Family Law (Continued from page 32)


direction, there are still areas of the law that remain extremely unclear, thereby making the giving of legal advice dif- ficult. Legal issues involving children become easier for the courts when deciding issues of access and custody. Legalizing same sex marriage would provide clearer direction with respect to the division of property.


Custody Controversy Maryland case law has long been es-


tablished with respect to the treatment of a gay or lesbian parent coming out of a straight marriage and the impact on custody and visitation. Beginning with North v. North9 swell v. Boswell, 10


followed by Bo- the court held that a party must establish actual or potential


9 102 Md. App. 1, 648 A.2d 1025 (1993) 10 352 Md. 204 (1998)


11 132 Md. App. 99, 751 A.2d 9 (2000) 12 133 Md. App. 216, 754 A.2d 1087 (2000)


13


171 Md. App. 528 (2006), on appeal and argued September Term 2006.


adverse impact to a child before taking into consideration a parent’s sexual orientation in custody and visitation litigation. The next generation of cases began with S.F. v. M.D.11 erick,12


and Gestl v. Fred- where a third party same sex


partner was given standing to bring an action for custody and visitation. Stem- ming from a lesbian relationship, the appellate court for the first time opened its eyes into the lives of same sex fami- lies and the dynamics when a same sex couple with children separate. Currently pending before the Mary-


land Court of Appeals is Janice M. and Margaret K..13


This case is significant in


that Maryland’s highest court will be analyzing for the first time the Court of Special Appeals adopted concept of a “de facto” parent 14


, as well as the


rights of a third party visitation over the objections of a parent.15


A de facto


parent is a derivative of what was more commonly known as a psychological parent. There are four prongs to meet in order to establish a non biological, non adoptive parent as a de facto parent. The test requires that “the legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important a parent-child bond must be forged”.16 Two men enter into a committed re-


lationship. One having been previously married and divorced in a heterosexual relationship enters the new relationship with his two biological children. His new partner is and will remain a legal stranger to his children, as long as they are not permitted to marry or create a civil union. Same sex marriage would automatically provide for the new male partner to be the children’s step father by operation of law, thereby providing the children with an extra level of legal protection while in the couples care and custody. Some implications of not being able to marry are subtle, for example, the children are not permitted to drive a vehicle on a learner’s permit solely with


14 Maryland adopted the test to determine


whether a person was a de facto parent when it decided S.F. v. M.D., 132 Md. App. 99, 751 A.2d 9 (2000) from cases decided in Wisconsin and New Jersey. The test for determination between a de facto parent and legal parent is the same test set forth in Ross v. Hoffman in 1977 and that has been discussed by the Maryland Courts in many cases since then. See Lipiano v Lipi- ana, 89 Md. App. 571, 598 A.2d 854 (1992); Gestl v. Frederick, 133 Md. App. 216, 754 A.2d 1087 (2000); S.F. v. M.D., 132 Md. App. 99, 751 A.2d 9 (2000); McDermott v. Dougherty, 385 Md. 320, 869 A.2d 751 (2005); Karen P. v. Christopher J.B., 163 Md. App. 250, 878 A.2d 646 (2005).


15


Citing Troxel v. Granville, 530 U.S. 57 (2000) and Koshko v. Haining, 398 Md. 404 (2007)


16


S.F., at 111 (citing V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539 (2000)).


17 There is an exception if the adult is a


“qualified supervising driver” or mentor of the minor.


34 Trial Reporter Winter 2008


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