Conover v. Conover

VICTORY: Maryland’s highest court rules in favor of de facto parentage for LGBTQ parents.

Pictured: FreeState Justice client Michael Conover, holding his son, Jaxon.

UPDATE (July 2016): VICTORY. On July 7, 2016, Maryland’s highest court, the Court of Appeals, ruled in favor of our client, Michael Conover, holding unanimously that the parent-child relationships of de facto parents, who lack a biological or adoptive relationship with their children, must be given legal recognition. In the 36-page Court of Appeals opinion, written by Judge Sally Adkins, the court ruled that “de facto parenthood is a viable means to establish standing to contest custody or visitation.” The Court overruled its own contrary decision in the 2008 case Janice M. v. Margaret K., which had rejected the de facto parenthood doctrine, calling the 2008 decision “clearly wrong” and stating that Janice M. “failed to effectively address problems typical of divorce by same-sex married couples.” Instead, the court declared today: “A legal parent does not have a right to voluntarily cultivate their child’s parental-type relationship with a third party and then seek to extinguish it.” The case will now return to the Circuit Court for Washington County in Hagerstown, where we will seek visitation for our client, Michael Conover, with his son, as a legally recognized de facto parent. The Court of Appeals’ decision is available here: http://www.mdcourts.gov/opinions/coa/2016/79a15.pdf.

Read our full press release here: https://freestate-justice.org/wp-content/uploads/2016/07/Conover-Victory-Press-Release-7-7-16.pdf

A factsheet regarding what this decision means for LGBTQ+ families in Maryland is available here: https://freestate-justice.org/de-facto-parenthood-conover-factsheet/

UPDATE (April 2016): Oral argument before the Court of Appeals took place on Tuesday, April 5, 2016. Video of the oral argument is archived here: http://mdcourts.gov/coappeals/media/2015/coa20160405caseno79.mp4

UPDATE (January 2016): The Court of Appeals has agreed to hear FreeState Legal’s petition on behalf of Michael Conover. Legal briefs filed in the case are available at the bottom of this page. Arguments in the case will be heard on April 5, 2016 at the Court of Appeals in Annapolis, Maryland. A decision in the case from the Court of Appeals is expected before September 2016.

UPDATE (February 2016): On February 25, 2016, seven friend-of-the-court briefs were filed in the Court of Appeals by a broad array of organizations and individuals, all supporting Michael Conover. Links to the briefs are available at the bottom this page.

October 22, 2015 – In a case that impacts thousands of children in Maryland born into families headed by same-sex couples, FreeState Legal has asked Maryland’s highest court, the Court of Appeals, to review a decision by lower courts denying legal parentage to a person who raised a child from birth with their same-sex spouse. In the case of Conover v. Conover, FreeState Legal represents Michael Conover, a transgender man. Before Michael’s gender transition, he and his female partner had a child by artificial insemination of his partner. They married after marriage equality was legally recognized for same-sex couples, but the lower courts have refused to recognize Michael’s parentage of their child. As a result, Michael has been unable to see his child for over three years.

Case Background:

Michael Conover holding son, Jaxon

“Not being able to be with my son, to lead him, and watch him grow is a pain that I wish no one else would have to experience…. My love for my child is never going to go away.” – Michael Conover

Before his gender transition, Michael Conover was in a committed same-sex relationship for nearly a decade with Brittany Eckel. (The case is titled under the parties’ former names. Brittany Eckel took Michael Conover’s last name when they married, but resumed her original last name after their divorce. Michael Conover legally changed his name after the litigation began.) In 2009, before marriage equality for same-sex couples was recognized in Maryland or any nearby jurisdiction, Michael and Brittany decided to have a child together by artificial insemination. They chose an anonymous sperm donor on the basis of physical resemblance to Michael, and when Brittany gave birth to their son Jaxon, the child was given Michael’s last name. A few months later, Michael and Brittany married in nearby Washington D.C., where marriage between same-sex couples had become legally recognized. They parented Jaxon together for the first two years of his life, but later broke up. In their divorce case, Michael asked the court for visitation with their son, but Brittany claimed that they had no children together. The trial court ruled that Michael is a legal stranger to Jaxon because he lacks a biological or adoptive relationship to the child. In August 2015, Maryland’s intermediate appeals court, the Court of Special Appeals, upheld the trial court’s decision.

