For more than ten years legislators in Maryland have kicked around the idea of legalizing same sex marriage, prohibiting same sex marriage, and providing for domestic partnerships. During the 2012 legislative session Maryland’s General Assembly passed a bill allowing same-sex marriages and the bill was signed into law by the governor. The law then went to the voters of Maryland as a referendum in November 2012 to determine if it would be upheld and it was.

However, the legalization of same-sex marriage in Maryland is only the beginning of the issue, not the end. Maryland law will need to catch up to accommodate this recent change, leaving judges in the meantime on their own to interpret and apply the statutes currently in existence to the new situations that are beginning to occur. For example, due to the current statutory definition of sexual intercourse in Maryland, sexual relations between same-sex partners, even if one of the partners is married to someone else, do not meet the statutory definition of adultery!

Maryland has recognized legal same-sex marriages performed in other states for some time; therefore it is not as if there is no legal precedence available. However a case that was recently filed in the Circuit Court for Calvert County highlights how a seemingly typical issue that often arises can become hotly contested matter, giving rise to compelling legal briefs, oral arguments, and much consideration prior to a judge’s ruling.

In the above referenced case a Calvert County judge had to issue a ruling on whether a California court order finding the non-biological same-sex partner (who was married to the biological mother of the child) to be the “presumptive parent” for the purposes of establishing custody of a child was entitled to Full Faith and Credit (valid) in Maryland. The answers seems simple because under the legal doctrine of comity a valid court order entered in one state is generally valid in another state; this is also commonly referred to as legal reciprocity. In this case however biological mother argued that Maryland law does not have a statute that recognizes a “presumptive parent”, or de facto parent, and that in order to have standing to sue for custody in Maryland the person must be the legal parent of the child or must have adopted the child. If the person is not the legal or adoptive parent of the child then they must proceed as a third-partyunder Maryland law.

The legal relevance is that in Maryland custody cases a third-party (non-parent) must prove that both biological parents are unfit or that exceptional circumstances exist before a best interest of the child analysis can even begin. In other words, you have to clear a huge hurdle before you can even be in the race. In the referenced case, biological mother’s argument was that non-biological mother could be nothing more than a third-party under Maryland law. If the judge agreed with this argument, then non-biological mother would have an additional burden of proving biological mother unfit or that exceptional circumstances existed prior to the court allowing the case to proceed to the required best interest of the child analysis. However, the Calvert County judge did not agree with biological mother’s argument and instead ruled that the California Order is valid in Maryland.

As always, we here at Delaney & Keffler, LLC will keep up with legal developments and changes in the law to help you understand, assert and protect your legal rights. Contact us today at 410-535-3476 (FIRM) or welcome@delaneykeffler.com for a free consultation.