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The Court of Appeals issued a published decision in Stankevich v Milliron (Docket No. 310710), holding that, after the United States Supreme Court decision in Obergefell v Hodges, ___ US ___; 135 S Ct 2584; 192 L Ed 2d 609 (2015), same-sex couples who are married, in this state or others, may assert the equitable parent doctrine. The equitable parent doctrine allows a spouse who is not a biological parent of his or her spouse’s child but who has raised and formed a bond with the child to be treated as a parent after a divorce when it comes to, for example, visitation rights, if he or she desires to be treated as such and is willing to pay child support.

This holding is particularly important for same-sex couples, such as the one in this case, who enter into agreements or understandings and decide that one spouse will be artificially inseminated and have a child whom both spouses will love and raise together. The couple in Stankevich had married in Canada. Prior to Obergefell, the same-sex spouse who was not the biological parent had no standing to assert parental rights with respect to the couple’s child upon a divorce because same-sex marriages were not recognized in Michigan, and the equitable parent doctrine applies only to married couples. Indeed, this was the Court of Appeals’s holding in Stankevich v Milliron before Obergefell was released. The Michigan Supreme Court reversed and remanded the case for reconsideration by the Court of Appeals after Obergefell, and the Court of Appeals issued its new decision, holding that the equitable parent doctrine does apply to protect the parent-child relationships of same-sex spouses who satisfy its requirements.

Labels: 310710, Court of Appeals, equitable parent doctrine, Obergefell, published opinion, same-sex marriage, Stankevich

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Same-sex marriages and adoptions continue to reach the Michigan appellate courts. A parent in a former same-sex relationship challenged the other parent’s custodial rights by arguing that the probate court who granted the adoption lacked subject matter jurisdiction because it was same-sex adoption. The Court of Appeals disagreed in Usitalo v Landon, per curiam Opinion of the Court of Appeals, approved for publication January 10, 2013 (Docket No. 308240). By holding that the probate court which granted the adoption had subject matter jurisdiction to hear any adoption, the Court of Appeals seemed to purposefully leave open a huge question–is same-sex adoption proper under Michigan law? If the answer is no, then how do adoptive parents from same-sex couples exercise their rights to child support, custody, and parenting time? Does the Child Custody Act and best interests analysis apply? Who is looking out for the children? The concurring opinion by Judge Shapiro raised some very real concerns about the parent's efforts to win a custody battle by challenging the underlying adoption. Recall the case from a few years back, Giancaspro v Congleton, unpublished per curiam Opinion of the Court of Appeals, issued February 19, 2009 (Docket No. 283267). Defendant, a woman that adopted three children with her same-sex partner in Illinois, challenged Plaintiff’s motion for custody, support and parenting time on the grounds that, since the parties were previously in a same-sex relationship and adopted the children together, and Michigan law does not recognize same-sex marriage or same-sex couple adoption, that Plaintiff cannot motion for custody, support and parenting time pursuant to the Child Custody Act as a matter of Michigan public policy. The Court of Appeals ruled that the Child Custody Act does not contemplate the parties’ relationship to each other, but only that they are a natural or adoptive parent of the child. Since both Giancaspro and Congleton were adoptive parents of the children, then the Child Custody Act applied and a best interest analysis would control. Importantly, though, in this case, the parties adopted the children out of state. Again, the Court of Appeals was not forced to consider Michigan Adoption Law. Regardless of whether a Michigan court will recognize the validity same-sex adoption, shouldn’t the paramount question really be – what is in the best interests of the children?

Labels: appeal, best interests of child, child custody act, custody appeal, Michigan, Saginaw County, same-sex adoption, same-sex couple, same-sex marriage, subject matter jurisdiction, validity of adoption

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