Baltimore County Circuit Court rules same-sex ex to win visits

Daily Record, The (Baltimore), Oct 8, 2008 by Caryn Tamber

In perhaps the first decision of its kind since Maryland's top court nixed the de facto parent doctrine, a judge has ruled that a woman has the right to visit her ex-girlfriend's son.

An attorney for the child's mother, Melissa B., vowed to appeal the decision and, in the meantime, to seek an order that will delay the visits while she fights the ruling.

Still, Larissa S., who won the right to see Melissa's 7-year-old son, said she is "beyond excited" to see the boy for the first time in more than three years. Her attorney, Alyson D. Meiselman, said she is unhappy that the reunion will not be immediate.

"I believe that [Melissa] has delayed this event for three-and-a- half years and she's about to try to delay it again by asking for a stay," said Meiselman, a North Potomac solo practitioner.

As other states have defined it, a non-parent is considered a de facto parent if she has lived with and performed parental functions for the child, if the legal parent has consented to the relationship and if there is a parent-child bond between the child and the third party.

Courts elsewhere have established that a de facto parent who wants to see a child over the legal parent's objections only has to prove in court that visitation would be in the child's "best interest."

Last May, the Court of Appeals held in Janice M. v. Margaret K. that Maryland does not recognize de facto parenthood, meaning that all non-parents who want visitation have to show "exceptional circumstances," a much higher standard than best interest.

All aspects

Baltimore County Circuit Court Judge Lawrence R. Daniels held Tuesday that Larissa has shown exceptional circumstances, meaning she can visit the child even though Melissa does not want her to.

Daniels noted that Larissa had been involved with "all aspects of parenting," including selecting the boy's name, feeding him and toilet training him. He recalled testimony at an earlier hearing about Larissa "coming home at night, him running up to her, throwing his arms around her legs and saying, 'Mommy, Mommy, you're home,' or something to that effect."

Though Melissa's lawyer said that the boy is doing well, Daniels said he must be affected by losing Larissa.

"I have to believe ... eliminating [Larissa] from [the child's] life would have to have a deleterious effect on [him]," Daniels said.

Also Tuesday, Daniels denied Larissa visitation with Melissa's younger son, conceived while they were a couple but born after they had broken up. Though Larissa had visited with the younger child for the first year-and-a-half of his life, Daniels compared her relationship with him to that of "a next-door neighbor who used to baby-sit on a regular basis."

Melissa's lawyer, Steven L. Tiedemann, criticized the decision on the older child.

"The judge is absolutely wrong," Tiedemann said. "The only exceptional circumstances were the same circumstances that gave her the de facto parent status, which is no longer enough."

Melissa declined to comment.

According to court briefs and interviews, Larissa and Melissa were in a lesbian relationship when Melissa became pregnant through sexual intercourse with a man. Larissa has testified that the two women had discussed having children and chose the man because he shared Larissa's Hispanic heritage; Melissa's court filings have portrayed the pregnancy as Melissa's decision, not a joint choice. The child was born in 2001.

Melissa became pregnant by the same man again, but by the time she gave birth to the child, another boy, in 2003, she and Larissa had broken up.

Larissa had never adopted the children, but she saw both regularly until March 2005. When Melissa stopped the visitations, Larissa asked the Baltimore County Circuit Court to intervene.

Changed landscape

After a 2006 trial, Judge Daniels ruled that Larissa was the de facto parent of the older boy but not the younger one. He denied her visitation rights with both children on the grounds that it would damage their sibling relationship.

In August 2007, the Court of Special Appeals held that Larissa is the older boy's de facto parent and, as such, should get visitation rights, but that she had no special relationship to the younger boy.

The Court of Appeals' May 2008 Janice M. decision striking down de facto parenthood changed the landscape for Larissa and Melissa.

Meiselman, Larissa's lawyer, said she believes Larissa's is the first Maryland case since Janice M. in which a trial judge has found that someone who would have met the old de facto parenthood standard also meets the exceptional circumstances test.

Stephen Drazin, who represents Janice M. in her continuing fight to avoid letting her ex-partner Margaret K. visit Janice's daughter, said he does not believe Daniels' decision will affect his case or others like it. Whether a third party can show exceptional circumstances is particular to each case, Drazin said.

For her part, Larissa said her biggest regret is that Daniels did not grant her visitation back in 2005, when she first filed suit. She said litigation like hers could be prevented "if people would act like adults and continue to have the children's best interests at heart."