Parental Rights for Same-Sex Couples: Obergefell & the “Equitable Parent Doctrine”

The U.S. Supreme Court decision in Obergefell v. Hodges has had a profound impact on LGBT rights in the United States. For the first time, no matter where they live in the country, same-sex couples can be legally married, affording them the same rights and protections as partners in opposite-sex marriages.

While Obergefell established same-sex couples’ fundamental right to marry in the United States and mandated that all states must recognize a legal same-sex marriage no matter where it is performed, the decision did not specifically address issues of family law. Many believe that if they are married, they automatically have custodial rights to any child born of that marriage.  This is not the case currently in Michigan.

The Equitable Parent was first adopted by the Michigan Court of Appeals in Atkinson v Atkinson, a 1987 decision. It recognizes that a parent who is not the biological parent of the child of the marriage may still be considered the child’s parent where: (1) the parent and the child “mutually acknowledge a relationship as [parent] and child, or the mother of the child has cooperated in the development of such a relationship; (2) the parent “desires to have the rights afforded to a parent,” and (3) the parent “is willing to take on the responsibility of paying child support.”

Historically, Michigan courts have only applied the equitable parent doctrine to married couples, leaving same-sex couples without recourse. The expansion of the doctrine to married same-sex couples came in Stankevich v. Milliron, a 2015 decision from the Michigan Court of Appeals. In that case, two Michigan women married in Canada in 2007, and later one of the women gave birth to a child that had been conceived through artificial insemination, and both women were parents to the child. The couple divorced and their informal custody arrangement broke down, leaving the non-biological parent without access to the child. She filed a suit and, after Obergefell, the Michigan Court of Appeals held that the Equitable Parent Doctrine may apply in such circumstances.

Although this provides a legal avenue for relief for married same-sex couples, hundreds of Michigan families remain in legal limbo because currently, the Equitable Parent Doctrine applies only to those in a legal marriage. Although the Michigan Court of Appeals recently held in Lake v. Putnam that it would not extend the Equitable Parent Doctrine to non-married same-sex couples, it did leave the possibility open for those who can prove that they would have been married at the time the child was born but for the unconstitutional ban on same-sex marriages. 

No couple – straight or gay – enters into a committed relationship intending for it to end, or for the family they create to be torn apart. The landmark decision in Obergefell, and its subsequent extension and application in Stankevich and other cases, provide some peace of mind for married same-sex parents. Under the current state of the law, however, the only way a non-biological parent in a same-sex couple can guarantee legal access to their children is through a second-parent adoption.

Posted in Family Law, LGBT Law.