With same-sex divorces, if there are children involved, issues of child custody, visitation and support will be complicated. This is not unique to same-sex marriages and divorce. In this article, we will focus narrowly on the question of child support (as distinct from custody and visitation) where one spouse is not biologically related to the child/children and has not adopted the child/children. Child support is, of course, money paid by the non-custodial parent to the parent having physical custody of the child/children.
So, can a non-biological and non-adoptive parent be required to pay child support by the divorce court? The answer is “yes” – or at least, very likely to be “yes.” The law in this area is evolving rapidly. At the moment, there is no determinative judicial ruling here in Maryland and no laws have been enacted on this specific question. But, likely, Maryland divorce courts can order child support payments based on the de facto parent doctrine.
The general rule – proof of paternity and maternity required
In Maryland, the general rule is that, before child support can be ordered, there must be proof of adoption or of a biological parent relationship with the child. In practice, this means proof of the father’s paternity and proof of paternity is required before child support payments can be ordered. As noted here, “[a] court can’t order child support without legal proof of paternity.”
For obvious reasons, matters become complicated when dealing with same-sex couples. With a same sex couple involving males, paternity can only be shown for one spouse. No paternity can be shown for the other. Thus, under the general rule, a Maryland divorce court could not order the non-biological father to pay child support. The same is true for a same sex female couple. For that relationship, no paternity can be shown at all. Thus, under the general rule, a Maryland divorce court could not order the non-biological mother to make child support payments.
The de facto parent doctrine
However, Maryland now recognizes what is called de facto parent doctrine. See Conover v. Conover, 450 Md. 51 (2016). There are no reported cases yet, but it is conceivable that proof of a de facto parent relationship could be used as the basis for ordering child support payments from a non-biological, non-adoptive parents in a same-sex marriage.
In Maryland, a de facto parent exists where a person claims custody of a child “… based upon the party’s relationship, in fact, with a non-biological, non-adopted child.” When a person seeks to prove status as a de facto parent, that person must prove the following:
(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
Given the legal trends, as noted above, if a one spouse in a same-sex marriage can prove that the other non-biological, non-adoptive parent is/was a de facto parent, a Maryland divorce court might consider that sufficient to order child support payments.
Maryland and DC Divorce and Family Law Attorneys
For more information, contact the seasoned and experienced Maryland and DC divorce, family law and estate planning attorneys at The Law Offices of Thomas Stahl. We have the experience and expertise you need. We also have proven experience with divorce and family law for the District of Columbia. Schedule a consultation today or call us at (443) 331-2770.
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