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A Better Partnership
July 07, 2016

COA requires strict compliance with the marriage component of the equitable parent doctrine in rejecting individual's standing to challenge custody of former same-sex relationship partner's child

In Lake v. Putnam, No. 33095, the Court of Appeals held that a third person (“a person other than the parent”) will not have standing to initiate a child custody proceeding unless they fall within the specific circumstances enumerated in the Child Custody Act, specifically MCL 722.26b or 722.26c(1)(b). Furthermore, a third party may not gain standing by asserting the equitable-parent doctrine if the third party and the natural parent were not married at the time the child was born or conceived.
 
Plaintiff and defendant were in a same-sex romantic relationship from 2001 until 2014. During their relationship, defendant was artificially inseminated and gave birth to the minor child at issue in this case. Shortly after the parties’ relationship ended, defendant denied plaintiff’s requests to spend time with the child. Due to defendant’s refusal, plaintiff filed suit, seeking parenting time with the child. Defendant filed a summary-disposition motion, arguing that plaintiff, as an unrelated third party lacked standing to seek parenting time with the child. The circuit court denied defendant’s motion and awarded plaintiff supervised parenting time with the minor child. Defendant then appealed the decision.
 
In reversing the circuit court and ruling in favor of the defendant the Court of Appeals made two important findings. First, absent a showing that the custody proceeding brought by the third party falls under MCL 722.26b (involving third-party guardians or limited guardians), or 722.26c(1)(b) (involving scenarios where the minor child’s biological parents never married, where one of the child’s parents has died or is missing and the other parent does not have legal custody, and where the third person is related to the child), then the third party will not have standing to initiate child custody proceedings, even if the third party resides with the child and has a personal stake in the outcome of the litigation. In re Anjoski, 283 Mich App 41, 50; 770 NW2d 1 (2009). Secondly, the Court of appeals held that Michigan’s equitable-parent doctrine only applies to confer standing when the child in question is born or conceived in wedlock.  Under Michigan’s equitable-parent doctrine, a husband who is not the biological father of a child born or conceived during wedlock may, nevertheless, be considered that child’s natural father if three requirements are satisfied: (1) the husband and the child must mutually acknowledge their father-child relationship, or the child’s mother must have cooperated in the development of that father-child relationship prior to the time that the divorce proceedings commenced; (2) the husband must express a desire to have parental rights to the child; and (3) the husband must be willing to accept the responsibility of paying child support. Van v Zahorik, 460 Mich 320, 330; 597 NW2d 15 (1999). Although the equitable-parent doctrine is described in terms of a heterosexual marriage, the Court of Appeals acknowledged that the doctrine would apply to same sex couples in light of the decision in Obergefell v. Hodges, ___US__; 135 S Ct 2584; 192 L Ed 2d 609 (2015)(holding that the fundamental right to marry is guaranteed to same sex couples.) However, the Court of Appeals determined that because there was no marriage between the parties before the birth or conception of the child, the equitable-parent doctrine would not apply. Furthermore the Court of Appeals stated that it would be improper to impose a marriage upon a same-sex couple years later simply because one party desires that the court do so. As a result the circuit court decision was reversed and remanded for entry of summary-disposition in favor of the defendant.
 
Judge Shapiro, concurring with the judgment wrote separately to address the scope of Obergefell’s application to Michigan’s equitable-parent doctrine. Judge Shapiro stated that because the ban on same-sex marriage was deemed to be unconstitutional, Michigan’s equitable adoption doctrine should be applied retroactively to same-sex couples if a factual inquiry shows that the couple would have been married at the time of the child’s birth or conception but did not do so because of an unconstitutional law preventing them from doing so in their state of residency.

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