"Neither Argued That It Should"
Others may disagree, but I think this child visitation ruling from Maryland’s highest court is a victory:
At oral argument, we inquired of the parties, whether the fact that the parties were of the same sex in the case before the Court should have any bearing on our analysis. Neither argued that it should. Janice M. would embrace a single test for all third parties and would give no special consideration to same-sex partners. Margaret K., when asked, also did not argue for a different test for same-sex couples. Indeed, she acknowledged that, while there is no explicit legal or statutory authority in Maryland for adoption under the circumstances presented herein, she could have petitioned to become a second-party adoptive parent to Maya.
As background:
The Maryland case involved a woman referred to in court papers as Janice M., who adopted a child named Maya from India during her 18-year relationship with Margaret K. After the women ended the relationship, Margaret petitioned the court for custody and won visitation rights, and Janice appealed the decision.
…
Margaret did not try to adopt Maya and had “never had much interest in the child” until after the breakup.
…
Carrie Evans, policy director of Equality Maryland, the state’s leading gay-rights group, said, “Now, the onus is on the General Assembly to fix this.” She noted that same-sex partners would be most adversely affected by the ruling because they do not have the legal right to marry in the state.
I can’t agree with that last comment. If you want to be a parent, and you have the ability to adopt, then adopt. It’s a bit disingenuous to proclaim yourself a “de facto parent” to the child only after your adult relationship ends.
If Maryland had bigot laws forbidding gays, or gay couples, from adopting, then the analysis would of course be different. As I understand the decision, had the two adults been an unmarried heterosexual couple and the non-adoptive parent had sought custody after the breakup, then the same analysis would apply: Why didn’t you adopt when you had the chance? Fair and equal treatment with no regard whatsoever to sexual orientation. The inability of Maryland gays to marry is irrelevant, at least in this specific fact pattern.
Isn’t that the whole point?
The case, now under remand for additional fact finding, is Janice M. v. Margaret K., No. 122 (Md. Ct. App., May 19, 2008) (PDF – 56 pages)
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Well yes and no.
Not knowing the "real" story (ie. Did Margaret really not have any interest in the child? Why exactly did she not decide to petition for second-parent adoption?), I'm inclined to have some sympathy for Margaret here.
Determining a "fit" home is such a subjective process that many (even married) gay couples face problems adopting a child together. Some social workers and judges either outright refuse to work with them or place them under such extreme scrutiny that almost any couple would fail the test.
Alot of same-sex couples avoid that hassle by only one of them adopting as a "single parent." I could see a scenario in which Janice and Margaret adopted under those circumstances and Margaret (due to the short time it can take a relationship to collapse) didn't have time to apply for second-parent adoption after realizing the relationship was going south. I'm not sure that that is an excuse in court, but at the very least I can be sympathetic to her plight.