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Lisa Schmidt
Same-Sex Couples, Child Custody, and Michigan's Equitable Parent Doctrine

Same-Sex Couples, Child Custody, and Michigan’s Equitable Parent Doctrine

It has been over a year since the United States Supreme Court legalized same-sex marriage in all 50 states. Now, many gay and lesbian parents are trying to sort out what that decision means for them. Will they be able to get child custody? Is Michigan’s equitable parent doctrine any help to same-sex couples? Two Michigan cases lay out the rules.

For years, LGBT couples in Michigan faced a tough decision: travel out of state to get married or wait until their home would honor their union. Then, in 2015, in a case called Obergefess v Hodges, the United States Supreme Court did what Michigan would not: it struck down Michigan’s statutory and constitutional gay marriage bans as unconstitutional.

But the decade of marriage equality battles on the state level left a lot of complex family situations in its wake. Some married out of state. Others married in their church even though it was not legally recognized. Still others simply waited for the law to change. As some of those families dissolve, the courts are now being called on to sort out what happens to the non-biological parents in same-sex couples? Will they be given child custody or parenting time under Michigan’s Equitable Parent Doctrine?

What It Means to Be a Parent in Michigan

“Standing” is a legal term meaning “the right to sue.” Michigan law says that generally the only person with “standing” to sue for custody is the “natural or adoptive parent of a child.” This creates a problem for same-sex couples trying to resolve custody. In most cases, only one party is the “natural or adoptive parent.” The other is not biologically related. Unless the family has gone through a second-parent adoption, the other parent is a legal stranger to the child. That means under the general rule, the non-biological parent doesn’t have standing to sue for child custody.

Michigan’s Equitable Parent Doctrine

As gay and lesbian parents started to realize this problem, one clear path to standing emerged: the Equitable Parent Doctrine. This rule (originally applied to a heterosexual couple in 1987) says:

“[A] husband who is not the biological father of a child born or conceived during the marriage may
be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.”

Under Obergefell, the Michigan courts are required to treat marriages between homosexual couples the same as heterosexual couples. Late in 2015, the Michigan Court of Appeals decided Stankevich v Milliron, in which it begrudgingly agreed that meant same-sex husbands and wives could use the equitable parent doctrine to assert parental rights to their partners’ children.

Unmarried Couples an the Equitable Parent Doctrine

Stankevich works just fine for couples who got married in Canada or one of the several states that legalized gay marriage before Obergefell. But what about the couples that waited? Can they still use the doctrine?

On July 5, 2016, the Michigan Court of Appeals said no. In Lake v Putnam, the court considered whether the equitable parent doctrine would apply to same-sex couples with romantic relationship existing prior to Obergefell, but no marriage. Finding that Michigan law required the plaintiff to be a “husband” to gain standing, it refused to extend the doctrine to unmarried same-sex couples.

It also limited the equitable parent doctrine to children conceived or born during the marriage. This could create a strange situation in future cases where a spouse has the right to custody of a child born during the marriage, but not that child’s older sibling born before the couple was allowed to marry.

Religiously Married Couples Still Raise Questions

So what about the people who fall in the middle of the scale? Couples who were married in their religious tradition, but whose marriages were not legal when and where they were performed?

Lake seems to leave the door open a crack for these couples. The court said in its opinion:

In fact, plaintiff has not presented any evidence to support a conclusion that she and defendant would have been married but for Michigan (or Florida, where the parties also resided for a period of time) law. Plaintiff has not provided any evidence reflecting the parties’ intent to marry, the parties never made an effort to marry in another jurisdiction, the parties chose not to have plaintiff adopt the child in Florida despite being legally able to do so, and defendant adamantly denies that she would have ever married plaintiff even if legally able to do so.

The possibility remains that a religiously married couple could distinguish their case from Lake by arguing they did everything Michigan law allowed them to do to preserve their union. Given the line the court has drawn in the sand, it is unclear whether this argument will win, but it is still an avenue to be pursued.

When the U.S. Supreme Court legalized gay marriage in 2015, it was the beginning, not the end, of the fight for same-sex couples in family court. It is up to skilled litigators, brave parents, and well-trained judges to sort through just how gay and lesbian parents will be allowed to assert their rights. Until then, everyone will be working to sort through the shades of gray.

Lisa J. Schmidt is a family lawyer for Schmidt Law Services, PLLC, in Ferndale, Michigan. She focuses on helping LGBT parents and couples protect their families. If you need help negotiating this changing area of the law, contact Schmidt Law Services today for a free consultation.

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