State Laws and Legislation

Maryland Custody and Visitation Law

Custody and Visitation for Gay, Lesbian and Bisexual Parents
Maryland courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the child(ren).
There are no explicit provisions in state law regarding the factors that courts should consider when making custody and visitation determinations. The “best interests of the child” have been developed in Maryland case law.

The factors that a court does consider when making custody and visitation determinations include: “The fitness of the persons seeking custody; the adaptability of the prospective custodian to the task, the age, sex and health of the child; the physical, spiritual and moral well-being of the child; the environment and surroundings in which the child will be reared; the influences likely to be exerted on the child, and, if he or she is old enough to make a rational choice, the preference of the child. It stands to reason that the fitness of a person to have custody is of vital importance. The paramount consideration, however, is the general overall well-being of the child.”

Additional factors that the court articulated in Boswell v. Boswell  include: “The desire of the natural parents and any agreements between them; … the potential for maintaining natural family relations; … material opportunities affecting the future life of the child; … the residences of the parents and the opportunity for visitation; … the length of the separation of the parents; … whether there was a prior voluntary abandonment or surrender of custody of the child.”

In 1998’s Boswell v. Boswell, a gay father had a restriction placed on visitation with his children: he was prohibited from having his same-sex partner or “anyone having homosexual tendencies or such persuasions, male or female, or with anyone that the father may be living with in a non-marital relationship.” The appeals court was asked to clarify what standard should be used in restricting a parent’s visitation rights. The appeals court stated that there must be a finding of adverse impact on the child, and then the court must find a nexus between the child’s emotional and/or physical harm and the contact with the non-marital partner. In addition, “If no clear, direct connection is found, then the non-custodial parent’s visitation rights cannot be restricted.” Additionally, the court reminded lower courts that: “The only relevance that a parent’s sexual conduct or lifestyle has in the context of a visitation proceeding of this type is where that conduct or lifestyle is clearly shown to be detrimental to the children’s emotional and/or physical well-being.”

In a 1994 case, North v. North, a gay father was denied his request to have overnight weekend and extended summer visitation. Furthermore, a restriction was placed on Mr. North’s daytime visitation with his children: he was not permitted “to expose the minor children of the parties to events or functions espousing his alternative lifestyle or overtly display or discuss said lifestyle with his children.” The appeals court found that these restrictions did “not follow from the findings made by the court and does not, and cannot, achieve the only objective asserted for it by the court. It is therefore arbitrary, violative of fact and logic, untenable.”

Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. Maryland state law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.

Custody and Visitation for Same-Sex Co-Parents
Maryland courts will allow a former same-sex partner (with no legal or biological relationship to the children) to petition for visitation.

In a 2006 case, Marks v. Kahlor, a former domestic partner, Margaret, petitioned for custody and visitation of the child who was adopted by her former partner, Janice, during the relationship. The child was adopted from India and Margaret was unable to add her name to the adoption petition. Margaret argued she was a de facto parent and was entitled to custody and visitation. The Court of Special Appeals ruled that exceptional circumstances have to exist for a court to award custody to a third party. The court found that exceptional circumstances did not exist in this case. However, the court affirmed the order granting Margaret visitation.

In a 2000 case, Gestl v. Frederick, Lisa, the biological mother, moved from Tennessee to Maryland and gave birth in March 1993. In July 1993 she moved in with Donna. The relationship ended in 1998 and Lisa moved back to Tennessee. Donna petitioned a Maryland court for custody and visitation. The Maryland court dismissed the petition, stating they did not have jurisdiction to hear the matter. The Court of Special Appeals found that the trial court had erred because under Maryland law, Donna, as a third party, could petition for custody and visitation rights, whereas in Tennessee she could not.

In another 2000 case, S.F. v. M.D., S.F., the former domestic partner of M.D., petitioned for custody or visitation of a child born during their relationship. The trial court shelved the custody issue, as S.F. did not present evidence or argue that she was entitled to custody. On the visitation issue, the trial court found that visitation between the child and S.F. resulted in significant behavioral problems for the child, and when visitation was terminated completely, the problems disappeared. As a result, the trial court found it was in the best interest of the child to not have visitation with S.F. The special appeals court found that the trial court had acted within its discretion in making this determination.

Additionally the Specials Appeals Court ruled that when Maryland courts are determining whether an individual qualifies as a de facto parent the standard put forth In re Custody of H.S.H.-K. should be used. These include: “1) That the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.”

Citations: Hild v. Hild, 157 A.2d 964 (Md. 1960); Boswell v. Boswell, 721 A.2d 662 (Md. Ct. App. 1998); North v. North, 648 A.2d 1025 (Md. Ct. of Spec. App., 1994); Gestl v. Frederick, 754 A.2d 1087 (Md. Ct. Spec. App. 2000); S.F. v. M.D., 751 A.2d 9 (Md. Ct. Spec. App. 2000); In re Custody of H.S.H.K., I533 N.W.2d 419 (Wisc. 2000); Marks v. Kahlor, 2006 Md. App. LEXIS 252 (Md. Ct. Spec. App. 2006).

Updated: Mon, November 20, 2006 - 12:00:55