Same-sex couple.
Domestic partnership declared. Donor insemination contract. Two children born
during the relationship. Domestic partnership terminated. Custody and
parenting-time dispute.
All these statements apply
to Sheardown v Guastella – a case the Michigan
Supreme Court declined to hear in January 2018 (Docket No. 156931) after the Michigan
Court of Appeals, in a 2-1 order, remanded the case for further briefing and analysis
(Docket No. 338089).
Sheardown is intriguing not because Michigan’s highest
court denied the appeal. Rather, it’s interesting because the Court of Appeals
– on its own initiative – ordered the parties to brief, and the trial court to
consider, whether MCL 722.22(i) is constitutional as applied to the facts of
the case, in light of the U.S. Supreme Court’s decision in Obergefell v Hodges,
576 US___ (2015).
Notably, Obergefell was decided after the
plaintiff and the defendant in Sheardown
had ended their domestic partnership. In addition, Obergefell was not offered by either party as an argument on
appeal.
In
fact, Court of Appeals Judge Christopher M. Murray pointed this out in his
dissent to the appellate majority’s order. He criticized the majority’s
decision to invoke an Obergefell analysis
on its own, noting there may have been strategic reasons why the plaintiff did not
raise the issues that the Court of Appeals was now sua sponte requiring the parties to address on remand.
‘Sheardown’
The plaintiff and the defendant
in Sheardown were a same-sex couple.
Although they were never married, they were in a legally recognized domestic
partnership from 2010-2013, at which time the partnership was dissolved.
While they were
together, the plaintiff gave birth to a child in 2010 through a sperm donor. Both
the plaintiff and the defendant signed a donor insemination contract, which stated
the parties’ intent to raise the child together and for the plaintiff to adopt
the child after birth. However, the plaintiff never adopted the child. In 2011,
the defendant gave birth to another child through the same sperm donor. The
children were raised together as siblings.
After the plaintiff and
the defendant ended their relationship, they enjoyed parenting time with each
other’s biological children. However, disagreements and parenting-time disputes
soon arose. In 2016, the plaintiff filed a complaint in the Oakland County
Circuit Court for custody and parenting time with the defendant’s biological child.
Trial Court Ruling &
Reasoning
In the trial court, both
parties moved for summary disposition. Oakland County Circuit Judge Lisa
Langton, after conducting a hearing, granted summary disposition for the
defendant.
First, the judge granted
summary disposition under MCR 2.116(C)(4), lack of subject matter jurisdiction.
She emphasized that, based on established case law, a third party does not have
standing to create a custody dispute “unless the third party is a guardian of
the child or has a substantive right of entitlement to custody of the child” (Ruppel v Lesner, 421 Mich 559 (1984)). In
addition, the Legislature “has not created a substantive
right to custody of a child on the basis of the child’s residence
with someone other than a parent, and this Court is not in a position to do so,”
she said.
Judge Langton also granted summary disposition under
MCR 2.116(C)(5), finding the plaintiff did not have standing. “Because
Plaintiff never adopted Defendant’s child, the law does not consider her a
parent for purposes of the Child Custody Act,” the judge wrote. “Essentially, …
she has no legal rights and interests regarding the minor child in this
case. Thus, the court finds that Plaintiff lacks the legal capacity to sue.”
The judge further
held that summary disposition was appropriate under MCR 2.116(C)(8), failure to
state a claim for relief. “[T]he court’s analysis begins and concludes with two
facts,” she said. “First, … the parties were not in a legally protected
marriage at the time Defendant (or Plaintiff) gave birth to her biological
minor child. It may be true that the city of Ann Arbor granted them legal
recognition, but Plaintiff cites no authority that a city’s recognition
requires full faith and credit acknowledgment by the state. Second, Plaintiff
never adopted Defendant’s minor child. Under these grounds, the court finds
that no factual development could justify recovery under these circumstances.”
In addition, Judge Langton concluded the equitable parenting
doctrine was inapplicable in the case. She noted that the plaintiff claimed the
arguments presented were “shockingly archaic” and “contrary to the fundamental
rights of the LGBT community” under Obergefell.
