The Michigan Supreme Court ruled Monday that nongenetic LGBTQ parents who were unconstitutionally denied the right to marry may seek custody of children they were raising with former partners.
The Case
The 5-2 ruling comes in the case of Carrie Pueblo v. Rachel Haas. The two women were in a relationship from the early 2000s until the early 2010s, according to court documents (PDF). They had a private civil commitment ceremony in June 2007 that “was presided over by a priest and involved the exchange of rings and vows to take one another as life partners.”
Later that year, they decided to start a family, via IVF, and Haas gave birth to a child in 2008. The child’s last name is a hyphenated version of both mothers’ names. Michigan law at the time, however, did not allow the women to marry, nor to use co-parent adoption to become a legal parent.
The women shared in parenting responsibilities, even after they broke up in 2012. In 2017, though, Haas cut off contact between the child and Pueblo. Pueblo sued for joint custody, but a trial court and an appeals court said she had no right to seek it.
The state Supreme Court overturned the lower court decisions, and in doing so, broadened the scope of the state’s “equitable parent” doctrine. Previously, under this doctrine, a person who is not a biological parent had been allowed to petition for custody and visitation when they have a parenting relationship with the child of their former legal spouse. In the current case, the court created “a limited extension” of the doctrine for people in same-sex couples “who were unconstitutionally prevented from marrying” before the 2015 U.S. Supreme Court ruling in Obergefell.
Justice Megan K. Cavanagh, writing for the majority, explained:
Withholding the benefit of the equitable-parent doctrine from couples who were previously unconstitutionally prohibited from marrying would perpetuate the harms identified in Obergefell: that denying same-sex couples the same legal treatment in marriage and all the benefits afforded to opposite-sex couples demeans them, stigmatizes their children and families, and teaches society that they are inferior….
She added:
The best interests of the child, with whom the would-be equitable parent fostered a relationship, are paramount. The children of same-sex partners bear no lesser rights to the enjoyment and support of two parents than children born to married opposite-sex parents. Many same-sex couples likely would have chosen to marry before taking on joint responsibility for a child had they been they legally permitted to do so. But for the inability of these couples to legally marry because of this state’s unconstitutional prohibitions, the equitable-parent doctrine would be available to them.
Because Pueblo met the existing requirements for the equitable-parent doctrine—she had developed a relationship with the child over a period of time, wanted parental rights, and was willing to pay child support, the court said that she can advance her claim for custody.
This means the case will go back to the trial court for a hearing where, as long as she can demonstrate that she and Haas would have married if they could have (which to me seems likely, given their 2007 ceremony), “she has the right to a best-interest evaluation for custody and parenting time.”
Next Steps
Justice Kyra H. Bolden, in a concurring opinion, agreed with the majority opinion, but also noted:
Given that many of our state laws around marriage, out-of-wedlock parenting, and reproductive technologies were enacted without consideration of Obergefell…, there appear to be many lingering puzzles remaining about how the laws as written can fit the practical realities of same-sex relationships…. statutory issues remain because state law does not yet fully contemplate the interaction between same-sex relationships and parenting.
She called on the legislature to address these issues.
As a recent report from the Movement Advancement Project has shown, LGBTQ parents around the country must deal with a “patchwork” of state parentage laws that often leave children at risk. Some states, such as Rhode Island, Connecticut, and Colorado, have recently modernized their laws to clarify and simplify paths to parentage for all families today, and others, including Hawaii, Kansas, Massachusetts, Nevada, and Pennsylvania, have introduced bills to do so. Michigan could be another one if the legislature takes Bolden’s advice to heart.
In the meantime, it’s important for LGBTQ parents and prospective parents to understand the growing number of ways in which they can secure their parent-child relationships. I hope you’ll check out LGBTQ Paths to Parentage Security, a new resource from GLBTQ Legal Advocates & Defenders (GLAD) and I, which explains the latest options and terminology.
