Former Same-Sex Partner Does Not Have Standing To Bring Custody Action

The trial court in this equitable-parent doctrine case correctly ruled the plaintiff did not establish, by a preponderance of the evidence, that she and the defendant would have married but for the then-existing ban on same-sex marriage, the Michigan Court of Appeals has decided.

In Kolailat v McKennett (Docket No. 369202), the plaintiff and the defendant were in a same-sex relationship from 2005 until 2014. During the relationship, the defendant gave birth to a child, MM, through artificial insemination.

When the Michigan Supreme Court decided Pueblo v Haas, 511 Mich 34 (2023), the plaintiff sought standing to bring a custody action in the Washtenaw County trial court. In Pueblo, the high court held that “[a] person seeking custody who demonstrates by a preponderance of the evidence that the parties would have married before the child’s conception or birth but for Michigan’s unconstitutional marriage ban is entitled to make their case for equitable parenthood to seek custody.”

The trial court denied the plaintiff’s petition for standing. The plaintiff appealed, arguing the trial court wrongly found she failed to establish, by a preponderance of the evidence, that she and the defendant would have gotten married if not for the same-sex marriage ban in place at the time.

The Court of Appeals affirmed the trial court’s decision.

“Considering defendant’s testimony, the trial court did not err by determining that plaintiff had not proven by a preponderance of the evidence that the parties would have gotten married before MM’s birth if not for Michigan’s ban on same-sex marriage,” the Court of Appeals said. “As a result, the threshold test was not satisfied, and the trial court was not required to consider whether plaintiff had standing to seek custody and parenting time under the equitable-parent doctrine.”

Judge Mark T. Boonstra, Judge Mark J. Cavanagh and Judge Sima G. Patel were on the panel that issued the unpublished opinion.

The plaintiff filed an application for leave to appeal with the Michigan Supreme Court on July 31, 2024.

Background

The parties have an extensive legal history that includes several lawsuits and appeals.

In this action, the plaintiff filed a petition in Washtenaw County Circuit Court to initiate a custody case, claiming she and the defendant demonstrated through their actions over the years that their same-sex relationship was equivalent to marriage. At that time, however, same-sex marriage was illegal in Michigan.

The defendant opposed the plaintiff’s motion, claiming that although the parties were in a relationship at the time the child was conceived and born, she would not have married the plaintiff even if that choice was available.

The trial court held an evidentiary hearing. The defendant was the only witness who presented testimony. Following the hearing, the trial court denied the plaintiff’s request for standing to seek custody as an equitable parent.

The plaintiff filed a motion for reconsideration and a motion for rehearing. The trial court denied both motions.

The plaintiff appealed.

Equitable-Parent Doctrine

On appeal, the plaintiff argued the trial court erroneously concluded that she failed to establish, by a preponderance of the evidence, that the parties would have married before the child’s conception or birth but for Michigan’s then-existing marriage ban.

“We disagree,” the Court of Appeals said, pointing to the Child Custody Act (CCA), MCL 722.21, et seq., which governs “all custody actions.”

The CCA also provides a parental presumption, the Court of Appeals noted. This presumption is in MCL 722.25(1) and says: “If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.”

However, a person with no biological relationship to a child may assert custodial rights as a parent through several avenues, including the equitable-parent doctrine, the Court of Appeals explained, citing Pueblo. “The doctrine states the following: 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 a 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.”

To determine whether a same-sex couple would have married but for the ban, the Michigan Supreme Court in Pueblo directed trial courts to consider the factors outlined in In re Madrone, 271 Or App 116 (2015), the Court of Appeals explained. Of particular significance, the appeals court said, is a couple’s “decision to take advantage of other options giving legal recognition to their relationship – such as entering into a registered domestic partnership or marriage when those choices become available.” Other factors to consider include whether the parties: 1) held each other out as spouses; 2) considered themselves to be spouses; 3) had children during the relationship and shared child-rearing responsibilities; 4) held a commitment ceremony or otherwise exchanged vows of commitment; 5) exchanged rings; 6) shared a last name; 7) commingled their assets and finances; 8) made significant financial decisions together; 9) sought to adopt any children either of them may have had before the relationship began; or 10) attempted unsuccessfully to get married.

