By Michelle Garcia
Posted on Advocate.com December 23, 2010
The Michigan supreme court will decide next month whether it will hear a case from a lesbian who is requesting joint custody of her nonbiological children that she and her former partner raised together until September 2009.
Renee Harmon has not seen the three children — 8-year-old twin boys and an 11-year-old girl — she and Tammy Davis raised in 16 months.
“You have not only me, but my mother, grandmother, and brother who haven’t seen the children in 14 months,” Harmon told The Advocate in November. “You have children experiencing a huge loss, like a death. I just worry about them. And hopefully we can change things in Michigan.”
A lower court ruling gave Harmon and her attorneys, Dana Nessel and Nicole Childers, some hope for the future of their case. Nessel said that trial court judge Kathleen McCarthy provided an exhaustive list of examples of state and federal cases where the role of a parent was not always fulfilled by an adoptive guardian or biological mother or father. However, after Davis filed an emergency appeal with the Michigan court of appeals, the court reversed McCarthy’s decision, ordering Harmon’s petition for custody be dismissed.
“I wasn’t surprised that she appealed,” Harmon said. “We expected it. In fact, when the whole process started, we knew we would go to the supreme court level. It’s just discouraging that, as a parent, she’s not thinking of the children.”
“DNA alone does not make a parent,” Nessel said in a statement Thursday. According to the Nessel and Childers, Michigan is one of the few states where the laws are interpreted to prohibit the children of gay and lesbian parents from ever having two parents. Many other states either explicitly sanction adoption for same-sex couples or consider nonbiological parents “de facto” guardians.
In April, Davis’s attorney, David Viar, told The Advocate that his client’s case is not a gay rights case, but simply about a mother protecting her children. Nessel vastly disagrees.
“I think that’s literally the most ridiculous thing,” she said. “As Renee pointed out, if she was a man, she would have been allowed to marry Tammy, she would have been able to legally adopt those children, we would have gone to a regular parental custody trial, and this would have been resolved over a year ago — in fact a couple of years ago. In the state of Michigan, as the law has been interpreted at this point, there’s no law protecting gay and lesbian families. Instead, as interpreted, gay parents and their children have been relegated to status of second class people.”
by Jessica Carreras
Originally printed 2/25/2010 (Issue 1808 – Between The Lines News)
Trenton mother battles ex-partner for visitation rights to mutually raised children
Renee Harmon of Trenton has one wish this year: to be with her three children again.
As more and more same-sex couples are willing and able to have and adopt children, custody battles have sprung up all over the United States due to a lack of clear legislation on matters of marriage, adoption and what it means to be a “parent.”
In Harmon’s case, it meant being there for each of the births of the children carried by her ex-partner, Tammy Davis. It meant she was an integral part in decisions about their names, schooling, religion and upbringing. She changed diapers, attended parent-teacher conferences and had the kids spend time with their grandmother – all the things a biological parent would do.
But now, Harmon faces the possibility of a life without her kids. Davis refuses to allow her to see them, and in a state with no second-parent adoption, no rights of marriage and no legal standing for non-biological same-sex parents, Harmon’s battle could mean a lot more than just visitation rights. It could, in fact, change the future for Michigan’s LGBT parents.
Harmon’s case is one of many like it garnering attention lately. In Kentucky, a state with no equal rights for same-sex couples, a woman was given visitation rights to children she has no biological connection to – but had raised up until the time of her split from her partner. In Vermont, a mother who has denounced lesbianism and disappeared with her child faces arrest pending failure to show up in court for a case with her ex-partner.
Harmon’s attorneys, Dana Nessel and Nicole Childers, believe the recent rash of court decisions in favor of non-biological parents receiving at least visitation rights could work in their favor.
They’re also hoping to apply the Equitable Parent Doctrine to Harmon’s case, which has four specific conditions used to determine rights for a non-biological parents in opposite-sex couples. “My argument at this point is that our client meets every single one of those conditions,” Childers explained, “if that specific doctrine were equitably construed, meaning take out the gender-specific language and allow any person who can meet those four conditions to be an equitable parent.”
Indeed, Harmon does meet the qualifications as a third-party “de facto parent” – an entity protected by the U.S. Constitution.
“It cannot be disputed that the Plaintiff, Ms. Harmon, meets the definition of a de facto parent to the minor children of the parties,” the case brief states as an argument for her recognition. “She has both publicly and privately held herself out to be just as much as a natural parent to the minor children as the Defendant has.”
In fact, prior to Davis’ refusal to allow Harmon visitation rights, the two had what is known as a “de facto custodial agreement,” meaning that they had reached an understanding that Harmon would spend every other weekend and Wednesday nights with the children, as well as her birthday and several holidays. Davis helped Harmon purchase, paint and move into a condominium and the two remained amicable. “We tried to involve the kids and get them acclimated to the new environment and to show that we were working together, it wasn’t their fault, etc.,” Harmon recalled. “Everything seemed to be going pretty well.”
But in the spring of last year, things began to change. Davis began allowing Harmon less and less visitation time with the children they had raised together. She used time with the kids as leverage to get Harmon to sign off on the deed of the home they had owned together in Grosse Ile, and to put the condo solely in Harmon’s name. Davis continually promised a document guaranteeing Harmon’s visitation rights, but never actually followed through.
Harmon knew something was brewing, and sought legal counsel, only to be told her options were few.
“(The attorney) basically said there wasn’t anything I could do, that I pretty much had to abide by whatever (Davis) suggested because the law wasn’t on my side,” Harmon explained. “So at that point, I knew I didn’t have many options. I tried to maintain as much of a relationship as I could with the kids, because I knew she could take them at any moment.
“And obviously, that’s what happened.”
Harmon has not seen her three children since Sept. 7, 2009, when she was met at the door of her old home by Davis’ new partner, who told Harmon that the children were not hers and that she had no right to see them.
As Davis took the kids out to the school bus for their first day of school, Harmon said what she knew could possibly be her goodbyes. “They walked by me, I came up and said I loved them, they said they loved me and that was the last time I’ve seen them,” Harmon said.
Childers and Nessel aim to change things – not just for Harmon, but for future gay and lesbian Michiganders in the same situation. They realize the hurdles they’ll run into, but have a plan to avoid the argument that parenting rights are reserved only for those who are married.
“There’s going to have to be very specific facts, very specific conditions that must be met for this person to qualify to raise that claim under that equitable parent doctrine,” Childers said, adding that lumping same-sex parents in with other non-biological parents allows them to avoid the “marriage” question. “Based upon what other states have done that do not formally recognize same-sex unions, they have put in place very specific tests and guidelines for a party to have to meet before they can even bring the claim.”
Nessel is confident that given the facts of the case, it will be near impossible to deny that Harmon is a viable parent and deserves to see her kids. “I don’t think there’s anyone who could possibly look at what happened here – I don’t care what your opinion is on gay marriage, or on homosexuality or anything – could ever possibly look at this situation and see Renee Harmon as anything else but a parent to those children,” Nessel said.
Harmon hopes that the judge agrees. The next hearing is March 22 at the Wayne County Circuit Court, and Harmon vows to do everything in her power to be able to see her kids again. “I’m devastated and heartbroken that I haven’t seen my kids,” she said. “It’s hard, but I’m going to do everything I can to get them back. … They’re my children just as much as they are hers.”