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Safeguarding the rights of same-sex parents: Brief filed in child visitation case

February 25, 2016: What makes someone a parent? For Michael Conover, it seemed clear enough that J. was his son. Michael and his ex-wife, Brittany, had been together for over nine years, conceived J. via donor insemination, married in Washington, DC, and had been raising J. together. But six months after separating, Brittany abruptly cut off Michael’s visits with his son, moved without providing him her new address, and blocked him from contacting her.

The courts denied Michael’s request for visitation on the grounds that he was not J.’s parent. The sticking point? J. was conceived before Michael’s gender transition and before Maryland lifted its ban on same-sex marriage. The courts refused to apply the statutory presumptions of parentage to the case because the couple that had been in a same-sex relationship. These presumptions typically establish legal parentage for a child born to an unmarried couple without requiring a judicial decree, a finding of paternity via DNA testing, or adoption. Represented by FreeState Legal | Equality Maryland before the Court of Appeals of Maryland in Conover v. Conover, Michael is arguing that Maryland’s presumption of parentage should apply to the matter of legal parentage for the children of unmarried same-sex couples, just as it does to the children of unmarried opposite-sex couples.

In February, the Public Justice Center, American Academy of Assisted Reproductive Technology Attorneys and the American Academy of Adoption Attorneys filed an amicus brief in support of Michael Conover. In the brief, PJC Murnaghan Appellate Advocacy Fellow Tassity Johnson argues that Maryland’s legal parentage presumption for the husband of a wife who conceives a child via donor insemination during a marriage should be read gender-neutrally to apply to non-biological parents in same-sex relationships, including parents who brought their children into the world before Maryland lifted its ban on same-sex marriage. As more same-sex couples use donor insemination, resolving this legal question is critical for protecting the parental rights of tens of thousands of Marylanders. The intent of a couple at the time of conception, the brief contends, should determine legal parentage.

*Note: Conover v. Conover was filed when Michael Conover was Michelle. As such, court documents reference Michelle Conover. Michael’s gender transition is not relevant to the issues in this appeal.

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