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Michigan Appeals Court Rejects Lesbian Co-Parent Standing in Visitation Suit

Posted on: July 7th, 2016 by Art Leonard No Comments

A unanimous panel of the Court of Appeals of Michigan ruled on July 5 that Michelle Lake, a lesbian co-parent, lacked standing to seek “parenting time” with the biological child of her former same-sex partner, Kerri Putnam. Reversing a decision to award parenting time by the Washtenaw Circuit Court in Lake v. Putnam, 2016 Mich. App. LEXIS 1297, 2016 WL 3606081, the appeals court held that the co-parent was a mere “third party” who did not come within the standing requirements of the state’s Child Custody Act.  Judge Colleen A. O’Brien wrote the opinion for the panel, with Judge Douglas B. Shapiro filing a concurring opinion.

Judge Shapiro’s concurrence provides a more sympathetic version of the facts than O’Brien’s. “While the parties disagree as to details,” he wrote, “it is undisputed that they lived together for about a decade as a same-sex couple, that about five years into the relationship defendant bore a child by artificial insemination, that for several years the parties each acted as a parent to the child, and that they were both viewed as parents by the child.  It is also undisputed that several years later, around September 2014, defendant ended the relationship, moved out with the child, and entered into a new relationship with a different woman.  Defendant initially allowed plaintiff visitation with the child, but eventually she refused to do so.  In June 2015, plaintiff filed this action seeking parenting time.”  In addition, as Judge O’Brien pointed out in her opinion for the court, although the women could have married in other jurisdictions, they did not do so.  Neither did the plaintiff adopt the child with the consent of the defendant, although that would have been possible when the women were living with the child for some time in Florida, where the state courts had invalidated a statutory ban on “homosexuals” adopting children. (At the time, Michigan courts did not allow co-parent adoptions, which was one of the issues in DeBoer v. Snyder, one of the cases that was ultimately consolidated in Obergefell v. Hodges.)  Thus, the plaintiff was not legally related to the child or to the child’s mother at any time.

The Family Court judge in Washtenaw County, Darlene O’Brien, overruled the defendant’s objection to the plaintiff’s standing and awarded parenting time to the plaintiff, but the court of appeals granted the defendant leave to appeal.

The question, then, was whether some legal doctrine recognized in Michigan was available for her to assert standing to seek visitation after the women’s relationship ended. Courts in other states are divided on this question.  The plaintiff pinned her hopes on the doctrine of “equitable-parent” recognized in Michigan.  As Judge O’Brien describes Michigan’s version of the doctrine, “a husband who is not the biological father of a child born or conceived during wedlock may, nevertheless, be considered that child’s natural father if three requirements are satisfied: (1) the husband and the child must mutually acknowledge their father-child relationship, or the child’s mother must have cooperated in the development of that father-child relationship prior to the time that the divorce proceedings commenced; (2) the husband must express a desire to have parental rights to the child; and (3) the husband must be willing to accept the responsibility of paying child support.”  If these tests are met, the husband would be deemed an equitable parent with standing to seek custody and/or visitation as part of a divorce proceeding, the determining factor in that ruling being the best interest of the child.  Plaintiff asserted that she met the tests. However, O’Brien pointed out, the plaintiff “ignores one crucial, and dispositive, requirement for the equitable-parent doctrine to apply — the child must be born in wedlock.”  She pointed out that Michigan courts have consistently refused to extend this doctrine to heterosexual partners who have a child while living in unmarried cohabitation where the man is not the biological father of the child.  In other words, although the court did not describe it as such, this equitable –parent doctrine is similar to the “parental presumption” that other states apply to determine a husband’s parental status when his wife gives birth, without requiring proof in every case that the husband is the child’s biological father.

Responding to the plaintiff’s argument that refusing to extend this doctrine to give her standing discriminates because of her sexual orientation, the court asserted that its failure to extend the doctrine to unmarried heterosexual couples refutes that argument. As to the argument that the two women should be treated as if they were married because Michigan and Florida’s refusal to allow same-sex marriage during the time they were living together violated their constitutional rights as proclaimed in Obergefell v. Hodges, the court pointed out that plaintiff did not introduce any evidence suggesting that the women would have married had that option been available to them.  After all, at the time their child was born, they could have married in other states or Canada (just across the border from Michigan), although their home states did not then recognize out-of-state same-sex marriages.  Another part of the Obergefell ruling, however, was that states were obligated to recognize such out-of-state marriages.

