In what can be considered a win for LGBTQ+ parents and their children in the state of Michigan, the Michigan Court of Appeals has overturned a lower court's decision involving a lesbian couple's custody dispute.
When Lanesha Matthews and Kyresha LeFever were in a relationship from 2011 to 2014 — before same-sex marriage was legal — they began a family. Using reproductive technology, Matthews and LeFever bore twins using LeFever's egg that was fertilized by donor sperm and implanted in Matthews' uterus. After co-parenting the children for several years, the partnership ended and a custody battle ensued. Until that time, both mothers' names were listed on the birth certificate. However, Wayne County Circuit Court Judge Melissa Cox who heard the case didn't see it that way.
"The court was raising the question as to … who is considered to be a legal parent," said Jay Kaplan, staff attorney for the ACLU of Michigan's LGBT Project. "And through some very kind of twisted analogy, the family court judge decided that this relationship was like a surrogacy parenthood agreement. And the gestational mom, because she wasn't related by genetics, that she was not a natural parent."
The judge ordered Matthews' name removed from the birth certificate. Going forward, she would be treated as a third party.
"In term of the custody dispute, it's a much larger burden for a third party to challenge the other parent's custody arrangement," Kaplan explained. "What was flawed about this in so many ways is that most state courts do not define a parent solely based on being genetically related. We have people who adopt children; we have heterosexual couples who use reproductive technology who might not be able to have children on their own."
The judge appeared to view the couple as having entered a surrogacy agreement where one contracts with someone to carry a child. In such agreements, the person who is the gestational mother waives her rights to parenthood. Kaplan emphasized that this was not at all the situation involving these two individuals.
In a majority opinion by Judges Kirsten Frank Kelly and Michael Riordan written April 1, the Michigan Court of Appeals disagreed with the lower court judge as well, stating the lower court "misapplied" the law and ordered the case returned to the Wayne County Circuit Court with Matthews once again designated a legal parent.
Kaplan said the Michigan Court of Appeals' ruling really is not a departure from business as usual in custody disputes.
"In my opinion, it was so blatantly obvious what the lower court did, how wrong it was, how wrong the conclusion was, and how the judge [incorrectly] reached this conclusion, that this decision needed to be overturned," Kaplan said. "The result was outrageous. You have a mom who's been co-parenting her children, has a relationship with her children for seven years, and the court's saying, 'Oh, no, sorry, you're not a parent because you're not biologically related to the child and, therefore, I'm going to strip you of your legal status as a parent.' And the analysis of how she arrived at that result was pretty tortured."
Kaplan said that this decision is a notable one because it highlights that in a same-sex relationship, where reproductive technology is used to bear children and one of the individuals is not biologically related, both deserve equal footing as parents.
"This decision makes it clearer in the realm of same-sex couples [that] you do not have to be biologically related in order to be a legal parent," Kaplan affirmed. "I think that's why this decision is very significant."
Kaplan also thought the concurring opinion of Judge Elizabeth Gleicher was worthy of note. She looked at the Constitutional issues, concluding that the couple had a constitutionally protected right to form a family using whatever method they chose to use.
First noting that in case law, also known as precedent, gestational mothers are always recognized as parents, Kaplan added,
"What [Judge Gleicher] opined was that … even for same-sex couples who might not be able to avail themselves to that kind of reproductive technology involving an egg being placed in another mom's uterus — even situations that might involve a sperm donor, or a male same-sex couple where neither one is going to be biologically related to the child — even they are parents, too.
"And that's a constitutionally protected right," he continued. "So that's a concurring opinion, not the majority opinion. So, it's not necessarily the law of the land in Michigan, but it's relatively rare that in a state court the judges will weigh in on these Constitutional issues. I think that's really significant."
Kaplan went on to explain how this decision could have an impact in terms of Michigan's equitable parent doctrine.
"We've had some really bad court stuff regarding same-sex couples who couldn't get married and they couldn't do an adoption, and you had the biological parent as the only one is recognized on the birth certificate," Kaplan said. "And when these couples broke up, you saw the nonlegal parent denied the ability to see their children. "
In 1999, the Michigan Supreme Court ruled that one can only be an equitable parent if legally married. And because same-sex couples couldn't get legally married at the time, they couldn't have that status. So, for many years, one of the parents could lose custody and perhaps all contact with their children, and they didn't have a legal remedy in court.
"After the marriage equality decision, we tried to go back in Michigan courts and we tried to get findings that some of these moms were equitable parents and yet, those decisions were reversed by the Michigan Court of Appeals saying they weren't married," Kaplan said. "Well, they couldn't get married because under the Constitution they were denied the right to get married."
Although the majority opinion in the abovementioned custody case does not address that issue, Judge Gleicher's concurring opinion does. Basically, she calls the 1999 decision, Van v. Zahorik, outdated and believes those parents should have been considered legal parents to their children.
"The issue with equitable parenthood, it's not a law, it's a judicial doctrine," Kaplan explained. "We tried about five years ago to get that decision reversed by the Michigan Supreme Court, to take up the case. They refused to do so. Maybe there might be an opportunity now given this decision, someone might be able to try to make an argument that the court now needs to take a look at Van v. Zahorik"
Kaplan is hopeful that given the newly progressive majority on the Michigan Supreme Court as of the 2020 election, there may be progress in this arena.
"In fact, Chief Justice McCormack, she wrote a really strong dissent five years ago to the Michigan Supreme Court's refusal to take up this case and she was talking about the harm that is done to children when they lose a parent unilaterally, based on the whim of the other parent," Kaplan said. "There might be some way to revisit that issue of an equitable parent as a result of this concurring opinion."
That remains to be seen. Returning to the Michigan Court of Appeals' decision regarding Matthews and LeFever, the Court of Appeals concluded that "the circuit court shall award legal custody of the child based on a determination of the best interests of the child."
Kaplan agreed with this, whether both parents are legal parents or one is considered in the eyes of the law a third party.
"I think if there's evidence showing both of them were intended to be parents, both of them served in the role of parents, both of them are regarded by their children as their parents," he said. "Yes, they should have equal footing."
And he views it as good news that the case will go back to the Wayne County Circuit Court where both moms are recognized as legal parents.
"It is applying what's in the best interest of the child, not putting one parent on a higher plane than the other," Kaplan continued. "It's certainly gonna be a better situation for these children, because both these parents have played and continue to play a role in their children's lives. As it should be."