The public face of the marriage equality movement has always been about the dignity and respect due to gay and lesbian couples. Behind the scenes, though, there are thousands of state and federal laws that are affected by expanding the definition of marriage, including the Michigan Revocation of Paternity Act. In the next few years, the courts are going to be asked to figure out how the law works in same-sex marriages.
The Michigan Revocation of Paternity Act has been challenging family law attorneys and judges since it came into effect in 2012. Among other things, it allows the biological father of a child to ask the court to give him parental rights instead of the mother’s husband.
Or make that wife.
Now that Michigan must recognize same-sex marriages, the gender of a person’s spouse can no longer be assumed. The up-side to this decision is that now a mother’s wife is entitled to the same assumption of parentage for children conceived or born during the marriage.
That’s a big deal. For a long time, lesbian couples have had to make the hard decision of which partner was going to be the legal parent. Now, as long as the couple is married, both wives will be assumed to be parents. (Strangely, the same assumption won’t apply to gay couples since the statute bases parentage on the mother’s spouse.) If the couple later divorces, the presumed mother will have the same rights to custody, child support, and parenting time as the mother who carried the child to term.
Revoking a Parentage Assumption
The Revocation of Paternity Act contains a dark lining on that silver cloud. If a biological father decides to file a Revocation of Paternity action, it will be easy for him to prove that the presumed mother is not the biological father of the child.
Many lesbian couples choose to ask a friend or family member of the non-carrying partner to donate the sperm needed to conceive their child. If everything goes as planned, this provides a better support network and a male role-model for the child.
When things don’t go as planned, though, the biological fathers of these children may try to take the families to court. The Revocation of Paternity Act requires biological fathers to have acted without knowledge that the mother was married. Given the confusion of the last several years regarding the legal status of gay marriage, biological fathers could argue that they didn’t know whether a marriage was valid, so they should qualify under the statute.
Known Sperm Donor Contracts
To protect their families, lesbian couples turning to loved ones for their family planning should use a Known Sperm Donor Contract. This agreement will make clear that the biological father is waiving his parental rights to the child and will agree to cooperate with the couple in future adoption or custody actions. It may seem unnecessary at the outset, but when relationships change it will give the family a defense against an estranged sperm donor.
The next several years promise to give family lawyers and judges a lot to think about as they figure out how marriage equality affects the other laws affecting children and parents’ rights. To keep their families from being the guinea pigs, lesbian couples should take proactive steps to make everyone’s role clear and ask sperm donors to waive whatever parental rights a court might decide they have.
Lisa J. Schmidt is a family attorney at Schmidt Law Services, PLLC in Ferndale, Michigan. She specializes in LGBT and non-traditional family issues. If you or someone you know are planning a family or facing a custody challenge, contact Schmidt Law Services today for a free consultation.