Unmarried Same-Sex Couple Seeking Joint Custody and Parenting Time For a Child Conceived Through in Vitro Fertilization
Opinion Issued: July 24, 2023
Author: Justice Megan K. Cavanaugh
Holding: Under the equitable parent doctrine, a would-be equitable parent of a child born or adopted in same-sex marriage may seek custody and parent time if the would-be equitable parent can prove by a preponderance of the evidence that the couple would have been married when the child was born or conceived but for Michigan’s unconstitutional ban on same-sex marriage.
Facts: The parties are two women who entered into a same-sex relationship in the early 2000s, when same-sex marriage was prohibited in Michigan. In June 2007, the parties held a private civil commitment ceremony. Also in 2007, the parties decided to use in vitro fertilization to conceive a child. Haas conceived the child, who was born in November 2008 and whose last name is a hyphenation of the parties’ last names although Haas is the only parent listed on the child’s birth certificate. The parties separated in the early 2010s - before the right to marriage was extended to same-sex couples in Obergefell v Hodges, 576 US 644; 135 S Ct 2584; 192 L Ed 2d 609 (2015) - so they never legally married. The parties immediately began sharing custody and parenting time of the child. However, in 2017, Haas demanded that Pueblo cease contact with the child.
In response, Pueblo filed a custody complaint under the Child Custody Act, seeking joint custody, parenting time, and child support. Haas moved to dismiss the complaint, asserting that Pueblo lacked standing as Pueblo is not the biological or adoptive parent of the child and the parties never legally married. The trial court granted Haas’s motion to dismiss, eventually dismissing the complaint with prejudice. Pueblo moved for reconsideration and argued she had standing as a natural parent despite her lack of genetic connection following the Court of Appeals decision in LeFever v Matthews, 336 Mich App 651; 971 NW2d 672 (2021). The trial court again rejected her argument because, as distinguished from LeFever, Pueblo did not give birth to the child nor share a genetic connection with the child.
Pueblo appealed to the Court of Appeals, and the Court of Appeals affirmed, holding that Pueblo was not a parent under the Child Custody Act. Pueblo again appealed to the Supreme Court.
Key Appellate Rulings:
The equitable parent doctrine extends to individuals who were unable to marry during their same sex marriage before Obergefell but nonetheless developed a parent-child relationship with the child during the time they would have otherwise been married.
The Child Custody Act grants standing to “parents” to initiate child custody proceedings, but the Act only defines “parent” as “the natural of adoptive parent of a child” - a circular definition. MCL 722.22(i). Additionally, the term “natural parent” is not defined in the Act, but the Court of Appeals has defined it as a “blood” relation rather than by adoption. Stankevich v Milliron (On Remand), 313 Mich App 233, 236; 882 NW2d 194 (2015) (Stankevich III). However, the Court of Appeals recently extended the term “natural parent” to include an unmarried woman who gave birth as a surrogate but shared no genetic connection to the children she birthed in LeFever, 336 Mich App at 666.
Michigan has also adopted the equitable parent doctrine, which allows a person with no biological relationship to a child to establish parentage and assert custodial rights based on four footings: (1) the equitable nature of the Child Custody Act; (2) the logical extension of the rights of nonbiological fathers who can be ordered to pay child support; (3) the analogous doctrine of equitable adoption in intestate succession; and (4) the paramount consideration given to the best interests of the child.
Historically, the equitable parent doctrine has been only extended to children born or conceived during a marriage. See Van v Zahorik, 460 Mich 320, 330-331; 597 NW2d 15 (1999). More recently, the Court of Appeals extended the doctrine to a same-sex couple who married in another state but whose marriage would not have been recognized in Michigan pre-Obergefell. Stankevich III, 313 Mich App at 240, 242. However, the Court of Appeals has declined to extend the doctrine to same-sex couples who never married because the doctrine requires the child to be born or conceived in wedlock. Lake v Putnam, 316 Mich App 247, 252; 894 NW2d 62 (2016).
The Michigan Supreme Court held that Obergefell demands an extension of the equitable parent doctrine to same-sex couples. Obergefell set out a “constellation of benefits” connected with marriage, and among that constellation is equitable parenthood. Throughout the parties’ entire relationship, they resided in Michigan, but their marriage was unconstitutionally prohibited. To remedy this past unconstitutional wrong, the Court held that an individual who developed a de facto parent-child relationship with the children born or adopted by their same-sex partner during the time they would have been married have standing to seek custody under the equitable parent doctrine, overruling Lake.
An individual who can demonstrate by a preponderance of the evidence that they would have married the biological parent of the child but for the unconstitutional ban on same-sex marriage can demonstrate standing under the Child Custody Act.
Because the Court concluded that the equitable parent doctrine extends to equitable parents of children born to an unmarried, same-sex relationship, the Court required these equitable parents to prove by a preponderance of the evidence that the parties would have married before the child’s birth or conception but did not because of the unconstitutional ban on same-sex marriage. To assist in determining whether parties would have been married, the Court adopted a non-exhaustive list of factors set out in the Oregon Court of Appeals’ opinion in In re Madrone, 271 Or App 116, 127-129; 350 P3d 495 (2015). If a would-be equitable parent can establish that the couple would have been married, the court may evaluate whether the would-be parent has standing to seek custody and parenting time under the equitable parent doctrine.
Justice Bolden’s Concurring Opinion
Justice Bolden concurred with the Court’s opinion but wrote separately to emphasize the legal fog surrounding same-sex couple custodial disputes if the relationship is terminated. Justice Bolden asserts that the Legislature should address several legal uncertainties that are raised in this case and will likely be raised in the future. For example, a child conceived with the assistance of reproductive technology in an opposite-sex marriage is considered a legitimate child of the marriage, MCL 333.2824(6), but the same consideration is not granted to female spouses in same-sex relationships who consent to their partner’s conceiving a child using the same technology. According to Justice Bolden, this is a denial of equal protection that should be addressed by the Legislature to prevent confusion for same-sex couples trying to navigate the statute.
Justice Zahra’s Dissenting Opinion, joined by Justice Viviano
Justice Zahra dissented and stressed that the equitable parent doctrine is a marriage-based doctrine that rests on shaky legal grounds. First, Justice Zahra stated that the equitable parent doctrine is inapplicable to this case because the parties never married. According to Justice Zahra, the majority’s conclusion is inconsistent with the equitable parent doctrine because the doctrine is entirely based on the sanctity of marriage, and the Court’s conclusion extends the doctrine beyond the confines of marriage.
Second, Justice Zahra questioned the soundness of the equitable parent doctrine itself. Since its inception in 1987, the equitable parent doctrine was not codified by the Legislature. Instead, the Legislature enacted “targeted third-party custody provisions” to address the rights of certain other third parties.
Finally, Justice Zahra expressed skepticism toward the Court’s “but for” test to retroactively recognize marriage-equivalent relationships under the equitable parent doctrine. Justice Zahra stated that this test will be impractical, as it will invite litigation into complicated facts that are no longer discoverable. Justice Zahra also expressed concern that the Court’s opinion will invite couples who were not married pre-Obergefell to rely on the decision to argue they were denied the same access to other legal rights, such as property division, spousal support, and other areas of divorce.
