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.
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.