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Schizophrenic Michigan Family Law – Out-of-State Adoption is Stronger than Out-of-State Same-Sex Marriage in Custody Disputes

Posted on: October 23rd, 2013 by Art Leonard No Comments

On October 17, two different panels of the Michigan Court of Appeals ruled in cases where lesbian co-parents were battling over child custody.  In one, a birth mother prevailed because the court refused to recognize the couple’s Canadian same-sex marriage.  In the other, however, the court found that the state’s full-faith-and-credit obligation required recognition of an out-of-state second-parent adoption that could not have been done in-state, and affirmed a sole custody award to the second parent adopter of some children from China who had originally been adopted by her former partner.

In the first case, Stankevich v. Milliron, 2013 WL 5663227, 2013 Mich. App. LEXIS 1684 (Oct. 17, 2013) (unpublished opinion), the court of appeals affirmed the Dickinson Circuit Court’s award of summary judgment to the birth mother of the child who was conceived through donor insemination, on the ground that her spouse is not legally related to the child.  The women married in Canada in 2007, at which time Milliron was pregnant.  She gave birth after the marriage.

The parents separated in 2009 and ultimately disagreed on a visitation schedule.  Stankevich then sought an order dissolving the marriage, affirming that she is a parent of the child, and making custody, parenting time and child support awards.  Milliron moved for summary judgment, arguing Stankevich had no standing to bring the action as a legal stranger to the child.

The court of appeals, in a per curiam opinion, found that under the state’s Child Custody Act a parent is either “a natural or adoptive parent” and that Stankevich was neither.  “Here, there is no dispute that  plaintiff is not related to the child by blood.  Thus plaintiff is not a parent as defined by MCL 722.22(h),” wrote the court.

The court refused Stankevich’s request to use the “equitable parent doctrine,” finding that under Michigan precedents it would not apply to a situation involving a child who was not conceived during a marriage recognized by the state, and Michigan does not, as of now, recognize same-sex marriages.

Citing U.S. Windsor, the court said that the definition of marriage is a matter of state law, and Michigan has decided by statute and constitutional amendment to eschew recognition of same-sex marriages.  “As we are bound by the Michigan Constitution and the plain statutory language, we agree with the trial court that plaintiff is not a parent as defined under the CCA or the equitable parent doctrine, and therefore lacks standing to bring this action,” said the court, which also held that it could not entertain Stankevich’s constitutional equal protection argument, because it was bound by a prior decision of the Michigan Supreme Court and thus did not have authority to declare that such a refusal to recognize the marriage violates the equal protection clause.

On the same day, the Court of Appeals rejected the attempt by a lesbian mother who had entered into joint adoptions of children with her former same-sex partner in an Illinois court to argue in a subsequent custody dispute between them that the adoptions were invalid.  Giancaspro v. Congleton, 2013 Mich. App. LEXIS 1701 (Oct. 17, 2013).

Diane Giancaspro and Lisa Congleton, Michigan residents, began living together in 1995.  Subsequently, Congleton adopted children in China.  After bringing the children back to the United States, Congleton and Giancaspro jointly adopted them through a second-parent adoption proceeding in Illinois.  They went to Illinois for the adoptions because second-parent adoptions are not available in Michigan.  (The pending marriage equality lawsuit in U.S. District Court in Michigan, Deboer v. Snyder, originally began as a 14th Amendment challenge to Michigan’s refusal to allow second-parent adoptions.)

The parties’ relationship subsequently broke down.  In the resulting custody dispute, the trial court at first granted summary judgment to Congleton on her argument that it would violate public policy for a Michigan court to recognize an out-of-state second parent adoption, but the Court of Appeals reversed in an unpublished decision in 2009, finding that full faith and credit required Michigan to recognize the Illinois second-parent adoption judgment.  The court of appeals then returned the case to the trial court for a ‘best interest of the children’ determination.

The Berrien Circuit Court then found that it would be in the children’s best interest for Giancaspro to be their sole legal parent, with visitation rights for Congleton.  The tense relationship between the former partners evidently precluded a joint custody award, and based on the factors considered by Michigan courts in deciding custody disputes between legal parents, Giancaspro won on points.  During this stage of the litigation, Congleton attempted to discredit the Illinois adoption by offering evidence that the women were actually residents of Michigan at the time the adoption was granted, but the trial judge refused to admit the evidence, and rejected Congleton’s motion to reopen the evidence or reconsider its decision after the court had announced its custody award.

