Recently, Rosie O’Donnell and her estranged wife, Michelle Rounds, were in a child custody dispute regarding their two year old daughter. While this dispute created much stir among the tabloids, there were some interesting legal issues at play here regarding same sex couples and their rights and obligations with regard to children.
The Court of Special Appeals of Maryland recently decided the case of Conover v. Conover, one of the first same-sex divorce cases reviewed by the appellate court. In that case, prior to their marriage, Brittany and Michelle had decided to have a child via artificial insemination. This child was conceived in 2009. In March of 2010, Washington DC began to start issuing marriage licenses to same sex couples. Shortly thereafter, Brittany gave birth to a son, whose birth certificate identified Brittany as the mother and no one as the father. Subsequently the parties got married. However, Michelle never adopted the son.
Eventually the parties separated, and a dispute arose as to Michelle’s rights to visitation (and presumably obligation to pay support) with regard to the child. Brittany claimed that Michelle had no rights, while Michelle claimed that she should be treated as a parent and given visitation. In this case, the Court concluded that she was not a parent and had no rights. The Court focused a great deal on the fact that the parties were not married until after the child was born, even though they had the opportunity to be married beforehand. This case likely would have been decided differently if the parties had been married before the birth of the child, because a child born to two people when they are married is presumed to be the child of both parties to the marriage.
Ultimately, however, Michelle was treated similarly to any person other than a parent who tries to seek visitation. Generally speaking, it is unavailable except in exceptional circumstances. Unfortunately, for Michelle, these exceptional circumstances did not exist and Michelle was not entitled to any visitation with the child.