It’s getting weird. We are starting to agree on everything lately. You know I am a substantive due process guy, and most especially here when the issue is child-rearing and keeping the government’s considerable nose out of it. Let’s talk some religion soon, we need a friendly disagreement.

Hear! Hear! Mespo, I could not possibly agree more with that statement. This case is a tremendous victory for parental rights. How unfortunate a precedent this could have otherwise been for children who would have been required to maintain relationships with strangers many years beyond the parent’s own relationship. Indeed, every single person in future relationships with the parent would also have some claim to custody and/or visitation with the same children under the former reasoning. That’s a family law nightmare.

JT, you let ideology cloud good judgment on this one.

Moral of the story: As a general rule, either be a biological parent or adopt if you want parental rights.

“The Appellate court remanded on the question of whether “exceptional”circumstances existed. Now, the Supreme Court wiped away the rights entirely.”
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One final note, I read the majority opinion as remanding the case back to the Circuit Court for a determination of the existence of “exceptional circumstances” using the correct standard announced in the case. You suggest otherwise, I think. Am I misreading this last part of the opinion?

The opinion says: “Although the Circuit Court found that exceptional circumstances did not exist, we shall nonetheless remand for rec- onsideration of that matter. The Circuit Court based its
conclusion on an improper standard. Therefore, a remand to that court is necessary, to allow it to determine whether, based on all relevant facts, exceptional circumstances exist.”

While I agree that this opinion appears to prejudice the rights of same sex couples vis a vi visitation for children raised, at least partially, during the union, I do not agree that this was the Court’s ruling. Rather it appears to me that the MD Supremes merely reaffirmed the parents’ (in this case, a parent by way of adoption) role as the paramount decision-maker in the care and raising of the child.

Here, the partner of the parent had not adopted the child though she had lived with the child and her parent for more than 3 years. The Court accepted the substantive due process right of the “parent” of the child to make decisions concerning visitation, and was forced to determine if the partner (legally, a 3rd party to the parent-child relationship*) was a “defacto parent” such that she could petition for visitation in spite of the contrary wishes of the parent. The Court held that absent a showing of unfitness of the parent, the partner would enjoy a status no greater than any other third party, such as the State, or grandparents, or step-parents, etc., who might also seek such a right.

In rejecting the notion of a favored status for de facto parenthood, the Court said:

“Even were we to recognize some form of de facto parenthood, the real question in the case sub judice will remain, whether, in a custody or visitation dispute, a third party, non-biological, non-adoptive parent, who satisfies the test necessary to show de facto parenthood should be treated differently from other third parties. We have not been persuaded that they should be. In other words, where visitation or custody is sought over the objection of the parent, before the best interest of the child test comes into play, the de facto parent must establish that the legal parent is either unfit or that exceptional circumstances exist.”

In fact, both sides agreed in oral argument that the fact of the committed lesbian relationship was unnecessary to the Court’s analysis, and should not be considered any differently that other third party relationship which may give rise to visitation disputes. Id at p.28. Thus, as the Court took pains to say, the lesbian relationship was only incidental to the general rule as applied to all third parties.

I am all for equal rights for G/L couples, but I do not think that lesbian partners should have greater rights that other similarly situated third parties to the parent-child relationship. Further, I believe that the parent’s right to govern who their child visits with is superior to any right of visitation asserted by third parties regardless of their former relationship with the parent, and in the absence of a showing of parental unfitness or other “exceptional circumstances”. As you know, the same rule would have applied to a heterosexual boyfriend with a ceteris paribus relationship with the child involved.

As rare as it is, I must respectfully dissent from your conclusion of a “stinging blow” to gay couples, and support the decision of the Court in reaffirming the paramount status of the parent in matters of child-rearing.

* In this context, a “nonbiological, nonadoptive parent”.

As to the substance, the problems with these cases is that the holdings apply to everyone, not just same-sex couples, and make for a terrible state of affairs. Efforts to carve out a separate jurisprudence for same-sex couples can’t, and shouldn’t, work.

And lest we forget, the day will come when same-sex couples will be able to legally marry, and should the courts go too far in developing law to circumvent the current status, they will be saddled with a lot of really bad law later when the need to circumvent is gone. In retrospect, unprincipled decisions designed to bypass the existing prejudice against same-sex couples will prove to be a nightmare for every parent.

The solution is legislative, not judicial. Same-sex couples must be allowed to marry, and the courts will no longer feel constrained to open back doors when gay and Lesbian couples should be able to walk in the front.