On appeal, Congleton again attacked the validity of the Illinois adoptions, arguing that the women had defrauded the Illinois court by claiming to be Illinois residents when they were not, so the Illinois court did not actually have jurisdiction to grant the adoptions under Illinois law.  The Court of Appeals, in a new per curiam opinion, held that Congleton had waived any argument as to the underlying validity of the Illinois adoptions by failing to raise the jurisdictional issue as an affirmative defense during the initial phase of this proceeding.

In addition, the court noted that even were the issue not waived, judicial estoppel would preclude Congleton from repudiating the position she took under oath in the Illinois adoption proceeding.  “In this proceeding,” wrote the court, “defendant now claims that she lied to the Illinois courts and that she and plaintiff were not actually residents of Illinois during the time before the entry of the adoption orders.  This argument is disingenuous in that it allows defendant to enjoy the benefits of the adoption orders for as many years as she could while now attempting to nullify the effect of the adoptions because she deems it advantageous to her.  This appears to be the exact type of ‘fast and loose’ play with the legal system judicial estoppel is designed to prevent.”

The court observed that Congleton had voluntarily submitted to the jurisdiction of Illinois, had sworn that she was an Illinois resident in that proceeding, and had “requested from those very courts the adoptions which she and plaintiff were awarded.”  Taking together the findings of waiver and the application of judicial estoppel, the court of appeals held that Congleton “fails to show that the trial court made any error in refusing to allow defendant to advance the argument that the Illinois courts did not have jurisdiction over her at the time the adoptions were entered.  We therefore conclude that the trial court did not abuse its discretion in denying defendant’s motion to reopen proofs.  Nor did the trial court abuse its discretion in denying defendant’s motion for reconsideration.”  The court awarded Giancaspro her court costs.

The juxtaposition of the two cases shows the unusual situation that Michigan’s ban on same-sex marriage produces.  A woman who was legally married to the birth mother at the time the child was born is treated as a legal stranger to the child, barred from even seeking custody, while a woman who adopted the children of her unmarried same-sex partner in an out-of-state adoption proceeding is awarded custody “on points” due to the powerful full faith and credit obligation to recognize adoption judgments from sister states.  If, as anticipated, the federal court rules in Deboer that Michigan’s refusal to recognize out-of-state same-sex marriages violates the 14th Amendment, this anomaly of Michigan family law may be corrected, although the traditional family law slant in favor of biological parents may still affect the outcome in particular cases.

Michigan Appeals Court Rejects Challenge to “Absurd” Benefits Policy

Posted on: January 11th, 2013 by Art Leonard No Comments

Despite finding that an employee benefits policy adopted by the Civil Service Commission drew “absurd” distinctions based on marital status and biological relationships, a 2-1 panel of the Court of Appeals of Michigan ruled on January 8 that the policy, extending health insurance benefits eligibility to non-marital cohabitants of state employees, did not violate equal protection or the state’s anti-gay marriage amendment. Attorney General v. Civil Service Commission, 2013 Westlaw 85805 (Mich. App., Jan. 8, 2013)(not reported in N.W.2d).

Michigan voters amended their constitution in 2004 to prohibit the state government from recognizing any “agreement” other than “the union of one man and one woman in marriage” as “a marriage or similar union for any purpose.” Subsequently, the state’s Supreme Court ruled, in National Pride at Work v. Governor, 481 Mich. 56, 748 N.W.2d 524 (2008), that this meant that the state could not provide domestic partnership benefits for same-sex partners of state employees.

When the amendment vote was taken, unions representing state workers had recently negotiated with the Civil Service Commission over partner benefits. Their agreement, worked out in negotiations, was to create benefits eligibility for cohabitants, regardless of gender, so long as the employee was not legally married and the cohabitants were not blood relatives. They referred to this as “other eligible adult individual” (OEAI). Married employees were eligible to share benefits eligibility with their spouses, of course.

After a change in administration, the Attorney General filed suit, seeking to have this new policy invalidated as a violation of the Marriage Amendment and the equal protection requirements of the state constitution, also arguing that the Civil Service Commission’s adoption of this program violated its constitutional authority over employment compensation.

