By Jay Kaplan
Last week's decision in the ACLU's equitable parent case, Lake v Putnam, was definitely a step backward for LGBT rights in Michigan.
A panel of three Michigan Court of Appeal judges issued an opinion denying legal standing to our plaintiff, Michelle Lake, to see her son, whom she had co-parented since birth with former partner Kerri Putnam. Putnam, the biological mother and the only legal parent recognized by Michigan, denied Michelle all contact with their son after their relationship ended.
"Equitable parent" is a legal doctrine wherein a person who has an established parent relationship with a child that was encouraged and fostered by the child's legal parent, is given legal standing to seek custody and visitation in court. In Michigan, the equitable parent doctrine was the result of a 1988 Michigan Court of Appeals decision, in Atkinson v Atkinson, that considered the harm a child faces when he/she is denied contact with one of his/her parents, due to the unilateral action of the legal biological parent.
This judicial doctrine was severely undermined by the Michigan Supreme Court in the 1999 decision of Van v Zahorik, where the court said this doctrine can only be recognized in the context of a legal marriage. The Court majority railed against unmarried couples raising children while in "meretricious relationships" and refused to recognize a heterosexual man who co-parented his former girlfriend's children as an equitable parent.
The best interests of the children were not even considered in this very flawed decision. All that mattered was the marital status of the parties. And since LGBT couples could not marry in Michigan until 2015, LGBT co-parents could legally be denied this protection of equitable parent, meaning these co-parents could be "erased" from their children's lives according to the whims – and, sometimes, vindictiveness – of the biological parent.
And in countless heartbreaking situations, too many of these men and women were indeed "erased."
But the U.S. Supreme Court decision in Obergefell v Hodges should have changed things. Obergefell held not only that it was unconstitutional to deny same-sex couples the right to marry, but also the benefits of marriage. And if equitable parent is considered by the Michigan Supreme Court to be a benefit of marriage then an LGBT co-parent like Michelle Lake should not be denied this benefit. After all, she was unconstitutionally denied the right to marry her partner while they were in a relationship.
In other words, Michigan courts have to grapple with the reality of the collateral damage caused by the state's adamant refusal to recognize LGBT relationships and LGBT families, and included in this damage is the harm that can come to children when one parent is suddenly yanked out their lives. Children of heterosexual parents, who are subject of custody disputes, have the courts to arbitrate these disputes, and the courts to look out for their best interests. Not so for children of LGBT parents whose parents' relationships ended before marriage equality was available in Michigan.
Last week's decision means another child of LGBT parents finds his mommy torn from his life because of discriminatory policies of our state, because of bad case law, and because of the unwillingness of Michigan's appellate courts to look out of the best interests of these children.
Yes, you could say that I'm angry, frustrated, disappointed and concerned about our Michigan courts regarding this issue.
But I'm also not one to dwell on negativity. I see a silver lining in Judge Shapiro's concurrence in Lake v Putnam, where he proposes that LGBT co-parents should be afforded the protection of equitable parent when they can demonstrate factually that the couple would have married in Michigan had state law permitted them to.
We have another case Mabry v Mabry, whose application for leave to appeal is pending before the Michigan Supreme Court. Should the Supreme Court grant leave, we believe we have the strong facts to demonstrate a marriage-like relationship that should afford our client this equitable parent protection.
Such a favorable decision could help many LGBT co-parents, but the only way we are going to make sure that Michigan courts focus on the best interests of children of LGBT parents – instead of their marital status (or their marriage-like status) – is to have a law in Michigan that specifically spells out the requirements for equitable parent: a parental bond between an adult and a child.
I repeat: the parental bond between the adult and the child.
Given our present Michigan legislature, getting this law passed will require a great deal of heavy lifting, including education of both our lawmakers and the general public. However, it is worth that heavy lifting to provide protection and stability for children.
Make no mistake about it. Last week's decision in Lake v Putnam hurts the struggle for LGBT equality. It hurts LGBT co-parents. But most importantly, it hurts and harms the kids of LGBT parents.
