A new kind of custody battle.
Battles involving child custody are often hotly contested between the parties. These can also become very complicated, when the couples used donor genetic material (eggs or sperm) to conceive their child. Now, thanks to the ruling in Obergefell (the Supreme Court’s same-sex marriage ruling), a new wrinkle has been added to these cases.
A same sex couple in southeast Michigan finds themselves at the center of a new, and potentially ground breaking, area of law. The parties are a lesbian couple who entered into a domestic partnership in New York and a civil union in Vermont. They did these things before same-sex marriage became legal. They then used a donor egg and sperm to have their children. The parties have been co-parenting the children since birth. Now the couple is splitting up and the birth mother is trying to deny our client parenting time with the children.
There are two things particularly interesting about this case. First, according to the Michigan Custody Act, the birth mother is not technically a parent. This is so because she is not genetically related to the children, nor is she an adoptive parent. Second, our client is the legal guardian of the children, meaning she may in fact have more legal rights to the children than the birth mother.
The central issue is whether or not the court will recognize that because these women did all they could to be a family and co-parent each should be entitled to parenting time as though they had been married.
Here is a link to a story done by Local 4.
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.
In yet another victory, this time without the help of the courts, LGBT rights attorney Dana Nessel has helped a same-sex couple gain equal access to benefits previously denied. Our clients, Elizabeth Gardiner and Stephanie Citron, were one of the couples able to marry in Michigan after the decision in the Deboer-Rowse case. Unfortunately, though the marriage was legal, Ms. Citron’s employer, Kroger, used an insurance company that refused to extend marital insurance benefits to Ms. Citron’s wife, Elizabeth.
Even when presented with all the applicable information, the insurance company refused to recognize Ms. Citron’s right to have her wife receive benefits. Enter Dana Nessel, whose determination and success on these issues is now known world-wide. After Ms. Nessel made clear that this type of blatant and illegal discrimination against a same-sex couple would not stand, with the threat of lending legal action, the health insurance company decided to reword their insurance p0licy. As of today, Ms. Citron and her wife, Elizabeth, are not fully covered as a marital couple.
Here is a link to the story done by Channel 7.
Recently, members of the Michigan Legislature decided – in their infinite wisdom – that the Elliot Larson Act (Michigan’s Civil Rights Act) would not be amended to protects against discrimination based upon sexual orientation or gender identity.
Krista and Jami Contreras, a couple from southeast Michigan, adopted their daughter in October 2014. Naturally, they sought out a pediatrician for their infant daughter. Dr. Vesna Roi came highly recommended to them by the midwife who assisted on the birth of their daughter. The couple met with Dr. Roi, who appeared to look forward to treating their newly born daughter. However, when Krista and Jami arrived for their daughter’s first wellness appointment they were told by one of Dr. Roi’s colleagues that she (Dr. Roi) would not be treating their daughter because of the couples’ sexual orientation. Yes, that’s right, a doctor refused to treat a patient because of the parents’ sexual orientation. Here is a link to a story by Fox 2’s Amy Lange, where Krista, Jami, and civil rights attorney Dana Nessel speak about the situation.
Unfortunately, law makers in Michigan seem intent on allowing for state sanctioned, protected discrimination against members of the LGBT community. The current state of the Michigan law allows for workplace discrimination based on sexual orientation, refusal of basic medical services because of a patient’s sexuality, housing discrimination, educational discrimination, refusal to allow for second parent adoptions in the cases of same-sex couples, and of course, the denial of the right to marry. Now, as we can see, Michigan’s laws even allow for the refusal of medical services because of a family member’s sexual orientation. The fact that there are ZERO protections for members of the LGBT community is something that the Michigan Legislature is clearly very proud of.
At Nessel and Kessel Law, we are proud to stand up for the rights of members of the LGBT community. Nessel and Kessel Law has spearheaded Michigan’s ban on same-sex marriage, and are headed to the United States Supreme Court in April, to fight for this basic human right. If you or a loved one has been discriminated against because of sexual orientation or your status as a member of the LGBT community, contact the attorneys at Nessel and Kessel Law today.
In November of 2014, Nessel and Kessel Law began our representation of a local college student who felt he was being targeted because of his homosexuality. Briefly, the facts of the case are as follows; the week before the incident in question Mr. McMurray had been assaulted by a number of other students. After the assault, Mr. McMurray called the police and made a report. Several days after making the report Mr. McMurray was confronted by the complaining witness in this case. The complainant showed up, unannounced, at Mr. McMurray’s dorm room and an altercation ensued. Here is a link to the previous blog post on the case.
Our client was charged with Assault by Strangulation, a felony charge with a maximum punishment of up to 10 years in prison. For any of us, especially a young man, just starting college with a spotless record, this charge would cause an incredible amount of nervousness and anxiety. After being charged, our client was suspended from school, expelled from school, faced harassment (both in person and in social media), all while being terrified of being sentenced to prison.
Thankfully, after months of negotiations, we at Nessel and Kessel Law are happy to report that this case has come to a conclusion. The felony charge was dismissed, in exchanged for a plea to a very low-level misdemeanor. But more importantly, the client will have the conviction suppressed his record completely clean after completing a brief term of probation. It is important to note that this resolution could not have been reached without the cooperation and assistance of the very hard working and fair minded prosecutor who was handling the case. Equally important is the idea that the Wayne County Prosecutor’s Office is open to the understanding of the plight of members of the LGBT community.
At Nessel and Kessel Law, we are intensely committed to the protection of the rights of members of the LGBT community. Will have never, nor will we ever, shy away from a fight involving the defense of those who are being discriminated against because of their sexual orientation or gender identity. Currently we are in the middle of a fight over the constitutionality of Michigan’s ban on same-sex marriage. But denial of the right to marry is not the only way in which LGBT rights are being denied and is not the only way in which member of that community are being discriminated against. Thankfully, we at Nessel and Kessel Law are committed to fight for the rights of all members of the LGBT community.