Tuesday, April 13, 2010

Maryland misses the chance to protect the children of same-sex couples

Two years ago, the highest court in Maryland ruled that the state did not recognize "de facto" parents. Thus, when a same-sex couple raises a child as two parents and then splits up, only the parent who gave birth to the child or adopted the child has the right to custody; the other parent is a legal stranger, no different from a relative, friend, or neighbor. The court's opinion invited the Maryland General Assembly to change the state's law through a statute.

Well, the General Assembly session ended yesterday without passing a promising bill that defined "de facto" parents and gave them the right to custody and visitation and the obligation to pay child support. Both the Senate and the House held hearings on the bill, which very much resembled legislation enacted in Delaware last year.

The votes to pass the bill were probably there, but it never made it to a floor vote. After Maryland Attorney General Doug Gansler issued an opinion that the state recognizes same-sex marriages validly performed elsewhere (which came coincidentally on the same day the Senate held the hearing on the "de facto" parent bill), a state senator indicated that if the "de facto" parent bill came to the floor he would submit an amendment stating that Maryland does not recognize same-sex marriages from elsewhere; then every senator would have had to go on record on that issue. With that threat at hand, bill sponsor Senator Jamin Raskin pulled the bill from consideration.

The "de facto" parent bill was not only about children of same-sex couples, and it had support from organizations and individuals seeking to protect the relationships all children have with the people they consider their parents. But apparently the subject of same-sex marriage was considered close enough to the subject of the bill that the amendment would have been procedurally proper, and that was enough to kill the bill.

The politics of same-sex marriage derailed this year's efforts. The children of Maryland go unprotected for another year.

1 comment:

kisarita said...

Professor, these are not always about children's rights. Depending on how the de facto, or holding out doctrine is applied, they could be very detrimental to children's welfare, setting them up to be shuttled back and forth between 2 households in conflict, one of whom is no biological relation at all.
Certainly a 10 year relationship is one thing, but some non- bio parents have attempted to make the same argument with children who were only a few months old.