The Michigan Marriage Equality trial started Tuesday in the United States District Court in Detroit. It is scheduled to continue for 8 days and is focusing so far on the ability and challenges for LGBT couples raising children. The Free Press summarized Wednesday’s testimony by University of Michigan law professor Vivek Sankaran, saying
“When a parent in a same-sex relationship dies, the surviving partner faces a quagmire of legal hurdles to gain custody of any kids.”
If a spouse in a heterosexual married couple dies, the other spouse is presumed to be the legal parent of the children born or adopted during that marriage. He or she takes immediate custody of the children and the court never gets involved.
Where the child’s parents are not married, as long as the father paternity has been established, when the mother dies custody reverts to the father automatically.
But there is nothing automatic for same-sex couples. Michigan’s Adoption Code has been interpreted to prevent 2 unmarried people from adopting the same child. Because gay marriage is illegal in Michigan, same-sex parents are necessarily single. Children adopted by the couple are therefore legally only the child of one partner. Children born to either partner from previous relationships may have a second legal parent elsewhere. In either case, the non-custodial partner is considered a legal stranger to the child.
So when a lesbian or gay parent dies, one of two things can happen to the children:
- They are removed from the home where they were raised and sent to live with their other legal parent; or
- They become wards of the State.
The surviving partner must then petition the Probate Court to have her (or his) children placed back with her. She must undergo scrutiny as to her fitness as a parent and the condition of her home, and will often be assigned a probationary period during which the court will supervise her parenting choices and skills. Some of these complications can be overcome by designating a guardian in the custodial partner’s estate planning documents, but not all of them.
Things are worse for the partner when there is a 2nd legal parent. Michigan’s Child Custody Act assumes that it is in the best interests of a child to be placed with his or her legal parent. The partner in those cases will have to overcome that assumption in order to get custody of his or her children back. If the 2nd legal parent has been involved with the children at all (exercising parenting time or paying support), the partner is not likely to succeed.
The death of a long-time partner is a traumatic experience. But for same-sex couples in Michigan, death is only the beginning. Maintaining custody of the couple’s children can be a hard fight, especially when there is another legal parent involved. If you are in a same-sex relationship schedule a consultation with Attorney Lisa J. Schmidt to discuss your rights and options regarding custody.