By John J. Schrot, Jr.

Technology continues to outpace the law, and logically will always do so. Family Law is not immune from the adverse consequences of playing catch-up. The repercussions are especially difficult when it affects the best interest of children.

The United States Supreme Court in June, 2015, in a 5-to-4 decision declared that marriage is a fundamental right inherent in the liberty of the person.1 The Court found that liberty extends to “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” The Court further found that marriage safeguards children and families. Certainly this decision will affect families in many ways.

Homosexual couples who had children prior to the passage of the Marriage Equality Act are facing difficulties. In Michigan, before the Act, couples were not permitted to marry and homosexual couples were not permitted to adopt together. Therefore, while one parent would have equal rights to the child (either through adoption or biologically), the other parent would not. After the passage of the Act, some of these couples who have adopted or had children chose to marry, while others did not. Some of these couples are now divorcing or breaking up, revealing a black hole in the legal system. Because one party had not adopted or given birth to the child, that party had no legal claim over the child.

In fact, the marital parentage presumption in Michigan, which presumes that one’s husband is the biological father of any children born during a marriage, is not applicable to homosexual couples. Since the marital parentage presumption is based on a biological connection, homosexual couples cannot use the presumption, or, at least, not in its current incarnation. Similarly, under MCL 722.25, if a dispute between the parents or between the parents and a third party arises, courts presume that it will be in the best interest of the child for custody to be awarded to a parent, absent clear and convincing evidence to the contrary.2 It is apparent that the parentage presumption is an essential component of many custody decisions and it is connected to deciding what is in the best interest of the child. With custodial arrangements in a post-marriage equality world, courts will be forced to grapple with the question of “whether parentage is a function of biology or who’s actually parenting a child.”3

We are seeing this conundrum of the law and technology being out of step in a custody case here in Michigan. The case involves a lesbian couple who used artificial insemination to produce a family. The two women were in a committed relationship for 15 years and, after two children, broke up. One woman is the biological parent of one child conceived by using a donor egg and a donor sperm, and the other child was conceived by using a donor sperm through intrauterine insemination. Neither parent adopted. The couple had raised the children since conception prior to the Supreme Court ruling that same-sex marriage was legal. Michigan law does not recognize them both as parents. Only the inseminated woman is recognized as a parent herein, and just of that one child.

The Michigan case is important because it addresses the new custody battle including same-sex couples who used artificial reproductive technology to have children before the Supreme Court legalized gay marriage. The case also has ramifications for all conceptions through in-vitro fertilization because of the lack of laws regulating such procedures. Michigan’s Legislature has not addressed the technological advancements in the field of artificial reproductive technology. Michigan will have to update its custody laws so as to avoid costing same-sex spouses their parental rights. Other states are well ahead of us in this regard.

There are a handful of states that legally recognize “intended parents” or “presumed parents,” including homosexual parents who have no biological connection to a child, but raise and nurture the child and hold the child out as their own.

Most states have adopted the Uniform Parentage Act, which is a set of standard rules for defining who the legal parents are when couples split up. However, Michigan has not adopted this Act in any way. In addition, it does not recognize “intended parents”. Michigan’s custody laws provide parental rights only to those who have a biological connection to a child, or those who adopt. A sperm donor or an egg donor can also argue for parental rights in Michigan.

The disenfranchised mother in the pending Michigan case has argued in part the equitable parent doctrine, which allows a spouse who is not a biological parent, but who has formed a bond with the child, to be treated as a parent after a divorce. Traditionally, this doctrine is only applied to heterosexual parents, but perhaps it should now apply to homosexual marriage due to its legality and as same-sex adoption is permitted. Michigan has expanded the equitable parent doctrine to same-sex couples in light of the United States Supreme Court Opinion in Obergefell.4

The equitable parent doctrine rose out of a matter in which a child was conceived and born during a marriage; the husband and the child acknowledged the father/child relationship, but husband was not the biological father; and upon divorce, the husband desired the rights of paternity and was willing to pay child support.5 This doctrine allows a third party to exercise parental rights, including custody and parenting time.6 However, there have been cases wherein the Courts have refused to extend the equitable parent doctrine to apply when the parties are unmarried and a child is born out of wedlock.7

The aforementioned Michigan case was just decided by the Michigan Court of Appeals.8 The Court concluded that the equitable parent doctrine does not extend to unmarried couples, irrespective of whether the couple involved is a heterosexual or a same-sex couple. Therefore, as this doctrine does not apply in this case, the unmarried partner (non-legal parent or third party) lacks standing to seek parenting time.9

One legal fundamental that technology must not change is the “best interests” of the child philosophy. It is imperative that same be the focus of the Courts. Certainly biological connection between a parent and child has great meaning, however that connection should be trumped by the emotional and psychological bond between a child and an equitable parent. Fortunately, the pendulum seems to be swinging in favor of keeping parents in children’s lives, even when there is no biological connection. Michigan needs a case with a set of facts different from the Lake case, suggesting the parties would have married prior to the birth of the child but for the ban on same-sex marriage in the parties’ state of residency; and, then the Court should be required to recognize the non-biological parent’s parental rights and determine custody and parenting time consistent with the best interests of the child.

Obergefell v Hodges, 135 S.Ct. 2588 (2015).
Therefore, State bans on same-sex marriage were declared invalid under both equal protection and due process analysis. The Obergefell decision marked the end of more than two years of intensive state and federal court litigation.
2 Vol. 1, Michigan Family Law, The Institute of Continuing Legal Education §12.51 (Eds. Hon. Marilyn J. Kelly, Judith A. Curtis, & Richard A. Roane, 2015).
3 G.M. Flilisko, After Obergefell: The Supreme Court Ruling Settled the Issue of Marriage Equality-While Unsettling Other Legal Matters, ABA Journal, 57, 59 (June 2016).
Kivari v Kivari, Michigan Court of Appeals, April 12, 2016 (unpublished Opinion).
Atkinson v Atkinson, 160 Mich App 601, 408 NW2d 516 (1987).
York v Morofsky, 225 Mich App 333, 571 NW2d 525 (1997); Soumis v Soumis, 218 Mich App 27, 553 NW2d 619 (1996).
Van v Zohorik, 227 Mich App 90, 575 NW2d 566 (1997); Killingbeck v Killingbeck, 269 Mich App 132, 711 NW2d 759 (2005).
8 Lake v Putnam, Michigan Court of Appeals, No. 330955, July 5, 2016 (for Publication).
The concurring opinion is informative in discussing the possible application of the equitable parent doctrine if the parties wanted to marry but could not because of the pre-Obergefell bans on the marriage, thus depriving the unmarried partner from being considered a “legal” parent.