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.
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.
Though the constitutional challenge to the same-sex marriage bans in our nation’s Sixth Circuit only began making the news last year, for April DeBoer and Jayne Rowse the fight began in 2011. The night was dark, and snowy. The road was rural. DeBoer, Rowse, and their three young children found themselves staring at oncoming headlights… in their lane. All five of their lives could have been turned upside down in an instant.
“At the last second, he swerved off the road and veered into a field,” DeBoer recalled. “I don’t think Jayne and I would have survived the impact. It was that moment, that realization, that we needed to get things in order.”
The next day, the task seemed simple enough: They would have wills drawn up, and assign custody of their children. But, as the women soon learned, the task would be anything but simple. As a lesbian couple living in the state of Michigan, DeBoer and Rowse could be granted no legal claim over the other’s adopted child[ren]. (Michigan law prohibits unmarried couples from adopting jointly, and a single parent adopted so each of DeBoer and Rowse’s children.)
“It was scary,” DeBoer said. “All along we thought we could protect our children, and we couldn’t.”
DeBoer and Rowse, who met through mutual friends in 1999, now have four children: Six-year-old Nolan and five-year-old Jacob legally belong only to Rowse, while four-year-old Ryanne and two-year-old Rylee are, in the eyes of the law, only DeBoer’s. But ask any member of this family, and they’ll tell you together, they belong to, and with every one. None could imagine differently.
On that night in 2011, and in the days that followed, DeBoer and Rowse came to know that their lives could be turned upside down in an instant. Their family could be torn apart, and there was nothing that could be done about it: Unless.
Unless they filed a federal lawsuit to challenge the adoption laws in the state of Michigan, which they did at Nessel & Kessel attorney Dana Nessel’s urging. But a year later, in United States District Court Judge Bernard A. Friedman’s courtroom, the whole scope of their endeavor shifted.
“We felt the judge’s implication was clear — either amend the proceedings to challenge the marriage ban, or the entire case could be dismissed,” Nessel said. “April and Jayne, as much as they wanted to get married and adopt their kids, never set out to challenge the marriage ban.”
The trial last two weeks, and Judge Friedman ruled in their favor, but DeBoer and Rowse’s story doesn’t end there. It’s only just begun. Though 300 couples were married during the time between Friedman’s ruling, and when the Sixth Circuit Court of Appeals overturned his ruling in November, our clients were not among them. They made the tough decision to wait, to wait until the law was clear, to wait until every couple in Michigan had the right to marry.
But now it seems they won’t have to wait long.
“I think that’s just going to be overwhelming, seeing the justices,” Rowse said. “We’re optimistic and hopeful that they’re going to be on the right side of history.”
As the Mark Slackmeyer character once quipped in the Doonesbury comic strip, the reason we need gay marriage is so we can have gay divorce. The unfortunate fact is that some same-sex relationships, even of long duration, do not last. So until recently, without the right to marry, the rights and protections of divorce did not extend to same-sex couples.
While many states have now legalized same-sex marriage and some others now recognize marriages performed in other states and countries, questions are naturally starting to emerge about how this changing patchwork of laws applies to Michigan couples. For instance, if a lesbian couple residing in Michigan wishes to end their marriage, they must go to a jurisdiction that recognizes their marriage in the first place. That still leaves Michigan out, making the process potentially far more difficult and expensive, even when the couple has agreed to all terms.
Making matters more complicated, some states that may be willing to grant a divorce to same-sex couples require the couple to first establish residency there, effectively barring most couples from taking advantage of the law. On top of that, the laws change state by state on seemingly a weekly basis, and the courts are facing a wave of new cases in the near future. A lot remains to be settled.
Nessel and Kessel Law successfully argued the DeBoer v Snyder case before the Michigan Supreme Court, cementing their role as the leader in LGBT rights cases. While the federal and state courts sort out the implications of this landmark case, Nessel and Kessel Law has been exploring options for Michigan residents who wish to end their same-sex marriages performed in other states or countries, without having to travel there or establish residency. If either you or your spouse lives in Michigan and wish to dissolve your marriage, rely on the leadership and experience of Nessel and Kessel Law for guidance in these turbulent times. For the best legal advice and representation, committed to protecting the rights of LGBT couples, contact our law firm today at 313-556-2300.
