion from jurisdiction to jurisdiction, equally family law is almost ever state specific. For example, at that place are some states in which a marital presumption does non be, or in which courts have refused to utilize the marital presumption to married lesbian couples. See, e.g. Matter of Q.One thousand. v. B.C., 46 Misc.3d 594 (Family unit Ct. of Monroe County, New York, 2014).

Because the parental rights of lesbian married couples may not be upheld in all jurisdictions, and the marital presumption has non however been applied to gay male married couples, we strongly recommend that such couples obtain a "second-parent" adoption. Such adoptions are not provided for in the Maryland Lawmaking nor have they been confirmed by a Maryland appellate court, but they take been granted in Maryland on a regular ground since 1994 in almost all counties, fifty-fifty if the couple is not married. Moreover, the U.S. Supreme Courtroom, in Five.L. v. E.L., 136 S. Ct. 1017 (2016) plant that a Georgia second-parent adoption was entitled to full faith and credit from the State of Alabama, despite Alabama's Supreme Courtroom property that said adoption was void for lack of subject affair jurisdiction in Georgia, thus depriving the Georgia court order of full faith and credit protections. Run across Ex Parte E.Fifty., 208 So. 3d 1102 (Ala. 2015). Accordingly, any second-parent adoption granted in a U.S. jurisdiction is entitled to full organized religion and credit in every other U.Due south. jurisdiction, ensuring the parental rights of the non-birth parent withal the laws of some other jurisdiction.

To be clear, nosotros exercise not believe a second-parent adoption is necessary in Maryland where the marital presumption should be practical to a married lesbian couple, merely such an adoption should protect a non-nascence parent in whatsoever circumstance. We also believe that a married gay male couple has the same correct to the marital presumption if their child is born from a gestational surrogacy using one of the men's sperm. The legal argument for application of the marital presumption in such circumstances is substantially the same as with a married lesbian couple.

If a lesbian or gay male couple is not married, have not obtained a 2nd-parent adoption, but raise children together, proving a parental relationship between the legal parent and the children becomes more difficult in the face up of the legal parent'south opposition. The Maryland Court of Appeals in Conover, supra, recently articulated the circumstances in which a non-biological, not-legal parent could be found to be a de facto parent. Such a finding would brand the de facto parent essentially a legal parent.

The factors for de facto parentage are:

1. that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-similar relationship with the kid;
2. that the petitioner and the child lived together in the aforementioned household;
3. that the petitioner causeless obligations of parenthood by taking significant responsibility for the child's intendance, pedagogy, and development, including contributing towards the kid'southward support, without expectation of financial bounty; and
4. that the petitioner has been in a parental role for a length of time sufficient to have established with the kid a bonded, dependent human relationship parental in nature.

Reverse to the beliefs of many, a nascence certificate does not establish a legal human relationship between the parents named on the nascence certificate and the child for whom the birth document has been issued. The birth certificate is simply a tool for the regime to rail births. The birth certificate may be used as evidence of legal parentage, only it is not dispositive. A contempo U.S. Supreme Court case, Pavan v. Smith, 137 S. Ct. 2075 (2017) held that a married lesbian couple is entitled to both be named on the nascency certificate of a child built-in into their union. Unfortunately, many married couples presume that their spousal relationship and the birth document create a legal relationship betwixt the non-birth parent and the child. This is wrong, and a dangerous assumption on the part of the parents and their attorneys.

Family law, and in particular, parentage, is constantly changing to meet the needs of differently configured families, both by statute and instance police force. Maryland practitioners, fifty-fifty if they have been practicing family law for many years, need to be aware of the complicated interplay of various statutes and instance law from the Maryland courts and other jurisdictions. Parentage is no longer a simple equation of married biological mother and biological father equal sole legal parents. Proving parentage requires a knowledge of statutes, case law and the realities of how courts on the footing are interpreting the law in this area which is, similar the reproductive relationships in our society, in constant flux.

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Source: https://www.zavoslaw.com/blog/presumed-parentage-same-sex-couples/

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