Appeals Court Refuses To Create New Concept Of “Equitable Marriage”

The plaintiff in this child-custody case is not a “natural parent” under the equitable parent doctrine and did not establish the necessary elements for third-person standing under the Child Custody Act, the Michigan Court of Appeals has ruled.

As a result, the plaintiff in Pueblo v Haas (Docket No. 357577) was not entitled to bring this child-custody action, the Court of Appeals held, declining the plaintiff’s invitation to create a new legal concept of “equitable marriage” in Michigan.

The plaintiff and the defendant in the case had been in a same-sex relationship. The parties were never married, even after the U.S. Supreme Court’s decision in Obergefell v Hodges, 576 US 644 (2015), a landmark ruling that legalized same-sex marriage. During the relationship, the defendant underwent in-vitro fertilization and gave birth to a child. The plaintiff acknowledged that she had no biological relationship to the child and that she did not adopt the child. When the relationship ended and the defendant demanded that the plaintiff stop having contact with the child, the plaintiff filed this custody action in Kalamazoo County Circuit Court. She asserted that she had standing to seek custody under the Child Custody Act (CCA) because the parties were “equitably married” at the time the child was conceived and born. The Kalamazoo trial court dismissed the plaintiff’s claims.

The plaintiff appealed, maintaining that she had standing to bring her custody claim. The Court of Appeals disagreed, finding that the plaintiff was “not a parent of the child.”

Because the plaintiff never married the defendant, she could not achieve the status of natural parent under the equitable parent doctrine, the Court of Appeals explained. “Plaintiff thus is a third person under the CCA with respect to the child. Because plaintiff has not established the requisite factors for standing under MCL 722.26b or MCL 722.26c(1)(b), plaintiff is not entitled as a third person to initiate this custody action. … The trial court therefore did not err by granting defendant summary disposition of plaintiff’s complaint.”

Judges Michael F. Gadola, Brock A. Swartzle and Thomas C. Cameron were on the panel that issued the unpublished opinion.

No Standing

The plaintiff’s main argument on appeal was that she had standing under the CCA because the parties were “equitably married” when the child was conceived and born, and she is the child’s “natural father.”

“Plaintiff thus urges that we extend the existing equitable-parent doctrine to create a new legal concept of ‘equitable marriage,’” the Court of Appeals observed. “We decline to extend existing law in that manner.”

In its analysis, the Court of Appeals examined the CCA, noting it defines “parent” as “the natural or adoptive parent of a child.” The CCA, however, does not define “natural parent,” the appeals court said, “but this Court has defined that term as meaning that the person is a parent related to the child by ‘blood’ rather than by adoption.” The Court of Appeals further pointed out the meaning of “natural parent” was recently expanded in LeFever v Matthews (Docket No. 353106; decided April 1, 2021) to include a parent related to the child “by birth,” regardless of a genetic connection.

A person may also be considered a natural parent under the equitable parent doctrine, the Court of Appeals emphasized. Under that doctrine, “a husband who is not the biological father of a child born or conceived during wedlock nevertheless may be considered that child’s natural father if (1) the husband and the child mutually acknowledge their father-child relationship, or the child’s mother cooperated in the development of that father-child relationship before the divorce proceedings commenced, (2) the husband expresses a desire to have parental rights to the child, and (3) the husband is willing to accept the responsibility of paying child support,” the appeals court said. However, the Michigan Supreme Court in Van v Zahorik, 460 Mich 320 (1999), declined to extend the equitable parent doctrine outside the context of marriage, the appeals court pointed out.

Next, the Court of Appeals turned to the CCA’s definition of “third person.” The CCA defines third person as “an individual other than a parent.” Moreover, under the CCA, a third person “does not have standing by virtue of the fact that he or she resides with the child and has a ‘personal stake’ in the outcome of the litigation” and a third person may not “create a custody dispute by simply filing a complaint in circuit court alleging that giving legal custody to the third party is in the child’s best interests,” the appeals court said.

According to the Court of Appeals, the CCA limits the standing of a third person to bring a custody action “to guardians or limited guardians under certain circumstances … and to a third person when (1) the minor child’s biological parents were never married to each other, (2) the parent who has custody of the child dies or is missing and the other parent does not have legal custody of the child, and (3) the third person seeking custody is related to the child ‘within the fifth degree by marriage, blood, or adoption.’” Therefore, if the plaintiff in this case is not a parent, “she is a third person who was obligated to satisfy the requirements of either MCL 722.26b or MCL 722.26c(1)(b) to demonstrate standing to initiate this custody action.”

The Court of Appeals then concluded that the plaintiff is not a parent of the child and that Michigan’s equitable parent doctrine applies only to married couples. “In this case, … because the parties were never married, plaintiff’s argument that she is an equitable parent fails.”

The plaintiff contended, however, that she had standing under the “elastic definition” of natural parent adopted in LeFever. The defendant in LeFever did not demonstrate that she was a natural parent under the equitable parent doctrine. Instead, the defendant in LeFever was determined to be a natural parent of the twins by virtue of her own physical relationship to the children because she had given birth to them.

“Plaintiff here argues that the facts of this case mirror those of LeFever,” the Court of Appeals observed. “In LeFever, however, unlike this case, although the twins were the product of the plaintiff’s eggs and donor sperm, the defendant gave birth to the twins, which this Court equated with the physical connection of being a parent by virtue of genetic relationship. Here, plaintiff lacks the physical connection to the child that this Court in LeFever found determinative to being a natural parent. Nor is plaintiff an adoptive parent of the child. Because plaintiff is not related to the child genetically or by birth, she could only be determined to be a parent if under the equitable-parent doctrine she met the requirements for being a natural parent.”

A person is only a natural parent under the equitable parent doctrine, the Court of Appeals explained, if he or she was married to the child’s mother at the time of conception or birth, and the other requirements of the doctrine are met. “Relying upon the reasoning of the concurring opinion in Lake [v Putnam, 316 Michigan App 247 (2016)], … plaintiff asserts that the parties were ‘equitably married’ because, although at the time of their relationship same-sex marriages were not permitted under Michigan law, the fact that the parties participated in a commitment ceremony in 2007 demonstrates that the parties would have married had they been permitted to do so in Michigan. But in contrast to the view advocated by the concurring opinion in Lake, the majority opinion in that case declined to extend the equitable-parent doctrine by imposing the status of marriage upon a couple who had never married.”

Based on the foregoing, the Court of Appeals held that the plaintiff in this case is a “third person” under the CCA with respect to the child. Further, because the plaintiff did not establish the necessary factors for standing under the CCA, she could not initiate this custody action.

In conclusion, the Court of Appeals also rejected the plaintiff’s due process and equal protection claims. “[P]laintiff asserts that the trial court’s decision violates her right to procreate in the manner she chooses by failing to ensure her right to co-parent a child born to her partner during a non-marital relationship, who is not biologically related to plaintiff, and whom plaintiff has not adopted. Plaintiff’s argument lacks merit, however. The trial court did not dismiss plaintiff’s complaint because of the method the parties used to become pregnant; the trial court dismissed the complaint because plaintiff lacked standing to seek custody of the child, being neither a natural nor adoptive parent of the child under the CCA. The trial court reasoned that the parties were never married, plaintiff has no biological relationship with the child, and plaintiff did not adopt the child, and therefore was not a parent of the child under the CCA.”