According to the Court of Appeals, the Pueblo Court said the factors in Madrone are “illustrative but not dispositive” and “[i]f that threshold test for standing is satisfied, the court may evaluate the equitable-parent factors to determine whether the would-be equitable parent has standing to seek custody and parenting time.” However, “the equitable-parent doctrine should not apply to a same-sex couple who would have chosen commitment but not marriage, just as the doctrine does not apply to an opposite-sex couple who chose not to marry.”

Trial Court Testimony

Next, the Court of Appeals examined the defendant’s trial court testimony in light of the Madrone factors.

“Throughout defendant’s testimony at the hearing, she maintained that, although she considered having a commitment ceremony (or something similar) with plaintiff, she never made any specific plans to marry or have a ceremony with plaintiff,” the Court of Appeals noted. “Indeed, defendant specifically testified that she would not have married plaintiff before the conception or when MM was born even if it was allowed under Michigan law. Moreover, defendant acknowledged that plaintiff gave defendant a ring and asked defendant to marry plaintiff; however, defendant told plaintiff the following day that she was not ready to get married. Defendant denied giving a ring to plaintiff or having any type of commitment ceremony.”

Regarding the defendant’s last name, the defendant testified the plaintiff used the last name “McKennett” socially but she never legally changed her name, the Court of Appeals observed. “Defendant denied telling others that plaintiff was her spouse. Rather, defendant thought of plaintiff as her partner and girlfriend. She admitted that she referred to plaintiff as her ‘wife’ on a picture that she gave to plaintiff. However, she testified that she did not remember when she gave this picture to plaintiff, and she further explained that she used the term ‘wife’ as a ‘term of endearment’ because she knew that plaintiff liked and used the term.”

As to their finances, the Court of Appeals pointed out the defendant testified that the parties did not commingle their finances before MM was born. “Defendant also did not add plaintiff to the deed of her house. Defendant admitted that plaintiff paid for many things during the relationship. She explained that plaintiff was eager to pay for these items, and she allowed plaintiff to do so without having a discussion concerning the parties’ specific roles. Defendant testified that she was financially stable without plaintiff’s support because she received an inheritance and life insurance proceeds following the deaths of her parents and siblings.”

Regarding MM’s conception, the defendant testified that she wanted to have another child so that KM (the defendant’s child from a previous relationship) would grow up with a sibling, the Court of Appeals said. “She knew she wanted to have another child before she met plaintiff. She did not decide to have another child to solidify her relationship with plaintiff. She began planning for MM’s conception after she graduated from college and when KM was five years old. The parties never took steps for plaintiff to adopt MM or KM.”

In addition, the Court of Appeals noted the plaintiff objected to the defendant’s testimony several times, asserting the defendant was “being untruthful.” The plaintiff, however, “declined to testify and present her own evidence except for some exhibits. … Considering defendant’s testimony, the trial court did not err by determining that plaintiff had not proven by a preponderance of the evidence that the parties would have gotten married before MM’s birth if not for Michigan’s ban on same-sex marriage. … As a result, the threshold test was not satisfied, and the trial court was not required to consider whether plaintiff had standing to seek custody and parenting time under the equitable-parent doctrine.”

The plaintiff further argued that certain exhibits she presented with her motion for reconsideration – two pages from a deposition transcript and a blog post – contradicted the defendant’s testimony. “Even accepting the argument that these exhibits contradict defendant’s hearing testimony, plaintiff did not present these exhibits until she moved for reconsideration,” the Court of Appeals said. “Therefore, the trial court was not required to consider these exhibits, and its decision to deny the motion [for reconsideration] was not improper.”

In conclusion, the Court of Appeals also rejected the plaintiff’s claims of judicial bias, erroneous admission of evidence, and the denial of her motion for reconsideration and a new hearing.