by Jay Kaplan
You may have seen the recent media reports that singer Melissa Ethridge and her partner of five years, Tammy Lynn, are splitting up. The California couple had two children together. California law recognizes same-sex couples and allows for dissolution of a partnership through the courts, where disputes over property, child custody and visitation are resolved.
Conversely, Michigan law unfortunately does recognize same-sex relationships and the doors to the courts in Michigan remain closed to gay couples when their relationships end.
It's discouraging and disheartening that Michigan courts apparently only view parent-child relationships in the tidy world of traditional heterosexual nuclear families, when in fact there are so many children who do not live in that world and are being raised in non-traditional families. Our state legislature has yet to summon the courage or insight to amend Michigan law to acknowledge this reality. In the meantime, the courts and our elected lawmakers fail our children when they put "tradition" ahead of the best interest of child.
But there is an equally disheartening element in response to this prejudice at law: When same sex couples experiencing a contentious break-up use these barriers in the law to deny an established parent-child relationship.
Harmon v. Davis is one such case. It involves a lesbian couple in Wayne County who lived together for 19 years and had three children before breaking up in 2008. After the breakup, Davis, the birth mother, refused to let Harmon see their children. Harmon filed suit in Wayne County Circuit Court requesting parenting time. But Davis had other ideas and responded by denying that any parent-child relationship had existed between Harmon and the children and requesting that Harmon's suit be dismissed due to lack of legal standing.
In an enlightened decision, Wayne County Circuit Court Judge Kathleen McCarthy refused to dismiss the case. However, the victory was short-lived.
The decision was reversed by the Michigan Court of Appeals, dismissing Harmon's case because she does not and cannot qualify as a parent under Michigan law. According to the Court of Appeals, only a birth parent or an adoptive parent, a legal guardian, or a legal relative can seek child custody or visitation and the court has no equitable power to entertain an action by anybody else, regardless of their actual relationship with the children.
Davis v. Harmon unfortunately is not the only example of parents behaving badly.
The ACLU of Michigan is currently involved in a case representing the non-biological mother in a parenting time dispute. The couple had a child during their relationship and jointly adopted through a process called "second-parent adoption," giving each partner legal standing as a parent. After the couple broke up, they entered into an agreement regarding custody and parenting time, but the biological mother eventually refused to honor the agreement.
Five years after the second-parent adoption was granted, the biological mother asked the court to void the adoption, which would effectively strip her former partner of all legal rights as parent to their daughter. In her case, the biological mother maintained that Michigan law does not permit gay couples to jointly adopt because they are not married, so the adoption should have never been granted.
The ramifications of this case go far beyond a messy breakup – should this adoption be voided, other second parent adoptions involving gay parents are at risk of being invalidated.
The laws that many of these parents have used against their former partners are the very laws that as a community we have fought against for years. Other states have recognized the second non-legal parent to have legal standing, but the Michigan Supreme Court has limited the concept of de facto parenthood to legal marriages.
Furthermore, many Michigan judges mistakenly believe that our adoption law limits joint adoptions to only legally married couples, making it difficult, if not impossible, for a child of same-sex partners to have the legal protection of both parents. Since Michigan voters passed Proposition 2 of 2004 to amend our state constitution to prohibit same sex couples from marrying or, as interpreted by the Michigan Supreme Court, prohibiting civil unions, domestic partnerships and the recognition of same-sex relationships by the state and local governments, gay parents are left out of the mix.
Granted, break-ups between same-sex couples can be just as messy as between heterosexual couples. However, when heterosexual parents have a child custody dispute regarding parental fitness, they turn to the courts, where a determination is made based on the best interests of the child.
Under Michigan child custody law, it is a rebuttable presumption that it is in the best interests of a child to have continued contact with both parents after a divorce. But because current Michigan law treats non-biological gay parents as strangers to their children, the biological parent can effectively unilaterally decide to end the others relationship with the child.
It is truly distressing to see members of the LGBT community use inadequacies in Michigan family law to harm one another. The commitment made by partners in a same-sex relationship includes the responsibility to parent their children, and that responsibility doesn't end just because the relationship ends. If we are to change the hearts and minds of our fellow Michigan citizens regarding our fundamental right to marry and raise our families with dignity, then we cannot use the courts for personal retaliation. Michigan law fails our families and our children, but that's no excuse for gay people to do the same.
