Advertisement

Equitable Parenthood Still Penalizing LGBT Parents

BY AJ TRAGER

DETROIT – A unanimous vote July 5 by the Michigan Court of Appeals found that a lesbian co-parent lacked standing to seek parenting time or custody rights over the biological child of her ex-girlfriend who she helped raise.
The court reversed a decision by the Washtenaw Circuit Court and held that the co-parent was a "third party" and didn't fit the standing requirements of the Michigan Child Custody Act.
Michelle Lake and Kerri Putnam were a cohabiting couple from 2001 to 2014. After Putnam was artificially inseminated they raised the child together for five years until their breakup in 2014, after which Putnam refused Lake any parenting time with the child she helped raise.
Due to Michigan law at the time, Putnam and Lake were unable to marry in the state and did not seek marriage elsewhere. As a result, Lake was rendered a legal stranger and fought to gain parenting rights.
The Michigan equitable parenthood doctrine allows non-biological parents to petition for custody and visitation when they have a parenting relationship with a child. Lower courts in the state have found that the doctrine can exist only when the non-biological parent is legally married to the biological parent.
"While we acknowledge that the issue presented in this case is complex, we simply do not believe it is within courts' discretion to retroactively transform an unmarried couples' past relationship into marriage for custody proceedings in light of the U.S. Supreme Court's decision in Obergefell v Hodges, at the request of one party," Judge Colleen A. O'Brien wrote for the court. "Stated differently, it is, in our view, improper for a court to impose, several years later, a marriage upon a same-sex unmarried couple simply because one party desires that we do so."
Prior to the marriage ruling last year, lesbian and gay couples could not legally co-adopt children because Michigan law requires the parties be married. The state neither granted in-state nor recognized out-of-state same-sex marriages. Once the U.S. Supreme Court ruled in favor of same-sex marriage, LGBT couples could legally co-adopt.
"What I find so disheartening is that in the opinion there isn't a single mention of the child," Jay Kaplan, LGBT special projects attorney for the ACLU of Michigan said. "The loser in all of this is the little boy."
There are multiple equitable parenthood cases currently going through the court system but Kaplan is skeptical that the courts will offer a different opinion to change the current "unconstitutional law" that openly discriminates against LGBT parents.
"We need legislation. We need a law that spells out equitable parenthood and doesn't tie it to the marriage status and talks about the bond that is fostered between the co-parent and the child, that is encouraged by the other legal parent and is in the best interest of the child. We need a law that makes that clear," Kaplan said.
Brien wrote the opinion for the panel, with Judge Douglas B. Shapiro filing a concurring opinion. Michelle Lake was represented by the ACLU of Michigan.

Advertisement
Advertisement
Advertisement