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BY JAY KAPLAN
I’m upset — no, I’m angry as hell — at certain members of our LGBT community.
I’m outraged at those would-be partners in a same-sex relationship who, once the relationship sours, not only deny the existence of such relationships but also vengefully turn to discriminatory Michigan law to justify taking children away from the former partner they once co-parented with.
I’m furious at those LGBT attorneys who represent these partners, lawyers who use the very same legal tools of oppression that harm all members of the LGBT community to score one for their client, obliviously dragging the rest of the LGBT community and their families down. Let me (take a deep breath and) explain.
For decades, Michigan family law and Michigan courts have acted as though LGBT families did not exist in our state. When a same-sex couple broke up, courts refused to take jurisdiction over matters concerning child custody, visitation and distribution of property. This also made it easy for same-sex partners to walk away from a relationship and behave as though it never existed, even if it meant children suffering the collateral damage.
It started with adoption. Although Michigan appellate courts have never specifically addressed the issue of whether same-sex couples could jointly adopt the children that they were raising together, some judges in Michigan erroneously interpreted the adoption law to require that couples have to be legally married. Since Michigan would not permit same-sex couples to marry (and would not recognize marriages between same-sex couples from other states) until the recent United States Supreme Court decision, that meant they could not jointly adopt and that 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 as far as Michigan was concerned. Thus, in the event of a break up, the one legal parent held all the cards with regards to custody or visitation issues.
In 1988, the Michigan Supreme Court, in the case of Atkinson v. Atkinson, came up with the concept of equitable parenthood. Atkinson involved a heterosexual marriage wherein the wife had a child from a previous marriage and co-parented with her second husband. After she divorced her second husband, she refused to allow him to have visitation with her son, even though her son had regarded the second husband as his father. The Supreme Court found the second husband to be an equitable parent, because he had developed a parent-child relationship with his step-son that had been encouraged by his former wife during the marriage. The court ruled that it was in the best interests of this child to have continued contact with his step-father. It was a good decision that could help LGBT co-parents who were not recognized under Michigan law.
However, the Michigan Supreme Court revisited the issue of equitable parenthood in 1999, in the case of Van v. Zahorik. Van involved an unmarried heterosexual couple, a boyfriend who co-parented his girlfriend’s child from another relationship. After the couple broke up, he argued that he should be considered an equitable parent. This time, a newly constituted conservative majority on the Michigan Supreme Court disagreed. They said that equitable parenthood was limited to the context of a legal marriage and since the parties had not married, the boyfriend could not request custody or visitation. This also meant that LGBT co-parents — who were prohibited from marrying their partners — could be denied contact with their children but had no legal standing as equitable parents to petition the courts for parenting time.
Van is a flawed legal decision in so many ways, but most importantly in that it elevates the marital status of the parties over the best interests of children, which is what is supposed to be the main focus of Michigan courts in deciding child custody disputes. And yet it became the law of Michigan and for more than a decade, dozens of LGBT co-parents had their children taken away from them by their former partners (the legal parent) and found the doors of Michigan courts closed to them. As a heartbreaking consequence, many of these co-parents never saw their children again.
The U.S. Supreme Court’s historic June decision in Obergefell v. Hodges — which held that same-sex couples have a constitutional right to legally marry and have their marriages recognized in 50 states — will usher in a new era in Michigan family law in which LGBT family relationships are endowed with the same rights, protections and responsibilities that are accorded to heterosexual married couples. However, will it help same-sex couples who broke up before marriage was available in Michigan, and who were raising children together? I believe that it should.
A LGBT co-parent should not be denied recognition as an equitable parent because she was unable to be legally married in the state of Michigan due to laws that have now been declared unconstitutional. Indeed, the Michigan Supreme Court just recently vacated a Court of Appeals decision denying a lesbian co-parent equitable parent status — based on the Van v. Zahorik ruling — and sent the case back to the Court of Appeals to reconsider in light of the Obergefell decision. That is hopeful. And yet, we still see legal LGBT parents denying their former partners co-parent status to have contact with the children they have raised together.
Seldom do the reasons for cutting off contact with the co-parent have anything to do with the best interests of the child. Usually the legal parent is in a new relationship and no longer finds it convenient to have her former partner involved in her and their children’s lives. And when that co-parent files a case in court arguing that she should be an equitable parent, the legal mom’s attorney argues the bad law established by the Van case to deny this co-parent legal standing to petition in court. Even when the facts are clear that this child has two moms. Even when it’s in the best interests of that child to continue to have those two moms.
Worse, the legal moms in such cases are often represented by an attorney from the LGBT community, men and women who seem to have no qualms about using anti-LGBT law to argue in favor of irrevocably severing the ties between a child and the parent with no legal standing. Both mom and attorney are wrong and irresponsible.
For years we have asked that our relationships be accorded the same benefits, protections and responsibilities that heterosexual couples have. Granted, heterosexual couples can behave just as badly in a break up or divorce, putting their grievances against their former partners before the welfare of their children. However, we in the LGBT community need to be better. For years our families have been denied recognition, dignity and respect. When we engage in bad behavior, when we argue that our relationships have no meaning, no significance under the Michigan law, we undermine every argument our community makes for full equality. And we harm children.
Stop this madness, this selfishness. And until we do, my outrage will continue to boil.