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.