By Dawn Wolfe Gutterman
DETROIT – The American Civil Liberties Union of Michigan is appealing to the Michigan Supreme Court on behalf of a divorced man whose overnight visitation with his children has been restricted by the Michigan Court of Appeals. The court order, based on an antiquated law that criminalizes “lewd and lascivious cohabitation,” prohibits Christian Muller’s girlfriend from sleeping at their shared home on the nights when the children are present.
The law, passed in 1838 – the same year that the state of Michigan criminalized interracial marriage – has implications for same-sex couples as well, according to Jay Kaplan, staff attorney for the ACLU of Michigan’s LGBT Project.
“Since we can’t get married, anytime a same-sex couple is living together people can try to use this law as an excuse for discrimination,” Kaplan said. During a divorce involving child custody issues, “Frequently judges will issue an order saying that neither parent can have someone staying overnight on a night when the children are present. When one divorced parent is heterosexual, that parent can marry the next person they’re involved with, but if one is gay or lesbian, they don’t have that option.”
The case began when Muller, a thirty-five year old Ferndale man who shares legal custody of his two daughters with his ex-wife, became involved in a committed relationship after the divorce. Muller’s ex-wife asked the court to forbid him from having overnight visitation with his children when his girlfriend, Michelle Moon, was present.
After a Friend of the Court referee would not recommend that her request be granted, the case went to Oakland County Circuit Judge Daniel Patrick O’Brien, who issued an order contrary to the decision of the referee, prohibiting either parent from having overnight visitation with the children when they had unrelated overnight guests of the opposite sex. Currently, Moon sleeps in her car, with friends, or occasionally with her parents when Muller’s children visit, according to the ACLU.
In December the Court of Appeals upheld O’Brien’s decision. A Dec. 28 editorial in the Lansing State Journal quoted the Court’s opinion as saying that, “The social policy of the state of Michigan is established by the Legislature, not the courts, and we note that MCL 750.335 prohibits lewd and lascivious cohabitation.”
Michigan is one of only seven states that retain a provision against cohabitation by single adults. The Dec. 28 Lansing State Journal editorial called for repeal of the law.
Kaplan held out little hope that the Michigan Supreme Court would overturn either the custody decision or the law it was founded on. According to Kaplan, the law has already been cited by the Supreme Court to allow discrimination in two cases, one involving a parenting dispute.
In the 2003 case, a man was fired from his job as a tennis pro in Washtenaw County because he was living with a woman without having married her. “The court cited this law as justification for him being lawfully fired,” Kaplan said.
The other case, Van vs. Vahorik, involved an unmarried heterosexual couple raising the female partner’s child together. When the couple separated, the man fought in court for visitation because he had helped raise the child. The Michigan Supreme Court denied his claim. “The opinion talked about ‘lascivious’ relationships – living together without being married,” Kaplan said.
The court said, “we’re not going to recognize that type of thing outside of a legal marriage,” and implied that had the couple been legally married, the court may have upheld the man’s parental rights despite the fact that he was not the biological father, said Kaplan.
“[The law] denies legitimacy to same-sex couples and can be used to legitimize discrimination against them,” said Kaplan. “Using this law in custody cases interferes with parent-child relationships. We don’t want the government interfering in things like that unless a particular case can be shown to be harmful to the child.”
“By forcing the woman that I share my life with to leave our home sends the message that daddy is doing something bad, daddy is doing something morally wrong,” said Muller. “This court order undermines my rights as a parent, as an adult, and as an American with the right to choose how to live my life.”
“This law itself should be found unconstitutional,” said Kaplan. “It goes against the privacy interests two adults have in choosing to live with one another – and for same-sex couples, that’s the only option we have. Why should the government be concerned with that?”
Barring death or retirement, there will be no changes in the makeup of the Michigan Supreme Court in 2006.