Michigan Supreme Court Considers Same-Sex Parenting Case

Landmark Child Custody Case

On Tuesday, the Michigan Supreme Court heard oral arguments on a case involving the parenting rights of a now-split-up same-sex couple. The case pits the biological mother of the child against her former partner; the two were never married and the child was born prior to the recognition of marital equality in 2012.

The parties were in a same-sex relationship back in 2008 when they agreed to conceive a child through in-vitro fertilization. Rachael Haas underwent in-vitro fertilization and gave birth to their child in November 2008. 

In 2020, long after the parties ended their relationship, the other half of the couple, Carrie Pueblo, initiated a custody action in the Kalamazoo family court seeking joint custody of the child.  Biological Mother asserted that her former partner lacked standing to seek custody under the Michigan Child Custody Act because she had neither a biological nor adoptive relationship with the child. 

The Kalamazoo family court granted the Bio-Mother’s motion for summary disposition, concluding that Pueblo lacked standing.  The Court of Appeals affirmed in an unpublished opinion. 

The Michigan Supreme Court heard oral argument earlier this week to address: (1) whether, in light of Obergefell v Hodges, 576 US 644 (2015), the equitable parent doctrine should be extended to provide standing to persons such as Ms. Pueblo who, at the time of the parties’ relationship, was not permitted by Michigan law to legally marry the defendant, and if so, (2) how far should the equitable parent doctrine should be extended in this case.

The Parents’ Legal Arguments on Appeal

In granting certiorari, the Michigan Supreme Court wants to know whether, in light of the United States Supreme Court’s decision in Obergefell v Hodges the equitable parent doctrine should be extended to provide standing to persons such Ms. Pueblo who, at the time of the parties’ relationship, was not permitted by Michigan law to wed her significant other; the biological mother of the child.

Appellant [non-bio-Mom] argued that she has a substantive right to the parties’ minor child. She exchanged vows with Bio Mom; held herself out as the spouse of Bio Mom; made an explicit decision with Bio Mom to conceive a child via IVF; accompanied Bio Mom for prenatal medical appointments; was present for the labor and delivery of the child; maintained a home and familial bond with the child; and was a strong presence and hand in childrearing.

Ms. Pueblo asserted a constitutional right to be legally recognized as the other parent of the child. She relies on the Obergefell decision of the SCOTUS to assert standing to persons in her position who, at the time of the parties’ relationship, was not permitted by Michigan law to legally marry someone of their gender.

Appellant argued that Michigan’s child custody law fails to contemplate the rights of same-sex couples and children reared in such relationships. Michigan’s child custody laws overwhelmingly speak to granting parental rights only to heterosexual couples. Therefore, Michigan’s child custody law violates the fundamental rights of same-sex couples; especially persons in Ms. Pueblo’s position. Accordingly, she argued on appeal to the Michigan High Court that the equitable parent doctrine should be extended to persons in Pueblo’s position who have the standing pursuant to Obergefell.

Appelant answers the second issue by simply suggesting that the High Court adopt the standard implemented in New York:

[W]here a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as coparents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child. Matter of Brooke S.B. 28 N.Y. 3d at 27.

Ms. Pueblo argued that carving out a narrow exception on issues of child custody for pre-Obergefell same-sex couples will create a constitutional quagmire for family and appellate courts. Carving out a broader exception, akin to revisiting all marital dissolution issues, for pre-Obergefell same-sex couples will create a logistical nightmare and, frankly, an impossible situation for the trial courts to handle.

For her part, Bio-Mom argued that the Court should not expand Obergefell's protection of same-sex marriage to confer custodial rights to unmarried couples. Bio-Mom’s asserted that Ms. Pueblo’s theory of an expanded equitable parent doctrine is derived from a contrived and retroactive application of Obergefell.

The equitable parent doctrine holds that a husband who is not the biological father of a child born during the marriage may be considered the natural father of the child where the husband and child mutually acknowledge a relationship as father and child. This doctrice does not extend to the biological father in such a scenario; he is relegated to the status of an "interested third party".

Bio-Mom argued that Obergefell did not grant same-sex couples anything more than the right to have states recognize their marriage and to treat those marriages the same as heterosexuals marriages.  She argued that the case does not justify an extension of the equitable parent doctrine.

Bio-Mom further asserted that a “but for” argument could be made in nearly every area of the law to redress individuals for whom prior iterations of the law did not provide relief - irrespective of whether the law was valid and constitutional and subsequently changed, or where the law was flawed and unconstitutional and successfully challenged.

To revisit all those cases, or many of them, or a select few, will create logistical and constitutional appellate chaos; chaos that an ordered democracy and constitutional legal system cannot invite, nor survive.

Finally, Bio-Mom invited the Michigan legislature to re-examine the basis upon which a third-party, unrelated by marriage, might initiate a custody complaint under the custody act. She did not offer her own parameters.

Here is the video of the attorneys' oral arguments presented to the Michigan Supreme Court:

Lots of Interested Parties

Several groups tracked this litigation and petitioned the Michigan Supreme Court to file amicus briefs. Public interest in this case has been running high due to the high stakes for parents. All of these groups addressed the primary public interest at stake in this case: does a child lose her right to a parent soley because her parents, however related, broke-up?

Here are the groups that filed amicus briefs:

The American Civil Liberties Union of Michigan;

State Bar of Michigan's Family Law Section; and

The American Academy of Matrimonial Lawyers' Michigan Chapter

We Can Help

If you or a family member are facing a custody battle based on your gender or your biological status relative to your child, give us a call to discuss your legal options. Meanwhile, we will continue to monitor this landmark child custody case and will inform our readers of the result.