The judge pointed out, however, that a critical factor of the equitable
parenting doctrine was missing in the case: the child must be born in wedlock.
Citing Lake v Putnam, 316 Mich App 247
(2016), the judge said: “[I]t is, in our view, improper for a court
to impose, several years later, a marriage on a same-sex unmarried couple
simply because one party desires that we do so.”
Court of Appeals Remand
Order
The plaintiff appealed
the trial court’s decision. In her appellate brief, the plaintiff mentioned Obergefell in two instances: 1) to
explain that, prior to Obergefell,
same-sex couples in Michigan could not marry and, therefore, step-parent
adoption was unavailable, and 2) to assert that, prior to Obergefell, many same-sex couples relied on donor insemination
agreements to confer upon an individual the status of legal parent.
Meanwhile, the
defendant argued on appeal that the plaintiff was asking the Court of Appeals to
hold that contracts like donor insemination agreements are legally enforceable
because, before Obergefell, Michigan did not permit same-sex couples to
marry or adopt each other’s children.
The defendant
further maintained the plaintiff waived her claims because she did not explain
why Obergefell applied, or why Obergefell
should be grounds for private and uncontrolled transfers of parental rights to
third parties.
On its own motion,
a 2-1 Court of Appeals remanded Sheardown
“for consideration of whether MCL 722.22(i) is constitutional as applied to the
facts of this case, in light of Obergefell
… We order the parties to file supplemental briefs addressing this question in
the trial court.”
Courts Are Not Advocates
So why did the Court of Appeals majority instruct
the parties to file supplemental briefs in light of Obergefell, when Obergefell
was not the basis for the appellate arguments?
That is precisely the question that Judge Murray
posed in his dissent to the Court of Appeals order.
First, Judge
Murray emphasized that courts are not advocates. “[W]e are not in the business
of raising issues for the parties,” he observed. And when it comes to
constitutional issues, “our Court – and of course the Supreme Court – has
emphasized that constitutional challenges to a statute may not be raised for
the first time on appeal.”
Specifically,
Judge Murray noted the plaintiff in Sheardown
did not challenge the constitutionality of MCL 722.22(i) in her complaint, nor
did she raise the issue in any pleadings before the trial court. Rather, he
said the plaintiff’s argument in the trial court, and on appeal, was that a
signed contract established her rights as a parent. As a result, the trial
court did not decide any constitutional issue, he said.
Judge Murray also explained
the plaintiff’s constitutional argument on appeal was that she had a contract
establishing her as a parent and, thus, her constitutional rights as a parent under
Troxel v Granville, 530 US 57 (2000),
were violated because she was unable to pursue custody or parenting time. “That
is not the challenge to the statute raised by the [Court of Appeals] majority,”
he wrote. “And although plaintiff did cite to Obergefell, it was only for the proposition that when these parties
were in a relationship they were not allowed by state law to be married or to
adopt. True enough, but that does not raise a constitutional challenge to a
state statute on due process or equal protection grounds.”
According to Judge
Murray, there may have been “a very good reason” why the plaintiff did not bring
up the issue that was raised sua sponte
by the Court of Appeals majority. “Setting aside that her counsel could not
identify where this issue was raised, her counsel explicitly disavowed needing Obergefell to be retroactive to succeed,
and likewise seemed to agree with the proposition in Lake v Putnam, … that courts are ill-equipped to re-create what
could have occurred between a couple had they had the opportunity to marry
while they dated. So it could well be that plaintiff chose not to raise this
issue, and hedged her bet that the contract based claim to standing would
prevail.”
But even if that
was indeed the case, the Court of Appeals majority “has not let the parties’
control their own case, and the resulting delay and cost to resolving this
matter will only increase,” Judge Murray concluded. “It is wrong, and I dissent
from the majority’s decision to advocate on plaintiff’s behalf.”
Labels: custody, Domestic partnership, equitable parent doctrine, Lake v Putnam, MCL 722.22, michigan court of appeals, Obergefell v Hodges, parenting time, same sex couple, sperm donor, Troxel v Granville
