There has been a dramatic shift in law concerning custody and visitation involving same sex couples. The same line of cases that has reshaped grandparent’s visitation issues also needs to be considered by same sex couples with children.

Janice M. vs. Margaret K., involved opposing parties whose break up followed a committed relationship of 18 years.

Maryland’s highest court reversed decisions by the Circuit Court of Baltimore County and the Maryland Court of Special Appeals granting visitation. The child in question was adopted by one of the women who objected to visitation by the spouse with whom she had become estranged.

“ This gives both biological and adoptive parents rights to prevent visitation of third parties, absent exceptional circumstances.

The lower courts had granted visitation on the grounds that the spouse seeking visitation had become a de facto parent. However, the Court of Appeals has ruled that Maryland does not recognize that concept. Instead, adoptive mother had a constitutional right to direct and govern the care, custody and control of her child and her former spouse was treated as a “third party”. The case was sent back to the Baltimore County Court to determine whether “exceptional circumstances” existed to warrant visitation privileges.

This opinion reflects a dramatic change in the law based on the due process clause of the U.S. Constitution. It gives both biological and adoptive parents rights to prevent visitation of third parties, absent exceptional circumstances.

For purposes of family planning by same sex couples, they are well advised to carefully consider whether both should become parents by going through the adoption process. In situations in which visitation or custody are disputed or potentially disputed, the focus has shifted. Courts will be making their decisions based on the exceptional circumstances test.

This is an evolving area of the law. The Maryland Courts have not yet developed guidelines on what must be shown to meet this standard. The overarching issue will be harm that the child would suffer in the absence of contact with the non parent.