As an alternative argument, the plaintiff urged the court to follow the persuasive precedent of Ramey v. Sutton, 2015 OK 79, 362 P.3d 217 (2015), in which the Oklahoma Supreme Court applied a theory of “in loco parentis” to a similar set of facts to find that a lesbian co-parent should be afforded a hearing to show that it was in the best interest of the child for her to be recognized as a legal parent for purposes of custody and/or visitation.  Judge O’Brien found that Oklahoma’s version of “in loco parentis,” which had never been embraced by Michigan courts, was distinguishable from Michigan’s equitable-parent doctrine, and “our Supreme Court has squarely rejected the argument that holding oneself out as a child’s parent, alone, is sufficient to be considered that child’s parent under the equitable-parent doctrine.”

The court acknowledged that “especially in light of the Obergefell decision” this sort of case is “complex”, but “we simply do not believe it is appropriate for courts to retroactively impose the legal ramifications of marriage onto unmarried couples several years after their relationship has ended,” which the court said was “beyond the role of the judiciary.”

“In sum,” concluded O’Brien, “while we acknowledge that the issues presented in child-custody disputes, including those involving same-sex couples, present challenges, we conclude that the equitable-parent doctrine does not extend to unmarried couples. This is true whether the couple involved is a heterosexual or a same-sex couple.”  Thus, the trial court’s visitation order had to be reversed.

In his concurring opinion, Judge Shapiro asserted that the case could have turned out differently had the plaintiff presented some evidence that the women would have married before their child was born had the states where they resided (Michigan and, briefly, Florida) allowed it. He pointed out that last year the Court of Appeals had ruled in favor of parental standing in a case where a same-sex couple had married out-of-state before having their child, using the reasoning of %Obergefell to confer, in effect, retroactive recognition of the marriage for purposes of determining standing of the non-biological parent.  See Stankovich v. Milliron, 313 Mich. App. 2233 (2015).  “I would not limit our application of Obergefell to cases where the parties actually married in another jurisdiction,” he wrote.  “The fact that marriage was available in some other jurisdiction did not remove the unconstitutional burden faced by same-sex couples residing in a state that barred same-sex marriage within its borders.  The impediment was defined by state law, and the existence of that law to those who lived under it should not now be treated as constitutionally insignificant because other states treated the issue differently.”

Thus, in Shapiro’s view, “plaintiff is correct that Obergefell demands extension of the equitable-parent doctrine,” but only if the plaintiff can show that the women would have married had the state allowed it.  “My colleagues are rightfully concerned about retroactively imposing marriage on a same-sex couple simply because one party now desires that we do so,” he continued.  “However, that concern is fully addressed by a factual inquiry into the facts as they existed at the time the child was born or conceived.  The question is whether the parties would have married before the child’s birth or conception but did not because of the unconstitutional laws preventing them from doing so.”  He referred to the Oregon Court of Appeals decision In re Madrone, 350 P.3d 495 (2015), to support this point. “I would adopt this approach and hold that a party is entitled to seek equitable-parent rights arising out of a same-sex non-marital relationship where the evidence shows by a preponderance of the evidence that but for the ban on same-sex marriage in the parties’ state of residency, they would have married prior to the birth of the child.”  But that is not this case.  “While the affidavits presented to the trial court on behalf of the plaintiff state that the parties were in a committed relationship and that while in that relationship they raised the child together as co-parents, none of the affidavits, including plaintiff’s, state or allow for an inference that but for the then-existing unconstitutional barriers to same-sex marriage the parties would have married.”  Shapiro concluded that if the plaintiff had presented such evidence, the correct move for the court of appeals would be to remand the case for a hearing by the trial court to determine whether such a thwarted intent to marry could be proven by a preponderance of the evidence.

This kind of opinion can be very frustrating to read, because it focuses on legality and avoids human issues that should, logically, weigh heavily in a family relationship dispute. The keystone of custody and visitation determinations is supposed to be what is in the best interest of the child.  Asserting technical standing requirements prevents the court from reaching this issue.  The trial judge in this case, having accepted the plaintiff’s argument that she could assert the rights of an equitable-parent, did get to that ultimate issue and concluded she should have parenting time with the child.  The court of appeals’ insistence on the technical rules of standing override that finding, resulting in a decision that seemingly sacrifices the best interest of the child, which is contrary to the usual policy goal of family law.

The plaintiff also tried to argue that depriving the child of contact with one of her parents violates the child’s own constitutional rights, but the court quickly dismissed this argument without any serious consideration, blithely asserting, “Generally, persons do not have standing to assert constitutional or statutory rights on behalf of another person. That is precisely what plaintiff is trying to do, i.e., assert the child’s constitutional rights.  Accordingly, we reject this argument as well.”  One wonders whether the trial judge appointed a guardian ad litem to represent the child’s interest, as such a party could advance this constitutional argument on the child’s behalf.  Perhaps Michigan attorneys will respond to this ruling by adopting a different litigation strategy to require the court to confront the issue of the child’s best interest free of the standing barrier.  In the meantime, of course, the plaintiff could seek review of this decision in the Michigan Supreme Court.

