When a heterosexual married couple has a baby, whether intentionally or by accident and whether or not the husband is the biological father, both parents are automatically legally recognized.
This is not true for same-sex couples in Michigan who have children. Only the birth parent or the parent who has legally adopted the child has any legal rights. Unless the co-parent has secured legal rights through a second parent adoption (something most Michigan couples do not have access to), he or she is literally a stranger in the eyes of the law.
This is never a safe situation for a family, but many same-sex couples have managed to have stable, healthy families despite the legal obstacles. Unfortunately, this is not always the case.
It's no secret that break-ups can be ugly, which is why when heterosexual couples divorce, the children of those couples have the law on their side. Disputes over custody, visitation, and financial support can be heard by the courts to decide what's in the children's best interests.
The children of same-sex couples, however, do not benefit from the court system, and though some couples are able to make their own arrangements and come to an agreement about what's in the best interest of the child, some legal parents use the fact that they hold all the legal cards against their ex. Without legal recognition, the co-parent is at the mercy of the legal parent when it comes to what role they will get to play in their child's life.
Mary and Debbie were one of those couples (Because of Mary's concerns about privacy for herself and her daughter, all identifying information, including names, has been changed). Several years after having their daughter, Jessica, through artificial insemination, the couple broke up. "It was not my choice to separate," said Mary. "In fact, I was a bit surprised."
Debbie, Jessica's birth mother, moved away with Jessica and initially allowed Mary limited visitation.
"What I would do would be to go and spend the night [in the city where Jessica now lives], stay in a hotel, and Jessica and I would go swimming because that was something we could do together," recalled Mary. "At first I was just able to visit her and then Jessica…wanted to spend the night with me. So she did, and that worked fine. It was actually pretty wonderful."
A wall in Mary's house is lined with pictures of Jessica, many of them taken at the hotel they stayed in.
"We kind of had our routine. I would take food, take games, take things for us to do and on Sunday mornings we'd go to breakfast at the hotel because that was included. And you know, at first, it was really pretty good. I mean, even though Debbie wouldn't let her come here to stay with me, I still had her there."
Then Debbie decided she didn't want Mary, Jessica's other parent for the first four and a half years of her life, to see Jessica anymore. Mary has no legal leg to stand on.
Lesbians and gay men behaving badly
According to Jay Kaplan, staff attorney for the American Civil Liberties Union of Michigan's LGBT project, Mary's is hardly an isolated case.
"Since we started [the LGBT project] three years ago we've gotten close to a dozen calls from gay and lesbian parents who've been in the same situation. A couple breaks up, the parent recognized by law doesn't want the co-parent to be involved with the child, and they take the child away," said Kaplan.
"It's a case of lesbians and gay men behaving badly. What some people are doing is they're using the fact that the other parent is not protected as a way to harm that person in the event that the relationship goes bad," said Kaplan. "It's mean and they know they can do it – they know that they have all the legal authority. They have all the cards."
Beverly Davidson, MSW, CSW, president of the Coalition for Adoption Rights Equality, knows all too well what can happen when co-parents aren't legally protected and the shortcomings of agreements or arrangements couples make to try to assemble some kind of legal relationship for both of them to the child.
"Some gay couples will do a co-parenting agreement, which is essentially a contract between them about their agreement…that shows intent and shows what the legal parent wants to do, but it won't necessarily hold up in court," she said. "That happened to me."
Davidson and her ex-partner had a son together. Davidson was not the birth mother. "When I was with my former partner we had a living will, we had power of attorney, we had guardianship papers drawn up in case she died, we had the co-parenting agreement, we had an emergency medical authorization form we drew up….So we did all of the things we humanly could to give me some kind of say-so about the baby in the event that his legal mother wasn't available."
Unfortunately none of these documents could protect Davidson's relationship to her son since it was not recognized by law.
"We broke up and for a year there was visitation, she did let me see him and then one day she just up and decided, 'This is too hard, I don't want to do this.' And basically after a year of doing visits she cut me out of his life."
Davidson hasn't seen her son in six years.