It goes without saying that parenting is a really tough job, regardless of whether one is handling it solo, in a heterosexual relationship, or part of a same sex couple. Not only is the care and protection of children a big enough task, there are plenty of financial questions that come into play as well. This is especially true for parents exploring adoption.
Some Americans are aware that the maximum tax credit for adoptions was raised to $13,190 in 2014, but most aren’t clear on the guidelines that come along with it. In order to qualify for the adoption tax credit, one must have adopted a child and paid the total costs of the adoption. These tax credits vary on an individual basis and are based upon the amount of money one spends on the adoption process. Unfortunately, the adoption tax credit is not available for stepparent adoptions or adult adoptions. On the other hand, those who adopt special needs children are typically eligible to receive the full tax credit.
One’s annual income also plays a role in determining the tax credits available for adoption. If one’s adjusted gross income is equal or less than $197,880, they are eligible for the full tax credit. Those who make more than that amount annually can receive a reduced adoption credit, maxing out at incomes of $237,880. Therefore, those who earn over that amount each year are not eligible for the adoption tax credit.
If you are unsure of whether your family is eligible to receive the tax credit for adoption in Michigan, it is important to explore all of your legal rights. Contacting the experienced and knowledgeable Detroit adoption attorneys at Nessel and Kessel Law will not only give a confusing situation clarity, it will also ensure that all of a client’s rights are protected in front of the law. Don’t wait to explore all of our options, contact our skilled legal team at 313-556-2300 today!
The last year has brought great changes to marriage law both in Michigan and across the United States. As the LGBT community inches closer to equal marriage rights, plenty of related questions are also raised; what do same-sex couples do when it comes to adopting children? Can both persons in a homosexual relationship adopt children so that they are both listed as parents? Not yet in the Great Lakes State, but changes could be coming according to the leading Detroit adoption attorneys at Nessel and Kessel Law.
Although Michigan’s Adoption Code does not currently allow same-sex couples to jointly adopt, this law could soon become a thing of the past. Judge Bernard Friedman is set to hear arguments on the future of second-parent adoptions in Michigan, as well as same-sex marriage in federal court later this month in Detroit. The legal team representing the highly publicized DeBoer-Rowse family, Nessel and Kessel Law, have assembled a nationally recognized team of expert witnesses who will testify about issues related to same-sex marriage and LGBT parenting. Should the attorneys prove successful, Judge Friedman could strike down Michigan’s ban on same-sex parent adoptions for homosexual couples. If the ruling is not stayed, these couples could begin adopting children very shortly afterward.
As experienced Michigan adoption lawyers, Nessel and Kessel knows first-hand that same-sex parents thrive in these households to the same extent they would if in a home headed by married heterosexual partners. The only differences exist thank to Michigan’s Adoption Code and their ban on second-parent adoption. Our legal team looks forward to receiving the rulings in the DeBoer v. Snyder case and to living in a state where every child has the same protections afforded to families with heterosexual couples.
If you or a loved one has been considering second-parent adoption in Michigan, it is essential to be well-informed of all your rights and protections. Contacting an experienced and knowledgeable Detroit adoption lawyer will help clarify the legal process and ensure that every one of the client’s rights are protected. Reach out to the Nessel and Kessel law offices for more information on how we can help you by phoning us at 313-556-2300 today!
Earlier this week, Nessel and Kessel Law’s very own Dana Nessel was featured on a 30-minute segment for WXYZ Detroit where she discussed the recent landmark Supreme Court decision which deemed DOMA unconstitutional. A nationally recognized attorney and legal expert, Nessel is highly sought after for her insight on the ever-changing political and social landscape surrounding gay marriage and adoption.
Since opening its doors in 2010, Nessel and Kessel Law has been dedicated to fighting for the rights of all people, regardless of their race, religion, or sexual orientation. Currently, the legal team has a case in the Federal Court that challenges Michigan’s ban on same-sex marriage and second parent adoption. (Click here to get more information on the DeBoer Rowse case). Both Dana Nessel and Chris Kessel are particularly pleased with the Supreme Court’s recent ruling as it will assist in furthering the fight for gay marriage and second parent adoption in Michigan.