Parenting Rights In A Post-Marriage Equality Act World
Divorce & Family Law Child Custody Divorce & Family Law Divorce Divorce & Family Law Family Law
Summary: Technology continues to outpace the law, and logically will always do so. The repercussions are difficult when it affects the best interest of children. This conundrum of the law and technology is out of step in a custody case here in Michigan. Michigan must update its custody laws.
A Custodial Black Hole:
Parenting Rights In A Post-Marriage Equality Act World
By John J. Schrot, Jr.
Technology continues to outpace the
law, and logically will always do so.
Family Law is not immune from the adverse consequences of playing
catch-up. The repercussions are
especially difficult when it affects the best interest of children.
The United States Supreme Court in
June, 2015, in a 5-to-4 decision declared that marriage is a fundamental right
inherent in the liberty of the person.[1] The Court found that liberty extends to
“certain personal choices central to individual dignity and autonomy, including
intimate choices that define personal identity and beliefs.” The Court further found that marriage safeguards
children and families. Certainly this
decision will affect families in many ways.
Homosexual couples who had children
prior to the passage of the Marriage Equality Act are facing difficulties. In Michigan, before the Act, couples were not
permitted to marry and homosexual couples were not permitted to adopt
together. Therefore, while one parent
would have equal rights to the child (either through adoption or biologically),
the other parent would not. After the
passage of the Act, some of these couples who have adopted or had children
chose to marry, while others did not. Some
of these couples are now divorcing or breaking up, revealing a black hole in
the legal system. Because one party had
not adopted or given birth to the child, that party had no legal claim over the
child.
In fact, the marital parentage
presumption in Michigan, which presumes that one’s husband is the biological
father of any children born during a marriage, is not applicable to homosexual
couples. Since the marital parentage presumption is based on a biological
connection, homosexual couples cannot use the presumption, or, at least, not in
its current incarnation. Similarly, under MCL 722.25, if a dispute between the
parents or between the parents and a third party arises, courts presume that it
will be in the best interest of the child for custody to be awarded to a
parent, absent clear and convincing evidence to the contrary.[2]
It is apparent that the parentage presumption is an essential component of many
custody decisions and it is connected to deciding what is in the best interest
of the child. With custodial arrangements in a post-marriage equality world, courts
will be forced to grapple with the question of “whether parentage is a function
of biology or who’s actually parenting a child.”[3]
We are seeing this conundrum of the
law and technology being out of step in a custody case here in Michigan. The case involves a lesbian couple who used
artificial insemination to produce a family.
The two women were in a committed relationship for 15 years and, after
two children, broke up. One woman is the
biological parent of one child conceived by using a donor egg and a donor
sperm, and the other child was conceived by using a donor sperm through
intrauterine insemination. Neither
parent adopted. The couple had raised
the children since conception prior to the Supreme Court ruling that same-sex
marriage was legal. Michigan law does
not recognize them both as parents. Only
the inseminated woman is recognized as a parent herein, and just of that one
child.
The Michigan case is important
because it addresses the new custody battle including same-sex couples who used
artificial reproductive technology to have children before the Supreme Court
legalized gay marriage. The case also
has ramifications for all conceptions through in-vitro fertilization because of
the lack of laws regulating such procedures.
Michigan’s Legislature has not addressed the technological advancements
in the field of artificial reproductive technology. Michigan will have to update its custody laws
so as to avoid costing same-sex spouses their parental rights. Other states are well ahead of us in this
regard.
There are a handful of states that
legally recognize “intended parents” or “presumed parents,” including
homosexual parents who have no biological connection to a child, but raise and
nurture the child and hold the child out as their own.
Most states have adopted the Uniform
Parentage Act, which is a set of standard rules for defining who the legal
parents are when couples split up.
However, Michigan has not adopted this Act in any way. In addition, it does not recognize “intended
parents”. Michigan’s custody laws
provide parental rights only to those who have a biological connection to a
child, or those who adopt. A sperm donor
or an egg donor can also argue for parental rights in Michigan.
The disenfranchised mother in the
pending Michigan case has argued in part the equitable parent doctrine, which
allows a spouse who is not a biological parent, but who has formed a bond with
the child, to be treated as a parent after a divorce. Traditionally, this doctrine is only applied
to heterosexual parents, but perhaps it should now apply to homosexual marriage
due to its legality and as same-sex adoption is permitted. Michigan has expanded the equitable parent
doctrine to same-sex couples in light of the United States Supreme Court
Opinion in Obergefell.[4]
The equitable parent doctrine rose
out of a matter in which a child was conceived and born during a marriage; the
husband and the child acknowledged the father/child relationship, but husband
was not the biological father; and upon divorce, the husband desired the rights
of paternity and was willing to pay child support.[5] This doctrine allows a third party to
exercise parental rights, including custody and parenting time.[6] However, there have been cases wherein the
Courts have refused to extend the equitable parent doctrine to apply when the
parties are unmarried and a child is born out of wedlock.[7]
The aforementioned Michigan case was
just decided by the Michigan Court of Appeals.[8] The Court concluded that the equitable parent
doctrine does not extend to unmarried copules, irrespective of whether the couple
involved is a heterosexual or a same-sex couple. Therefore, as this doctrine does not apply in
this case, the unmarried partner (non-legal parent or third party) lacks
standing to seek parenting time.[9]
One legal fundamental that
technology must not change is the “best interests” of the child
philosophy. It is imperative that same
be the focus of the Courts. Certainly
biological connection between a parent and child has great meaning, however
that connection should be trumped by the emotional and psychological bond
between a child and an equitable parent.
Fortunately, the pendulum seems to be swinging in favor of keeping
parents in children’s lives, even when there is no biological connection. Michigan needs a case with a set of facts different
from the Lake case, suggesting the parties would have married prior to the
birth of the child but for the ban on same-sex marriage in the parties’ state
of residency; and, then the Court should be required to recognize the
non-biological parent’s parental rights and determine custody and parenting
time consistent with the best interests of the child.
[1]
Obergefell v Hodges, 135 S.Ct. 2588 (2015).
Therefore,
State bans on same-sex marriage were declared invalid under both equal
protection and due process analysis. The
Obergefell decision marked the end of more than two years of intensive
state and federal court litigation.
[2]
Vol. 1, Michigan Family Law, The Institute of Continuing Legal Education
§12.51 (Eds. Hon. Marilyn J. Kelly, Judith A. Curtis, & Richard A. Roane,
2015).
[3]
G.M. Flilisko, After Obergefell: The Supreme Court Ruling Settled the Issue
of Marriage Equality-While Unsettling Other Legal Matters, ABA Journal, 57,
59 (June 2016).
[4]
Kivari v Kivari, Michigan Court of Appeals, April 12, 2016 (unpublished
Opinion).
[5]
Atkinson v Atkinson, 160 Mich App 601, 408 NW2d 516 (1987).
[6]
York v Morofsky, 225 Mich App 333, 571 NW2d 525 (1997); Soumis v
Soumis, 218 Mich App 27, 553 NW2d 619 (1996).
[7]
Van v Zohorik, 227 Mich App 90, 575 NW2d 566 (1997); Killingbeck v
Killingbeck, 269 Mich App 132, 711 NW2d 759 (2005).
[8]
Lake v Putnam, Michigan Court of Appeals, No. 330955, July 5, 2016 (for
Publication).
[9]
The concurring opinion is informative in discussing the possible application of
the equitable parent doctrine if the parties wanted to marry but could not
because of the pre-Obergefell bans on the marriage, thus depriving the
unmarried partner from being considered a “legal” parent.