Same-sex couple. Domestic partnership declared. Donor insemination contract. Two children born during the relationship. Domestic partnership terminated. Custody and parenting-time dispute.

All these statements apply to Sheardown v Guastella – a case the Michigan Supreme Court declined to hear in January 2018 (Docket No. 156931) after the Michigan Court of Appeals, in a 2-1 order, remanded the case for further briefing and analysis (Docket No. 338089).

Sheardown is intriguing not because Michigan’s highest court denied the appeal. Rather, it’s interesting because the Court of Appeals – on its own initiative – ordered the parties to brief, and the trial court to consider, whether MCL 722.22(i) is constitutional as applied to the facts of the case, in light of the U.S. Supreme Court’s decision in Obergefell v Hodges, 576 US___ (2015).  

Notably, Obergefell was decided after the plaintiff and the defendant in Sheardown had ended their domestic partnership. In addition, Obergefell was not offered by either party as an argument on appeal.

In fact, Court of Appeals Judge Christopher M. Murray pointed this out in his dissent to the appellate majority’s order. He criticized the majority’s decision to invoke an Obergefell analysis on its own, noting there may have been strategic reasons why the plaintiff did not raise the issues that the Court of Appeals was now sua sponte requiring the parties to address on remand.

‘Sheardown’

The plaintiff and the defendant in Sheardown were a same-sex couple. Although they were never married, they were in a legally recognized domestic partnership from 2010-2013, at which time the partnership was dissolved.

While they were together, the plaintiff gave birth to a child in 2010 through a sperm donor. Both the plaintiff and the defendant signed a donor insemination contract, which stated the parties’ intent to raise the child together and for the plaintiff to adopt the child after birth. However, the plaintiff never adopted the child. In 2011, the defendant gave birth to another child through the same sperm donor. The children were raised together as siblings.

After the plaintiff and the defendant ended their relationship, they enjoyed parenting time with each other’s biological children. However, disagreements and parenting-time disputes soon arose. In 2016, the plaintiff filed a complaint in the Oakland County Circuit Court for custody and parenting time with the defendant’s biological child.

Trial Court Ruling & Reasoning

In the trial court, both parties moved for summary disposition. Oakland County Circuit Judge Lisa Langton, after conducting a hearing, granted summary disposition for the defendant.

First, the judge granted summary disposition under MCR 2.116(C)(4), lack of subject matter jurisdiction. She emphasized that, based on established case law, a third party does not have standing to create a custody dispute “unless the third party is a guardian of the child or has a substantive right of entitlement to custody of the child” (Ruppel v Lesner, 421 Mich 559 (1984)). In addition, the Legislature “has not created a substantive right to custody of a child on the basis of the child’s residence with someone other than a parent, and this Court is not in a position to do so,” she said.

Judge Langton also granted summary disposition under MCR 2.116(C)(5), finding the plaintiff did not have standing. “Because Plaintiff never adopted Defendant’s child, the law does not consider her a parent for purposes of the Child Custody Act,” the judge wrote. “Essentially, … she has no legal rights and interests regarding the minor child in this case. Thus, the court finds that Plaintiff lacks the legal capacity to sue.”

The judge further held that summary disposition was appropriate under MCR 2.116(C)(8), failure to state a claim for relief. “[T]he court’s analysis begins and concludes with two facts,” she said. “First, … the parties were not in a legally protected marriage at the time Defendant (or Plaintiff) gave birth to her biological minor child. It may be true that the city of Ann Arbor granted them legal recognition, but Plaintiff cites no authority that a city’s recognition requires full faith and credit acknowledgment by the state. Second, Plaintiff never adopted Defendant’s minor child. Under these grounds, the court finds that no factual development could justify recovery under these circumstances.”

In addition, Judge Langton concluded the equitable parenting doctrine was inapplicable in the case. She noted that the plaintiff claimed the arguments presented were “shockingly archaic” and “contrary to the fundamental rights of the LGBT community” under Obergefell. The judge pointed out, however, that a critical factor of the equitable parenting doctrine was missing in the case: the child must be born in wedlock. Citing Lake v Putnam, 316 Mich App 247 (2016), the judge said: “[I]t is, in our view, improper for a court to impose, several years later, a marriage on a same-sex unmarried couple simply because one party desires that we do so.”

Court of Appeals Remand Order

The plaintiff appealed the trial court’s decision. In her appellate brief, the plaintiff mentioned Obergefell in two instances: 1) to explain that, prior to Obergefell, same-sex couples in Michigan could not marry and, therefore, step-parent adoption was unavailable, and 2) to assert that, prior to Obergefell, many same-sex couples relied on donor insemination agreements to confer upon an individual the status of legal parent.

Meanwhile, the defendant argued on appeal that the plaintiff was asking the Court of Appeals to hold that contracts like donor insemination agreements are legally enforceable because, before Obergefell, Michigan did not permit same-sex couples to marry or adopt each other’s children.

The defendant further maintained the plaintiff waived her claims because she did not explain why Obergefell applied, or why Obergefell should be grounds for private and uncontrolled transfers of parental rights to third parties.

On its own motion, a 2-1 Court of Appeals remanded Sheardown “for consideration of whether MCL 722.22(i) is constitutional as applied to the facts of this case, in light of Obergefell … We order the parties to file supplemental briefs addressing this question in the trial court.”

Courts Are Not Advocates

So why did the Court of Appeals majority instruct the parties to file supplemental briefs in light of Obergefell, when Obergefell was not the basis for the appellate arguments?

That is precisely the question that Judge Murray posed in his dissent to the Court of Appeals order.

First, Judge Murray emphasized that courts are not advocates. “[W]e are not in the business of raising issues for the parties,” he observed. And when it comes to constitutional issues, “our Court – and of course the Supreme Court – has emphasized that constitutional challenges to a statute may not be raised for the first time on appeal.”

Specifically, Judge Murray noted the plaintiff in Sheardown did not challenge the constitutionality of MCL 722.22(i) in her complaint, nor did she raise the issue in any pleadings before the trial court. Rather, he said the plaintiff’s argument in the trial court, and on appeal, was that a signed contract established her rights as a parent. As a result, the trial court did not decide any constitutional issue, he said.

Judge Murray also explained the plaintiff’s constitutional argument on appeal was that she had a contract establishing her as a parent and, thus, her constitutional rights as a parent under Troxel v Granville, 530 US 57 (2000), were violated because she was unable to pursue custody or parenting time. “That is not the challenge to the statute raised by the [Court of Appeals] majority,” he wrote. “And although plaintiff did cite to Obergefell, it was only for the proposition that when these parties were in a relationship they were not allowed by state law to be married or to adopt. True enough, but that does not raise a constitutional challenge to a state statute on due process or equal protection grounds.”

According to Judge Murray, there may have been “a very good reason” why the plaintiff did not bring up the issue that was raised sua sponte by the Court of Appeals majority. “Setting aside that her counsel could not identify where this issue was raised, her counsel explicitly disavowed needing Obergefell to be retroactive to succeed, and likewise seemed to agree with the proposition in Lake v Putnam, … that courts are ill-equipped to re-create what could have occurred between a couple had they had the opportunity to marry while they dated. So it could well be that plaintiff chose not to raise this issue, and hedged her bet that the contract based claim to standing would prevail.”

But even if that was indeed the case, the Court of Appeals majority “has not let the parties’ control their own case, and the resulting delay and cost to resolving this matter will only increase,” Judge Murray concluded. “It is wrong, and I dissent from the majority’s decision to advocate on plaintiff’s behalf.”