The court easily found that there was no violation of the Marriage Amendment. “This policy is unambiguously completely gender-neutral,” wrote the majority in a per curiam opinion. “Furthermore, while it does not allow married employees to share their benefits with anyone other than spouses and does not allow employees to share their benefits with close blood relations, it does not depend on the employee being in a close relationship of any particular kind with the OEAI beyond a common residence. The Marriage Amendment prohibits recognizing certain kinds of agreements as ‘marriages or similar unions;’ it does not in any way prohibit incidentally benefiting such agreements, particularly where it is clear that an employee here could share benefits with a wide variety of other people.” The court noted that in light of economic realities, many unrelated people may be sharing housing, so it would be “unreasonable to predict same-sex domestic partnerships to necessarily be the most-benefitted group under this policy.”

The Attorney General’s equal protection challenge posed a tougher issue. He argued that the policy discriminated against married employees, and discriminated against employees who might want to share benefits with a cohabiting parent or brother, for example, contending that there was no rational basis for drawing the eligibility line where the Civil Service Commission had drawn it.

The court found that this equal protection argument was to be evaluated using the deferential rational basis test, as the courts had not identified marital status as a suspect classification, and “close relatives are not a suspect/quasi-suspect classification that warrants heightened judicial scrutiny.” When deferential rational basis is used to evaluate a challenged policy, the policy is presumed to be constitutional and the burden falls on the challenger to prove the lack of a rational basis.

“Quite bluntly,” wrote the majority, “we agree wholeheartedly that those restrictions strike us as absurd and unfair. The restrictions excluding married employees from sharing their benefits with persons other than their spouses and excluding employees from sharing their benefits with blood relatives strike us as ridiculous.” The court noted an example provided at oral argument: that an employee could benefit a fraternity brother but not an actual brother with whom he was living. “These restrictions are nothing short of ridiculous,” wrote the court.

But ridiculous does not equal unconstitutional, when the standard of review is deferential rational basis review, said the court. “Defendant’s policy was crafted through negotiation and bargaining with the unions, and pursuant to the negotiations the policy excluded married persons and close relatives. The exclusion of the cited groups from the OEAI benefits policy does not clearly demonstrate that the policy is arbitrary or unrelated to the state’s interests. The policy appears to serve the negotiated, bargained-for needs of the individuals affected, and so we conclude that the policy passes muster under rational basis scrutiny. We do hope, however, that defendants will see fit and be able to strengthen the policy by eliminating the exceptions we have discussed.”

The court also rejected the Attorney General’s argument that the Civil Service Commission exceeded its constitutional authority to set government employee compensation, finding that there was sufficient authority that health benefits are part of the compensation package. “OEAI benefits qualify as compensation,” wrote the court, “because they are provided in exchange for services rendered by public employees,” citing a popular dictionary definition of “compensation” in the absence of a statutory definition of the term.

Judge Michael J. Riordan, dissenting, could not agree with the majority’s equal protection analysis. “There are no facts in the record to support the trial court’s conclusory holding that the OEAI provision is, or is not, supported by a rational basis,” he argued. “Despite the attorney general’s contention that the proffered reasons were illogical, the trial court performed no inquiry into whether they were supported by anything, even if debatable, in the record. Instead, the trial court simply adopted the proffered justifications as being factual.” The conclusion, for Judge Riordan, naturally followed: “Equal protection is not achieved through the indiscriminate imposition of inequalities. Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status, or general hardship, are rare. Romer, 517 U.S. at 633. Because the OEAI provision makes it impermissible for one group of citizens, as opposed to another, to receive a government benefit, without there being any identifiable, rational basis for doing so, it is a denial of equal protection of the law.”

Attorney General Bill Schuette’s office promptly reacted to the ruling. A spokesperson told the Detroit News (Jan. 10), “This is an important case, and we will appeal to the Michigan Supreme Court.”

The majority’s approach to the equal protection issue is a bit puzzling. First it ridicules the policy as absurd and ridiculous, then it upholds it as rational, citing the fact that it was negotiated with the unions representing state employees. The oblique wording of the opinion omits what was probably one of the motivations for drawing the line where it was drawn: money. That is, the unions undoubtedly demanded an expansive benefits policy, and the Civil Service Commission undoubtedly sought a way to compromise on a policy that would achieve the immediate goal of extending coverage to “significant others” of employees without breaking the bank, so negotiations ended up excluding certain categories of cohabitants and including others. One suspects that estimated costs of the program contributed to this decision. As such, it probably reflects an expense-based rationale. We’re just speculating here, but the description of OEAI strikes us as the product of a collective bargaining compromise that is what it is, without any thought to discriminating against particular groups for any other reason.