The Michigan Court of Appeals (COA) concluded that the equitable-parent doctrine does not extend to unmarried couples, whether heterosexual or same-sex couples. And, because the doctrine doesn’t apply, Plaintiff Michelle Lake does not have standing to seek parenting time with the child. Therefore, the COA remanded the matter back to the trial court for entry of an order granting summary disposition in the defendant’s favor. Judge Douglas B. Shapiro wrote a concurring opinion, stating the circumstances where he could see a different outcome.

The facts of Lake v Putnam (No. 330955) are:

The plaintiff and defendant Kerri Putnam were in a romantic relationship from 2001 to 2014. During which defendant Putnam gave birth to an artificially inseminated child. When the relationship ended, defendant denied plaintiff visitation. Plaintiff filed suit and the Washtenaw Circuit Court granted her supervised visitation. Defendant appealed that decision to the Court of Appeals.

The COA opinion:

The court first turned to the standing issue, stating:

1. Plaintiff is a third person as defined by MCL 722.22(k) as one who is an individual other than a parent, or one who is not a natural or adoptive parent of the child,

2. Third persons under the Child Custody Act have limited standing in the following circumstances: a) they are guardians or limited guardians, or b) are unmarried biological parents or are related to the child but don’t have custody.

3. Therefore, the plaintiff lacks standing since she meets none of the above scenarios.

Plaintiff also asserted she had standing under Michigan’s Equitable-Parent Doctrine. Under this doctrine a husband who is not the biological father to a child born during the course of the marriage can be considered the child’s father if:

1. The husband and child have or the mother acknowledges their father-child relationship.

2. The husband wants parental rights and is will to pay child support.

Plaintiff doesn’t have standing under this doctrine since the parents were never married thus the child was not born during the course of a marriage. Michigan’s equitable doctrine applies only to married couples.

Plaintiff argued that her constitutional rights to due process and equal protection were violated. The court didn’t agree stating her argument wasn’t supported on the facts or the law. She was not married to the defendant and had she been so “regardless of whether the biological parent was male or female, the outcome of this appeal would have been different.”

Judge Shapiro, concurring:

Judge Shapiro, in a separate opinion, stated that the case would have turned out differently if the Plaintiff had shown that she and the defendant would have married before the child’s birth had the states where they lived, Michigan and Florida, allowed it. He referred to a COA case Stankevich v Milliron, 31 Mich. App. 2233 (2015) where the couple married out of state before the child’s birth, which the court used to determine the standing of the non-biological parent and grant visitation. He would not limit this application to cases where the couple actually married in another state. Using the intent of Obergefell v Hodges, 15 S Ct 2584, he would expand the equitable parent doctrine to include situations where the couples were prevented by state law from marrying but lived together as a married couple and raised the child as co-parents. Because the facts of this case didn’t support that but for the state law ban the parties would have married, he supported the majority opinion.

He pointed out, however, that in a different scenario, where the parties show that they would have married had they been able, “I believe the courts would be required to recognize the parental rights of the non-biological parent” and determine custody and visitation considering the best interests of the child.