According to Kaplan, situations like this will continue so long as both parents aren't recognized by law. "If they both were recognized by law and there was a dispute regarding child custody then the court would look at that and look at what is in the best interests of the child," he said.
"With divorce the law says you have to sit down and at least try to work something out or the court is going to work it out for you," said Kaplan. "There's no such thing here."
Kaplan added, "The court will not entertain a motion to request custody or visitation from that co-parent because that co-parent isn't recognized by law. They're like a stranger."
In Kaplan's view, this is harmful to children. "In Michigan it seems that many, at least in our higher courts, have a very outdated view of what constitutes a family," he said, adding that only 25 percent of children live in a household with a mother and a father.
"If we're really concerned about protecting children and making sure they're in stable households and they have access to health care, they need to have both parents legally recognized," he said.
Proposal 2: making a bad situation worse
Both Kaplan and Davidson worry that the current situation, which is already hurting families, would be made much worse should Michigan pass Proposal 2, the marriage amendment that would ban marriage and civil unions for same-sex couples as well domestic partnerships for same and opposite-sex couples.
"My concern about the marriage amendment is that if it passes and CARE tried to get a co-parent or second parent adoption law passed (in Michigan) next session, conservatives and even moderate Republicans will say, 'Well I can't help you with this because the people of Michigan have spoken,'" Davidson said. "I'm worried they are going to take the people's vote further than they intended it to be."
Davidson added, "Again that's one of the unintended consequences of this marriage amendment. They say they want to protect marriage but really what they're going to do is destroy a lot of families."
"I think if this amendment passed it would make it much more difficult for gay and lesbian couples to be recognized in any way, and for their families to be recognized and receive legal benefits," said Kaplan.
Kaplan added, "The amendment applies to heterosexual unmarried couples as well. It's not just limited to gay couples."
For parents like Mary, the pain of loss is great.
"It's broken my heart," she said. "It's just been in the last month and a half that [Debbie] has said, 'You can't see Jessica at all, period.' So, I'm still trying to adjust to that. I still buy things that I think, you know, Jessica could use or would like. I still think about (things like) that."
Though she is fearful that going public with her story could jeopardize her chance to ever see her daughter again, Mary felt it was important that others know what she's going through. "Because it's so painful," she said. "It's wrong, it's just wrong. And it's not just wrong for me, it's wrong for Jessica. She has two parents and only one of them is allowed to be in her life."
Mary added, "In spite of how painful this is I would not give up the time I had with her. She's an incredible little girl. And [the current legal situation for same-sex parents is] something that's got to change. I mean, I even was willing to pay child support in exchange for being able to see Jessica on a regular basis. And Debbie didn't agree. Because I do feel like I have a responsibility [to Jessica]."
Mary's is a pain Davidson shares. "It's not something that you really ever truly get over because when you lose a child the pain of that loss is always with you every step, every day, every waking moment," she said. "People will ask me, 'How did you get over it, how did you deal with it?' You know, I don't really have any idea. Time has its way of lessening the pain a little, but the hole in your heart is always with you and its really difficult because its not like you can get absolute closure."
Bad for kids, bad for the community
Legal parents who shut co-parents out of their children's lives without good reason tarnish the reputation of the entire community, said Kaplan. "Parents who do that sort of thing do nothing in terms of positively reflecting our community and our ability to have children and to be parents and to have stable families," he said. "To use that advantage that you have legally as a way to hurt the other person is irresponsible and is harmful for the child and harmful to our community overall."
Davidson believes that keeping gay and lesbian families safe needs to start at home. "If we expect the larger society to accept our families and help protect our families…then we need to start with our own community. We need to be the role models for the rest of the world and I, frankly, don't think we're doing a very good job," she said.
"How do you do that to someone in your own community?" she asked. "It's one thing to have society in general discriminate against gays and lesbians, but to have gays and lesbians discriminate against gays and lesbians is reprehensible."
ACLU of Michigan LGBT Project: www.aclumich.org.
Coalition for a Fair Michigan: www.coalitionforafairmichigan.org.
We 2 Have Parental Rights, an online support group: www.we2haveparentalrights.com.>