One complicating factor for same-sex parents with children seeking a divorce in Maryland or in the District of Columbia is the fact that only one parent is considered a biological parent. For this article, we will discuss visitation rights, assume that the children were not adopted and also assume that the Maryland divorce court or the DC divorce court awarded sole custody to the biological parent.
For our purposes, we will NOT assume that sole custody was awarded for any “bad” reason. Maryland/DC divorce courts do not need to find a parent to be “unfit” to award sole custody to one parent or the other. The divorce courts will make a determination based on the “best interests” of the children and weigh many factors in deciding what is in the best interests of the children. Distance of one parent from the children and lifestyle continuity are two very important factors. Thus, sole custody might be granted if the children have lived in the Maryland/DC area for most of their lives, but one parent has a new job on the West Coast. That situation might cause a Maryland or DC divorce court to award sole custody to the parent remaining here. So, assuming no joint custody, what about visitation rights?
Under both Maryland divorce laws and DC Divorce laws, a biological parent has constitutional and legal rights with respect to raising children. This includes the ability to deny visitation to various “third parties” like grandparents, aunts, uncles and former same-sex romantic partners. Thus, if the biological custodial parent agrees or permits visitation rights, then a Maryland divorce court or a DC divorce court will likely agree as well (assuming there are no reasons that the divorce court would object).
But, if the biological custodial parent does NOT permit or agree to allow visitation, then matters become more complicated in terms of visitation. The best legal strategy is to use a doctrine called de facto parentage. Both Maryland and DC have adopted this legal concept (although the laws differ slightly). Proving that a non-biological person is a de facto parent is complicated and fact intensive. So, you will need a talented Maryland/DC divorce team. If you have questions about LGBT visitation rights, call us here at the Law Offices of Thomas Stahl. Call for a consultation at (410) 696-4326 or (202) 964-7280. We have offices in Columbia, MD and Washington, DC.
To show a de facto parent relationship, essentially, these are the types of facts that must be shown:
- The biological parent consented and encouraged the relationship between child and the non-biological spouse
- The non-biological spouse lived in the same household with the children
- The non-biological spouse forged an emotional bond with the children
- The non-biological spouse performed “significant parental functions” for the children
- The non-biological spouse has taken on duties that are consistent with “parenting”
- And more
If these types of facts can be shown, then a Maryland/DC divorce court would take seriously a request for visitation rights even over the objection of the biological parent.
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 Maryland and the District of Columbia. Schedule a consultation today or call us at (410) 696-4326 or (202) 964-7280. We have offices in Columbia, MD and Washington, DC.