The plaintiff is represented by Jay Kaplan of the American Civil Liberties Union of Michigan. Anne Argiroff represents the defendant.

Shirvell Strikes Out in Court of Appeals of Michigan

Posted on: January 14th, 2015 by Art Leonard No Comments

Andrew Shirvell, the former assistant attorney general from Michigan who was discharged for his conduct in reaction to the election of an openly gay student body president at his alma mater, the University of Michigan, suffered a double loss in the Court of Appeals of Michigan on January 8.  The Court upheld the denial of his discharge grievance, finding his conduct unprotected by the First Amendment, and also ruled that he was not eligible for unemployment benefits while he was looking for a new job after the discharge.

Shirvell began working as an assistant attorney general in 2007.  In 2010, Chris Armstrong was elected president of the University of Michigan Student Assembly, the first openly gay person to hold that position.  Shirvell was apparently outraged at this development, and he set up a public blog called “Chris Armstrong Watch,” which was dedicated to maligning Armstrong for his “radical homosexual agenda.”  Shirvell called Armstrong a “radical homosexual activist, racist, elitist, and a liar,” according to the opinion for the Court of Appeals by Judge Stephen Borello.  One posting “contained a rainbow flag with a swastika posted next to a photograph of Armstrong’s face with the word ‘resign’ nearby.”  Shirvell also called Armstrong a “privileged pervert,” and made various accusations about Armstrong’s alleged agenda as student body president, including a gender-neutral student housing policy “under which, according to Shirvell, ‘cross-dressing students will not have to share a dorm room with a member of the same sex,'” that he contended would “undoubtedly lead to a massive increase in rapes.”

Amidst many other accusations, Shirvell accused Armstrong of hosting a “gay orgy” and accused him of sexual promiscuity, commented about his “deranged character” and suggested that Armstrong was trying to facilitate “homosexual shenanigans” by gay residents of the university’s dormitories.  Also, during a television interview sparked by publicity stemming from his activities, Shirvell “did not deny that on one occasion he referred to Armstrong as ‘Satan’s representative’ on the student assembly” on a Facebook page.  Shirvell also “appeared outside Armstrong’s residence and at events where Armstrong was present and held protest signs.”

Shirvell’s activities and accusations brought him notoriety, leading to “intense media scrutiny” including appearances on CNN’s Anderson Cooper AC360 program and Comedy Central’s The Daily Show.  During these TV appearances, Shirvell said he was speaking as a private citizen and U Mich alumnus, not in his official capacity as an assistant attorney general, but pressure mounted on then-Attorney General Michael Cox (a conservative Republican and no supporter of gay rights) to do something about Shirvell.  Cox sent an email to CNN and later did an interview with Cooper, in which he explained that Shirvell had a right to express his personal views protected by the First Amendment.  But then the Michigan Civil Rights Commission and the Ann Arbor City Council passed resolutions condemning Shirvell’s behavior and questioning its effect on the ability of the Attorney General’s office to carry out its mission.  In response to Armstrong’s complaints to university officials about Shirvell’s conduct on the campus, the university barred Shirvell from campus briefly.  The Attorney General’s office began to receive negative e-mails and telephone calls about Shirvell.

Finally, Cox had enough.  After a disciplinary hearing, he terminated Shirvell for “conduct unbecoming a state employee,” explaining that Shirvell’s conduct “could reasonably be construed to be an invasion of privacy, slanderous, libelous, and tantamount to stalking behavior unbecoming an Assistant Attorney General.”

Shirvell did not take this lying down.  Applying for unemployment benefits while he looked for new work, he also filed a grievance with the state’s civil service commission.  The Commission found that Cox had just cause to terminate Shirvell, and the circuit court agreed.  The Unemployment Insurance Agency found that he was not entitled to benefits due to the circumstances of his discharge.  Shirvell appealed both rulings.  At first he had some luck on the unemployment benefits, as a different circuit court held that Shirvell’s activities were protected by the First Amendment as free speech so he should receive the benefits, but ultimately both cases came before the Court of Appeals, which ruled against him on both counts.

The court focused first on the First Amendment issue, finding that Shirvell was speaking as a private citizen on issues that might be considered of public concern, and thus his speech might enjoy some protection.  However, the Supreme Court has ruled that even in such circumstances, a public employee may lose First Amendment protection if his speech “impaired discipline by superiors, detrimentally impacted close working relationships, undermined a legitimate goal or mission of the employer, impeded the performance of the speaker’s duties, and impaired harmony among co-workers.”

