Michigan Appellate Courts Affirm Marital Equality in Custody Rulings

In the wake of the Obergefell and DeBoer cases decided last June by the SCOTUS, our appellate courts here in Michigan have issued recent rulings in a case involving a same-sex couple’s custody battle. The case is Stankevich v Milliron and comes to us from Dickenson County Family Court in the Upper Peninsula, along the southern shores of Lake Michigan.

In 2007, Jennifer Stankevich married Leanne Milliron in Canada, taking her name and moving as a married couple to Michigan’s UP. Sadly, however, things moved very fast from there, and the couple, along with their young child, have been overtaken with the pace of events occurring in appellate courts across the state and the country.

Leanne was artificially inseminated and gave birth to a child shortly following the Canadian nuptials. Although not a biological parent, Jennifer was an active parent in the child’s life.

By early 2009, the couple had separated and practiced an agreed parenting schedule of their then-toddler. Unfortunately, this parenting agreement broke-down, sending the couple to family court to resolve their dispute.

Jennifer filed a law suit seeking dissolution of her same-sex marriage to Milliron, along with a custody determination and a court-ordered parenting schedule; the usual relief sought in the family courts. Leanne had, in the meantime, cut-off her wife from all parenting time.

Sadly, the case has traveled up and down the appellate courts ever since. First, Leanne moved the family court for summary disposition on the basis that Jennifer had no standing as the non-biological “parent” of the child; her motion was granted by the family court judge in early-2012.

When the case made its first trip to the Court of Appeals, the October 2013 unpublished decision affirmed the trial court ruling, and Jennifer was out of luck, and out of her child’s life. The Michigan Supreme Court, however, took a look at the case while Obergefell and DeBoer were percolating toward the SCOTUS and held the application in abeyance until those cases were decided.

In September, the Michigan Supreme Court vacated the prior ruling of the Court of Appeals, directing that Court to reconsider the Stankevich custody issues in light of the SCOTUS marital equality decisions. The result of that exercise in reconsideration is the soon-to-be-published decision in Stankevich; a significant family law decision from our intermediate appellate court.

Relying on the “equitable parent doctrine”, the Court of Appeals held that Jennifer did have standing under the Child Custody Act to bring her suit. The equitable parent doctrine, until now solely applied to Husbands/Fathers, states:

(1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.

The first time through, the Court of Appeals relied on one of its pre-marital equality decisions in declining to extend the equitable parent doctrine to same-sex couples. This time, however, in light of last summer’s SCOTUS rulings on marital equality, Michigan is now required to recognize the same-sex marriage of litigants.

The Court of Appeals has sent the case back to the Dickinson Family Court for an evidentiary hearing on the validity of the couple’s same-sex Canadian marriage, and assuming a valid marriage, for custody and parenting determinations under the equitable parent doctrine.

How sad for this child and the parents. When a biological parent cuts-off all contact between a child and the “other” parent, it can only be described as cruel and mean-spirited.

What the case tells us here at our law firm is that, regardless of same-sex or heterosexual marital unions, people can be vicious and mean when it comes to their children; we recognize it in many of our cases.

If you or a family member have a tough custody or parenting dispute, contact our law firm to schedule a free consultation to review your family court options.