A longstanding Maryland law provides that when a woman who is not married gives birth to a child, a person who then marries the mother and acknowledges their parentage of the child is considered the child’s other legal parent. But the lower courts ruled that this parentage presumption statute did not apply to Michael’s parent-child relationship with Jaxon. Instead, the lower courts determined that the case is controlled by a pre-marriage-equality decision, Janice M. v. Margaret K., in which the Court of Appeals held that when only one member of a same-sex couple adopted a child, she was the child’s only legal parent even though the other member of the couple had been a “de facto parent” of the child. In a petition for certiorari filed in Michael’s case on October 14, 2015, FreeState Legal has asked the state’s highest court to review whether legal parentage presumptions apply in child custody cases involving same-sex couples, and whether the Janice M. decision should be reconsidered.

Friend-of-the-court (amicus) briefs have been filed in the Court of Appeals in favor of Michael Conover by a wide array of organizations and individuals, including the American Academy of Assisted Reproductive Technology Attorneys and American Academy of Adoption Attorneys, the American Civil Liberties Union, the ACLU of Maryland, COLAGE, FORGE, Lambda Legal, the National Association of Social Workers, the National Center for Transgender Equality, Our Family Coalition, PFLAG, Planned Parenthood of Maryland, the Public Justice Center, Transgender Law Center, the Women’s Law Center of Maryland, and over thirty professors of family law from Maryland and around the country.

FreeState Legal, joined by three other organizations (the ACLU of Maryland, Equality Maryland, and the Public Justice Center), filed a friend-of-the-court brief in support of Michael Conover when the case was in the Court of Special Appeals. FreeState Legal now represents Michael Conover in seeking review in the Court of Appeals.

Case Documents:

Court of Appeals Merits Briefs

Court of Appeals Brief of Petitioner Michael Conover: https://freestate-justice.org/wp-content/uploads/2016/01/Conover-Brief-of-Petitioner-FINAL.pdf

Court of Appeals Brief of Respondent Brittany Eckel: https://freestate-justice.org/wp-content/uploads/2016/02/Conover-2016.02.16-Brief-of-Respondent.pdf

Court of Appeals Reply Brief of Petitioner Michael Conover: https://freestate-justice.org/wp-content/uploads/2016/03/Conover-Reply-Brief-of-Petitioner-FINAL.pdf

Court of Appeals Amicus Briefs

Amicus Brief of the American Academy of Assisted Reproductive Technology Attorneys, Public Justice Center, and the American Academy of Adoption Attorneys: https://freestate-justice.org/wp-content/uploads/2016/02/Conover-2016.02.25-Amicus-Brief-of-AAARTA-PJC-AAAA.pdf

Amicus Brief of the ACLU and the ACLU of Maryland: https://freestate-justice.org/wp-content/uploads/2016/02/Conover-2016.02.25-Amicus-Brief-of-ACLU.pdf

Amicus Brief of Family Law Professors: https://freestate-justice.org/wp-content/uploads/2016/02/Conover-2016.02.25-Amicus-Brief-of-Family-Law-Professors.pdf

Amicus Brief of Lambda Legal: https://freestate-justice.org/wp-content/uploads/2016/02/Conover-2016.02.25-Amicus-Brief-of-Lambda-Legal.pdf

Amicus Brief of the National Association of Social Workers: https://freestate-justice.org/wp-content/uploads/2016/02/Conover-2016.02.25-Amicus-Brief-of-NASW.pdf

Amicus Brief of the Transgender Law Center, National Center for Transgender Equality, Our Family Coalition, PFLAG, COLAGE, and FORGE: https://freestate-justice.org/wp-content/uploads/2016/02/Conover-2016.02.25-Amicus-Brief-of-TLC-NCTE-et-al.pdf