“In the present case,” wrote Judge Borello, “the Department introduced evidence to show that its interests in the effective provision of governmental services outweighed Shirvell’s speech interests,” showing that “Shirvell’s speech interfered with the Department’s internal operations and adversely affected the efficient provision of governmental services.  The Department received numerous e-mails, telephone calls and letters in response to Shirvell’s televised interviews.  Department staff members were questioned about Shirvell during unrelated proceedings and the Michigan Civil Rights Commission and the Ann Arbor City Council issued resolutions condemning Shirvell’s behavior and questioning the Department’s ability to fulfill its mission.  It was clear in both proceedings [the unemployment benefits proceeding and the grievance proceeding] that Shirvell’s speech created a media firestorm which in turn created a public-relations crisis.  The Department dedicated resources to respond to media inquiries about Shirvell and ultimately Cox found it necessary to take time to appear for a nationally-televised interview to defend the Department’s response to Shirvell’s conduct.”  Ultimately, the court found that the complaints “negatively impacted the Department’s internal operations.”

The court found that the notoriety generated by the situation could impede the Department’s ability to recruit “the most qualified employment candidates,” and that Shirvell’s speech “had, or was reasonably likely to have, a detrimental impact on close working relationships and harmony among co-workers within the office.”

In other words, while public employees do not automatically forfeit their right to speak as citizens on controversial matters, a public employer is not required to tolerate the situation if the employee’s speech and related activities makes them a detriment to the office, and the evidence here showed that Shirvell had crossed that line.  Thus, the court found that the Department had met the burden of showing that the adverse impact of Shirvell’s conduct on the department outweighed any First Amendment protection that his speech might otherwise enjoy.

The court found that there was just cause for Cox to fire Shirvell.  The evidence supported the conclusion that his conduct was “unbecoming a state employee in that his speech and speech-related conduct undermined his professional character and reputation, adversely affected the Department’s internal operations, and had a tendency to destroy public respect for the Department and confidence in the Department’s ability to provide services.”  The court pointed out that “as a legal representative of the state of Michigan, the conduct of an assistant attorney general should be held to a higher standard than the average private citizen.”

As to unemployment benefits, the state’s law disqualifies somebody who was “discharged for misconduct connected with the individual’s work.”  Shirvell was arguing that the conduct in question was private and unofficial, but Cox’s internal investigation showed that he was using Department computer equipment for some of the anti-Armstrong activities.  Furthermore, past decisions of the court supported a finding that even off-duty conduct can be disqualifying because it may undermine the ability of a public servant to fulfill his functions in an official capacity.  “When viewed in totality,” wrote Borello, “Shirvell’s behavior evinced a willful disregard of the Department’s interests and he disregarded standards of behavior that the Department had a right to expect of him.”

The court emphasized that an assistant attorney general is “in a position of public trust,” a representative of the state appointed by an elected, politically accountable official, the attorney general. “As an elected official,” wrote Borello, “the attorney general serves all of the citizens of Michigan, irrespective of race, creed, religion, gender or sexual orientation.  Thus, the Department had a real and substantial interest in maintaining neutrality and conducting its operations in a non-biased manner; the public actions of its employees, therefore, were critical in protecting this interest.”  The court found that “Shirvell’s public ‘campaign’ against Armstrong undermined” the Department’s interests by casting “a cloud over both his and the Department’s ability to maintain the public trust and severely tarnished the Department’s reputation.”

Apart from these findings, the court found that Shirvell “received a written reprimand for failing to follow the Department’s media contact policy,” and had suffered a brief suspension without pay “after a heated argument with his supervisor involving inappropriate language and threats.  Viewing the recording in its totality,” wrote Borello, “it is clear that there was substantial and compelling evidence” to support the ruling by the unemployment benefits agency, so the circuit court should not have overturned its denial of benefits.

The court affirmed the grievance ruling and reversed the unemployment benefits ruling.  Judges Christopher M. Murray and Peter D. O’Connell signed Judge Borello’s opinion for a unanimous result.

There is a certain irony in this case, inasmuch as Attorney General Cox was a staunch defender of the state’s ban on same-sex marriage, the state’s appeal of a marriage equality ruling to the 6th Circuit resulted in a reversal of the federal district court’s marriage equality decision, and the state legislature has repeatedly refused to enact a ban on sexual orientation discrimination.  But Shirvell’s conduct went too far even for a state government that is not particularly gay-friendly, and he ultimately paid the price through loss of his job and benefits.