On a day that was overflowing with emotion from all parties, April and Jayne Deboer-Rowse were finally able to officially become legal parents to all 5 of their beautiful children. The battle that started on January 23, 2012, in a federal court house in Detroit, finally came to a conclusion on Thursday, November 5, 2015, in the Oakland County Circuit Court. Judge Karen D. McDonald, who presided over the hearing, was clearly feeling the excitement that filled the room as she questioned both April and Jayne about the legal obligations they were about to undertake. After the obligatory questions were asked, and the hearing concluded, Judge McDonald gave big hugs to April and Jayne as she congratulated them.
After weeks of time spent assembling the packets for the Family Court, attorneys of record, Dana Nessel and Chris Kessel were happy to have only a minor role as the hearing proceeded. With the adoption hearing over, everyone (including some of the local reporters) enjoyed some cake. Rarely do long court battles have completely happy endings…thankfully this one did.
Below are links from various local news outlets that covered the hearing.
Here is a link to a story by Fox 2 Detroit.
Here is a link to a story by the Detroit Free Press.
Here is a link to a story by the Detroit News.
Here is a link to a story by the Pontiac Morning Sun.
Having your name on the birth certificate is not enough; you need a second-parent adoption.
On June 26, 2015, the United States Supreme Court ruled that denying marriage licenses to same-sex couples violates their 14th Amendment rights; specifically the Due Process and Equal Protection clauses. This meant that once these same-sex couples were issued licenses and were officially married, they would have the same rights as their opposite sex counterparts. As counties across Michigan began issuing marriage licenses and couples began getting married, those same couples were left unsure as how to proceed with respect to their children; specifically what is the best way to protect the second – non-biological – parent’s rights as a parent to a child born during the course of their marriage?
Initially, the consensus was that if the non-biological parent was placed on the birth certificate, they would simply become the second “legal” parent, thus their parental rights would be protected. However, this is absolutely not the case. In fact, the non-biological parent in a same sex marriage is particularly susceptible to losing their status as legal parent of their non-biological child, regardless of whether their name is on the child’s birth certificate.
In order to better understand the problem, it is necessary to understand two legal issues: 1) the definition of “parent” in accordance with Michigan’s Custody Act; and 2) the rebuttable presumption of paternity.
The Michigan Custody Act (MCA) defines a “parent” as “the natural or adoptive parent of a child.”
The rebuttable presumption of paternity is a fairly simple concept; a child born while a couple is married is presumed to be the biological child of the married couple. This presumption is codified in MCL 700.2114(a), where the “parent and child relationship” is defined follows:
“If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for purposes of intestate succession. A child conceived by a married woman with the consent of her husband following utilization of assisted reproductive technology is considered as their child for purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence. If a man and a woman participated in a marriage ceremony in apparent compliance with the law before the birth of a child, even though the attempted marriage may be void, the child is presumed to be their child for purposes of intestate succession.”
However, this presumption may be rebutted by another party, who may claim that they are the actual, natural parent of a child. This is where things can get complicated and where merely having a second parent’s name on a birth certificate (instead of performing a second parent adoption) can get couples into trouble.
The MCA is clear about what defines a parent in the state of Michigan: a person must be either the “natural or adoptive” parent of a child. Having a name on a birth certificate is not good enough. It may be a nice document to get framed, but it does not protect the second – non-biological parent – from having their parental rights stripped. This could happen in the form of a third party, claiming to be the actual parent, who wants custody of a child. Sadly, this could also come when a same sex-couple’s relationship dissolves and the natural parent does not want the second – non-biological parent – to be in the life of their child. See the case Dana Nessel argued in Harmon v Davis, 489 Mich 986 (2011) for context about the devastating realty of this scenario. Detroit Free Press article
The issue is even more apparent when examined through the lens of the rebuttable presumption of paternity. The rebuttable presumption may be challenged by showing that the second – non-biological – parent is not the “natural” parent of the child. The reason this is such a problem for same-sex couples is obvious as only one spouse in a same-sex couple can be the biological parent of a child.
Fortunately, there is an incredibly simple way to avoid the very serious complications and pitfalls of not being considered a true parent even when your name is already on a child’s birth certificate. Second-parent adoption is not only the easy solution, it is the only solution to the problem. Once you complete a second-parent adoption, you are considered a parent to your child under Michigan law. Problem solved.
The area surrounding the legal rights of same-sex couples and their families is a new and sometimes confusing one. However, the attorneys at Nessel and Kessel Law are the most knowledgeable and experienced attorneys in the State of Michigan on these matters. If you wish to discuss second-parent adoption to protect yourself and your family, contact us at (313) 556-2300 or email us today.
Last week’s Supreme Court ruling hit the news waves like a tsunami–many were talking about the unconstitutionality of DOMA, despite rarely knowing what the decision actually means for same-sex couples in the United States. Ultimately, the high court determined that DOMA violated the 5th Amendment rights of married gay couples by denying them equal protection under the law. The majority wrote that although some states recognize a gay marriage, because the federal government does not, same-sex couples would be denied a myriad of federal
benefits (such as the tax benefits in the actual case heard in front of the Supreme Court) that heterosexual couples had access to. Therefore, in the eyes of the court, gay couples were treated differently.
While there are technically some instances in which government can discriminate against certain groups of people, to do so legally it must past a test. The Supreme Court said that discriminating against same-sex couples needed to pass the rational basis test to be lawful–meaning, there must be a “legitimate government interest” that would justify the need to discriminate. In the case most recently heard by the Supreme Court, no such legitimate interest could be found.
Even though Michigan’s ban on same-sex marriage and adoption is still written in the state constitution, the DOMA ruling does make the light at the end of the tunnel shine that much brighter in the Mitten State. Because the constitutional ban in Michigan clearly discriminates against same-sex marriage exactly like DOMA, attorneys for gay couples
are now able to argue that prohibiting their marriage or adoption serves no legitimate government interest and therefore should be recognized as a denial of their 5th Amendment rights. While the majority wrote that it is the state’s job to define things like marriage, it is required to do so within the rubric of constitutional protections.
The dedicated and experienced Detroit lawyers at Nessel and Kessel Law couldn’t be more pleased about the Supreme Court ruling, as it not only proclaims this legal injustice as unconstitutional but also paves the way for many other same-sex couples (in Michigan and around the country) to enjoy the same benefits that heterosexual couples do. We are hopeful that as the waves of change continue to catch on, gay couples (like our clients April DeBoer and Jayne Rowse
), will have the opportunity to marry and adopt lawfully and without prejudice.
Should you have any questions on same-sex marriage or adoption in Michigan or any other state, please don’t hesitate to contact the skilled legal team at Nessel and Kessel Law. Nationally recognized for their devotion to the crusade for marriage equality, Dana Nessel and Chris Kessel are ready to fight for you. Do not hesitate to reach out to Nessel and Kessel Law at any time!
April and Jayne need your help! To contribute to their ongoing legal battle for adoption rights, please click here
The Detroit gay adoption attorneys at Nessel and Kessel Law are proud to announce that Dana Nessel will be at the Marriage and Family Expo at the Livonia Marriott as a featured speaker!
Taking place this Sunday, April 7th, 2013, at 2 p.m., Dana will discuss LGBT adoption and same-sex marriage in the state of Michigan. In addition to Nessel, Chris Kessel will also be in attendance during the expo to answer any questions guests may have regarding our pending lawsuit set to overturn the ban on same-sex marriage and adoption in Michigan, as well as how the U.S. Supreme Court cases can impact the law in the Mitten state.
For more information on the DeBoer Rowse adoption case, please visit our website and donate!