Michigan Supreme Court Extends Equitable-Parent Doctrine to Same-Sex Couples

A divided Michigan Supreme Court ruled on July 24 that the “equitable-parent doctrine” should be extended to allow standing for a same-sex partner to seek custody of a child conceived and born before the U.S. Supreme Court decided in Obergefell v. Hodges, 576 U.S. 644 (2015), that same-sex couples have a constitutional right to marry.  Pueblo v. Haas, 2023 WL 4717119, 2023 Mich. LEXIS 1124. However, to qualify for standing, the claimant will need to prove they would have married had state law permitted them to do so.

Carrie Pueblo and Rachel Haas were in a “long-term committed relationship, or domestic partnership, from the early 2000s until the early 2010s,” wrote Justice Megan K. Cavanagh for the court.  Legal marriage was not available to them in Michigan.  They participated in a “private civil commitment ceremony in June 2007 that was presided over by a priest and involved the exchange of rings and vows to take one another as life partners.”  Shortly afterward, they decided to have a child, and Haas became pregnant through donor insemination, bearing a child in November 2008.  The women separated several years later.  Pueblo, who had been a de facto parent of their child, continue to have contact until Haas cut off her contact in 2017 and demanded that she cease contact with the child.

Pueblo filed suit in Kalamazoo in 2020, invoking the state’s Child Custody Act, seeking joint custody, parenting time, and child support.  Haas challenged the suit on standing grounds, pointing out that Pueblo had no biological or adoptive connection to the child.  The trial court granted summary judgment to Haas on that basis, and the state’s Court of Appeals affirmed in an unpublished per curiam opinion in 2021.  The Michigan Supreme Court granted leave to appeal to address the question whether, in light of Obergefell, they should extend the equitable parent doctrine, which has previously been confined to different-sex couple situations, to same-sex couples, and if, so, what the “parameters of that extension should be.”  See 510 Mich. 936 (2022).

“Pueblo argues that she has standing to seek custody under the equitable-parent doctrine,” wrote Justice Cavanagh.  “We agree that Pueblo should have the opportunity to prove that she is entitled to assert her rights as an equitable parent.”  Under the existing doctrine, “a spouse who is not a biological parent has standing to seek custody of a child born or conceived during their marriage when (1) the would-be equitable parent and the child acknowledge the parental relationship or the biological or adoptive parent has cultivated the development of the relationship over a period of time, (2) the would-be equitable parent desires to have the rights afforded a parent, and (3) the would-be equitable parent is willing to pay child support.”  The court of appeals in this case rejected Pueblo’s equitable-parent argument on the ground that she was not a legal spouse of Haas, applying existing Michigan precedent.

Obergefell held that same-sex couples are entitle to the same “constellation of benefits” associated with marriage that different-sex couples enjoy.  Therefore, it would follow, same-sex couples are entitled to the benefit of the “equitable-parent doctrine” because that is part of the “constellation of benefits” associated with marriage in Michigan.  “As a matter of equity and constitutional law,” wrote Justice Kavanagh, “we are compelled to treat same-sex couples equally.  Same-sex couples have the constitutional right to marry and to all the attendant benefits of marriage.  Withholding the benefit of the equitable-parent doctrine from couples who were previously unconstitutionally prohibited from marrying would perpetuate the harms identified in Obergefell:  that denying same-sex couples the same legal treatment in marriage and all the benefits afforded to opposite-sex couples demeans them, stigmatizes their children and families, and teaches society that they are inferior.  Given the ruling in Obergefell, we cannot justifiably deny same-sex couples – who would have married before the arrival of the child but for unlawful prohibitions – the privilege of invoking the equitable-parent doctrine because of their sexual orientation.”

But, the extension of the doctrine is narrowed to certain requirements.  “Therefore,” wrote Kavanagh, “we narrowly extend the equitable-parent doctrine to Pueblo and other similarly situated persons who were unable to marry during their same-sex relationships because of discriminatory and unconstitutional Michigan laws but who nonetheless developed de facto parent-child relationships with the children born or adopted by their same-sex partners during the time they would have otherwise been married.”  The court stated that the person claiming the benefit of this doctrine must show that “the parties would have married before the child’s birth or conception but did not because unconstitutional laws prevented them from doing so.”    The court found persuasive precedent for applying this test in In re Madrone, 271 Or. App. 116, 350 P.3d 495 (Oregon Court of Appeals, 2015), emphasizing that the burden to show that the parties would have married would take care of the problem of unmarried heterosexual couples who were legally capable of married but chose not to do so.  Based on Pueblo’s factual allegations, it appears that on remand she will likely be able to meet the test based on the Madrone criteria, but it is up to the trial court to determine the facts, which were not previously determined in this case because the summary judgment was based solely on lack of standing.  However, wrote Justice Kavanagh, “Pueblo has alleged facts entitling her to a threshold determination on whether the parties would have married but for Michigan’s unconstitutional bar on same-sex marriage under the inquiry set forth above.”

Justice Kavanaugh also commented, in conclusion, that if Pueblo meets the burden of showing she is entitled to the benefit of the equitable-parent doctrine, “she has the right to a best-interest evaluation for custody and parenting time.”  The court of appeals decision is reversed and the case remanded to the trial court “for further proceedings consistent with this opinion.”

Concurring, Justice Kyra H. Bolden observed that the extension of the doctrine raised a host of questions and urged the legislature to revise the state’s custody laws to provide answers.

Justice Brian Zahra dissented in an opinion joined by Justice David F. Viviano. He argued that the plaintiff’s brief had failed adequately to address the constitutional issues raised by her claims.  “While I am sympathetic toward plaintiff’s circumstances,” he wrote, “extending the equitable-parent doctrine, a marriage-based doctrine that rests on shaky legal grounds, is inappropriate and ill-suited to provide plaintiff the relief she seeks.  The majority’s extension of the doctrine, and its creation of an accompanying ‘but for’ test, is unsupported by the law and likely will result in far-reaching ramifications outside the child custody context.  Because I would not extend the equitable-parent doctrine and because I believe that the legislature, not the judiciary, should be making these policy-based decisions, I dissent.  I would decline to disturb the opinions of the lower courts in this case.”

Carrie Pueblo’s counsel is Reh A. Starks of Kalamazoo.

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