Wood & Associates PLLC is sharing some of the research on specific cases relating to same sex relations when child custody and parenting time is questioned. Our goal is to help inform our clients and provide them research regarding matters that might hit home.
On June 25, 2015, the Supreme Court of the United States decided the case of Obergefell v. Hodges. This decision was 4 separate state cases combined to answer two questions.
First: Are State laws limiting marriage to that between 1 man and 1 woman a violation of the Constituion of the United States? Answer: Yes.
Second: Are States permitted to ignore the valid same sex marriage when the marriage occurred in a State or Country where same sex marriages are valid? Answer: NO, all states must recognized valid marriages from other states.
After June 2015, it was then determined that Michigan and all states, must be recognized as valid for same sex marriage from another state or country. It was also determined that same sex couples married in Michigan were validly married. All marriages must be treated equally.
Same sex marriages are now considered valid anyway they occur in the United States. However, there was one major concern that was not resolved by the Obergefell v. Hodges decision. Particularly, same sex divorce.
Same Sex couples are in an unstable situation, unless an adoption has occurred. The result? Only the biological parent of the child is permitted to seek an order of custody and parenting time. The issue for non-biological parents in a same sex couples, can be corrected using the Equitable Parenting Time Doctrine. HOWEVER, the Equitable Parenting Doctrine only applies to a portion of non-biological parents in this situation. The doctrine requires that BOTH parents were married when the child was born and that the child was born after the parties were married. If the child was born prior to the marriage, and presumably, after the separation of the parties, then the non biological parent could not rely on the Equitable Parenting Doctrine to establish custody and parenting time.
The Court of Appeals of Michigan decided both of these issues:
In the case of Stankevich v. Milliron, Michigan decided that the Equitable Parenting Doctrine would allow the non-biological partner in a same sex marriage - whether valid in Michigan or valid in another State or Country – to seek an award of Custody and Parenting Time, permitted they assumed responsibility to pay child support as well, if ordered.
In the Case of Lake v. Putnam, the Michigan Court of Appeals held that the Equitable Parenting Doctrine can only apply to children that were born during the marriage. (Being born during the marriage is a requirement of the Equitable Parenting Doctrine.) A non-biological parent from a Same sex couple, who had a caring, loving relationship for 14 years, during which a child was born, COULD NOT use the Equitable Parenting Time Doctrine to seek Custody and Parenting Time. There is no constitutional violation as the rule applies equally to same sex couples and heterosexual couples – i.e. a requirement that the parties be married prior to the birth of the child.
A question that has not been fully resolved is: what about custody and parenting for a non-biological same sex parent if the parties get married after the child is born? The presumption is that the Equitable Parenting Doctrine would not apply in such a situation.
These are difficult times for parents involved in same sex couples whether married or not and are finding themselves in a difficult situation involving children that they have loved and cared for dearly.
Summary of Michigan Laws of Same Sex Relationships where children are born: