Now that LGBT couples are guaranteed the same fundamental right to marry as straight couples, lawyers and courts across the country are wrestling with what that means for the families of gay and lesbian couples. Here in Michigan, a court has granted access to the “equitable parent doctrine” – a tool to protect the rights of the non-biological parent. Find out if your family is protected or if you fall in the big loophole left open by the court.
Jennifer Stankevich and Leanne Milliron got married in Canada in 2007. They were pregnant through artificial insemination. The baby was born to the couple after they were married, and everyone lived together happily until 2009.
Over time, they found they could not agree on parenting time. Suddenly, Stankevich, who had fully participated in parenting their baby, was denied access. So she did what any parent would do – she asked the court to enter an order confirming she was a parent and determining custody, parenting time, and child support. But that was before the Supreme Court decided Obergefell v Hodges. The trial court said Stankevich didn’t have authority (standing) to ask for those things since she was not a legal parent of the child.
The case went up on appeal, where it sat and waited for DeBoer v Snyder to make its way up to the Supreme Court. Then once the Court decided that gay and lesbians had a fundamental right to marry, a Michigan Court of Appeals reviewed the case.
The issue is whether a non-biological parent of a child can request custody, parenting time, and child support under the “Equitable Parent Doctrine.” An equitable parent is someone who has acted so much like a parent to be seen as a natural parent if:
- The parent and the child mutually acknowledge their relationship or the biological parent has cooperated in developing that relationship;
- The non-biological parent wants to have parental rights; and
- The non-biological parent is wiling to pay child support.
Until now, the Equitable Parent Doctrine had only ever applied to the husband of a child’s mother. In fact, earlier court cases said that unless a man was married to the mother he could not use the doctrine no matter how long he had been acting as a parent. In Stankevich v Milliron, the Court of Appeals applied exactly the same standard, except for the first time it removed the gender-specific language. It ruled that Stankevich could use the equitable parent doctrine to get custody, parenting time, and child support because she was married to the child’s mother and had demonstrated a strong parental relationship with the child.
This is a big step forward for the thousands of LGBT couples who have gotten married in other states or countries, or who have hurried to get married in the months since Obergefell. It allows parents to protect their rights even if they are not related to the child by blood. But it leaves a huge loophole: you have to be married. Many, many couples conceived children even though they couldn’t be married in their home states. Under this decision, those couples will be prohibited from protecting their families should the worst happen.
Family planning continues to be essential for LGBT families. Gay and lesbian couples need to include a family attorney in every step from engagement to childbirth to divorce. Otherwise they could find their families ripped apart because of laws that were not written in consideration of their situation.
Lisa J. Schmidt is a family law attorney at Schmidt Law Services, PLLC, in Ferndale, Michigan. She focuses on LGBT and non-traditional family law issues. If you need family planning assistance, contact Schmidt Law Services today for a free consultation.