For Children's Sake, Courts Should Embrace Equitable Parenthood Measures for LGBT Co-Parents

POST BY Jay Kaplan LGBT Legal Project Staff Attorney

UPDATE: On July 5, 2016, the Michigan Court of Appeals officially made it more difficult for same-sex co-parents to have parental rights with their children after a break-up. The Court reversed a favorable decision in Lake v Putnam, where our client Michelle Lake co-parented her son with her former partner, Kerri Putnam prior to marriage equality being available in Michigan.  After the parties broke up, Putnam took their son away and refused to allow Michelle to have any contact.  She filed a petition for parenting time arguing that she was an equitable parent and had legal standing to do so.  The trial court agreed and Putnam appealed.  Without even considering the best interests of their son, the Court of Appeals majority stated that because the parties were not married (even though Michigan law unconstitutionally prohibited them from doing so), Michelle had no parental rights nor legal standing to be able to see her son. 

Imagine you have a son.

Now, imagine him being suddenly ripped away from you. You can’t talk to him, even by phone. You can’t wipe his nose when it runs or dry his tears when they stream down his cheeks. You are suddenly, and possibly permanently, erased from his world. And, to make matters even worse, you are told that you are not his legal parent and thus have no right to be in your child’s life.

For far too many LGBT co-parents, what you’ve imagined, this nightmare,  is their everyday reality. Such has been the sorry state of family law for LGBT co-parents for more than two decades in the Michigan. 

Because same-sex couples could not marry in our state until the U.S. Supreme Court’s historic decision on June 26, 2015, LGBT relationships and families were not recognized. This meant that same-sex couples having children could not jointly adopt and only one parent (usually the biological lesbian mom) was recognized under Michigan law.  The non-legal co-parent, no matter how bonded she was to her child, was a stranger to that child in the eyes of Michigan law. 

Thus if the same-sex couple broke up, the one legal parent held all the cards with regards to child custody or visitation issues. Needless to say, this has led to some ugly and very sad outcomes.

However, there’s a potential remedy to this problem, a judicial concept to recognize non-legal parents called “equitable parenthood.” If a co-parent can demonstrate that she had a parent-child relationship with the  child that was fostered and encouraged by the legal parent during their relationship, the equitable parent would be afforded legal standing to request custody and parenting time.  

The ACLU of Michigan will be arguing in favor of this concept on Tuesday before the Michigan Court of Appeals in Detroit. In the case, Lake v. Putnam, we are arguing on behalf of Michelle Lake, a woman who has been denied contact with her 8-year-old son for the past year.  We hope to persuade the panel of three judges to consider the harm that is being done to children of same-sex parents when a parent is torn away from them because Michigan law in the past has unconstitutionally discriminated against their parents’ relationship.

The legal concept of “equitable parenthood” was limited to the context of a legal marriage, thanks to a highly flawed decision by the Michigan Supreme Court in 1999. Nevertheless, this decision continues to be case law precedent in Michigan, and since same-sex couples could not marry in our state, for two decades, LGBT co-parents could not be considered equitable parents. Many were denied the ability to ever see their children again by their former same-sex partners, who took this action not out of the best interests of children, but out of spite, vindictiveness, and because they could. This has been the state of LGBT family law in Michigan for far too long: former  same-sex partners behaving badly and judges abdicating their responsibility to look out for the best interests of children of same-sex couples.

Now, though, we believe the Supreme Court marriage equality decision changes things for Michigan LGBT co-parents. Obergefell v. Hodges stands for the principle that same-sex couples cannot be denied the right to marry or the benefits of marriage. If our state courts have chosen to limit the protection of equitable parenthood as a benefit of marriage, LGBT co-parents cannot be denied this benefit. After all, they were unconstitutionally prohibited from marrying their partner during their relationship.

We have been successful in making this argument in several trial courts in Michigan. Unfortunately, there have been some same-sex legal parents resistant to this change of legal landscape, wanting to continue having unilateral control over whether they can erase a co-parent from their children’s lives. They have chosen to appeal these favorable decisions to Michigan’s appellate courts, staying the proceedings which further delay a co-parent being able to see her child.

We say enough already.

As the Supreme Court has said, same-sex relationships are to be afforded the equal dignity and respect under our Constitution, and this extends to the children of same-sex relationships. It is time for Michigan’s appellate courts to both consider and comply with this reality.

We hope to persuade the panel of three judges to consider the harm that is being done to children of same-sex parents when a parent is torn away from them because Michigan law in the past has unconstitutionally discriminated against their parents’ relationship.