BY AJ TRAGER
LANSING – The Michigan Court of Appeals reversed its decision Nov. 19 on a 2013 custody case involving a lesbian couple where, following a divorce, the nonbiological mom was denied custody and visitation rights for a child she helped raise with her former partner.
Following the U.S. Supreme Court's decision in Obergefell v. Hodges, the Michigan Court of Appeals reversed its decision to dismiss the case http://publicdocs.courts.mi.gov:81/opinions/final/coa/20151119_c310710_42_310710o.opn.pdf#search="Stankevich v, Stankevich v. Milliron. The case has been remanded back to trial to determine whether Stankevich is an equitable parent to the child in light of the former couple's Canadian marriage which must now be recognized by the state of Michigan.
"Until the Obergefell decision, same-sex couples in Michigan were denied the right to marry, which has now been held to be unconstitutional. On that same basis, same-sex couples should not be denied the same protection of equitable parenthood because they were denied the option of marriage that opposite sex couples have always had. Children of same-sex couples also should not be denied the protections of both parents through equitable parenthood, because their parents were denied the right to marry in Michigan. This is something that Michigan courts or the Legislature will still need to address," Jay Kaplan, ACLU of Michigan LGBT special projects attorney, told BTL.
Jennifer Stankevich and Leanne Milliron were married in Canada in 2007 and separated in 2009. Before they split, Milliron gave birth to a child, conceived by artificial insemination. Upon separation the couple agreed to joint visitation with the child but could not come to a common agreement as to what the schedule would look like. Stankevich filed an action for custody and visitation rights in Dickenson County Circuit Court where the couple lived in the Upper Peninsula.
Even though they shared financial and parental responsibilities for the child while together, the court dismissed the claims because Michigan did not recognize same-sex marriages performed in other countries and states. Stankevich appealed the ruling and in October of 2013, the Michigan Court of Appeals upheld the decision by Dickinson County to throw out the lawsuit for custody.
Stankevich then appealed that decision up the judicial ladder to the Michigan Supreme Court, which rather than rule on the case, put their consideration in abeyance until a decision had been found in the DeBoer v. Snyder case. Following the U.S. Supreme Court's decision in Obergefell, the Michigan Supreme Court remanded the case back to the Court of Appeals.
"Obergefell requires Michigan to recognize same-sex marriages," the remand authored by the Michigan Court of Appeals reads. "Therefore, we reverse the order granting summary disposition in favor of defendant and remand for an evidentiary hearing concerning the validity of the parties' alleged Canadian marriage and the applicability of the equitable parent doctrine. We do not retain jurisdiction."
