Good News From the Michigan Supreme Court for LGBTQ+ Parents

LGBTQ+ attorneys, their clients and allies across the state are cheering after the Michigan Supreme Court ruled that unmarried parents will soon be able to seek parenting rights for their nonbiological children. Previously, in Michigan, the parent-child relationship was recognized solely within the context of legal marriage, something unavailable to same-sex couples before the 2015 ruling in Obergefell v. Hodges.

"That was a really good decision and man, it's been a long time coming, this issue of equal parenthood for LGBTQ parents," said Jay Kaplan, the attorney for the ACLU of Michigan's LGBT Project, about the case in question, Pueblo v. Haas. "Ever since I started working at the ACLU back in 2001, we've tried to make headway, and now was the right time."

Kaplan cited the composition of the court and other recent decisions as factors. What's more, he and others are excited about what else the landmark decision could mean for the LGBTQ+ community, even while some are calling it a narrow ruling.

Michigan had long been discriminatory in its application of the equitable parent doctrine. The 1999 decision Van v. Zahorik, which involved a cisgender heterosexual couple, left nonbiological parents without a legal leg to stand on. And it entirely shut out same-sex couples who were unable to marry.

"The long and short of this all means is if you were in a same-sex relationship that ended before the marriage equality decision, and you can provide, through the preponderance of evidence, that you would have gotten married - that this was a relationship that appears to be a marriage - then you will be able to have standing to request custody as an equitable parent," Kaplan said.

Kaplan pointed out this decision benefits a relatively small group of people because it's been eight years since same-sex couples were permitted to marry. For families where children and parents have lost contact for that many years, the damage may be irreparable.

Lake v. Putnam in 2016 was the first time the court entertained the equitable parent doctrine as it applies to same-sex individuals who could not marry in Michigan. And if they did marry elsewhere, Michigan would not recognize the marriage. "Seven years ago, when Lake was decided, many people who had been in a relationship with the other person- the person was denied standing because they were not the biological parent," noted attorney Angie Martell. The biological parent is considered the one who gave birth, whether or not genetically related.

Angie Martell. Courtesy photo

That kind of legal situation occurred in what Martell called one of their worst cases. Martell, of Iglesia Martell Law Firm PLLC, is the State Bar of Michigan LGBTQ section chair and a family law practitioner in Michigan, New York and Massachusetts. In this case, Martell represented a lesbian who was the nonbiological parent of a child the couple raised together until the child was 7. The parent-child bond with Martell's client was strong, but the parents' relationship unraveled due in part to emotional abuse.

"And then in a matter of hours," Martell said, "unbeknownst to the person, the bio mom packed everything up in a U-Haul while this person was visiting one of her relatives, fled in the middle of the night to another state and filed a PPO in the other state restricting the person from ever entering or seeing this person or finding out about where this person lived."

The biological mother was involved in law enforcement and was able to use connections to keep her former partner out of the picture. Five years have passed. Potentially, Martell's client could come forward and say they want to be recognized as the child's parent. But that's not likely due to the passage of time and the fact that the biological mom originally fled to a state hostile to LGBTQ+ issues.

The Pueblo ruling aims to prevent that kind of tragic scenario from playing out in Michigan again.

Kaplan and Martell both pointed to the footnotes or dicta to discern the potentially far-reaching implications of the decision. Most importantly, footnote six says that family law statutes use gendered language (i.e. husband and wife as opposed to spouse and spouse).

"Basically, what the court was saying in this footnote is, 'We think that these family law statutes that talk about male or husband and wife or male and female also should equally apply to same-sex couples,'" said Kaplan, who emphasized that dicta are not part of the opinion. On the legislative side, a package of bills is currently in the pipeline that would remove gendered marital language from Michigan's statutes entirely.

Martell mentioned another important takeaway.

"An equitable parent doctrine is a doctrine that many states embrace as being broader than just the biology of parentage, in terms of equitable parentage and in terms of de facto parentage. I think we're going to see more and more willingness of the courts to entertain that. Fewer than half the children across this nation live in traditional family structures."

The case was decided 5-2, with Chief Justice Elizabeth Clement siding with the Democratic-nominated justices.

As for the two justices who dissented, Zahra and Viviano, Martell expressed concern. Not only is Martell a family law practitioner, their personal history is key to their passion for putting the interests of the child first: As a 7-year-old, Martell appeared in the New York City courts because of their parents' custody battle.

"I'm glad that this case was decided because I think that it's going to be very helpful to children to have this equitable parent doctrine in place," Martell said. "But I also think Zahra and Viviano are not considering the far-reaching ramifications of ripping children from traditional family structures that are nontraditional because of this alleged cisgender heteronormative structure of mother/father that most of America doesn't have anymore."