Relationships start and end every day. That’s true no matter what your gender or sexual orientation. But until 2015, legal marriage – and by extension divorce – was not an option for same-sex couples. Now two Michigan Court of Appeals judges have cut off an intended parent’s access to same-sex custody rights based on a label not available to her before her relationship ended. They said, essentially, that unless you are legally married, you aren’t a parent.
Same-Sex Relationship Couldn’t Wait for Michigan Marriage Equality
Anita Sheardown and Janine Guastella were in a committed relationship for years, including a contract-based domestic partnership from 2010 to 2013. In 2010, Ms. Guastella had a child by artificial insemination in 2010. Both parties signed a donor insemination contract that said they intended to raise the child together and that Ms. Sheardown would adopt the child after it was born. In 2011, Ms. Sheardown used the same process to have a second child. The two children were raised as siblings.
Michigan law at the time went beyond denying same-sex couples marriage certificates. Even if Sheardown and Guastella had been married in Canada or California, where it was legal, their marriage would not have been recognized in Michigan. Sheardown would not be legally able to adopt MEG or seek custody at the time the relationship broke down.
But the couple’s relationship couldn’t wait for marriage equality. In 2013 or early 2014, the relationship fell apart. Because the Michigan constitution prohibited same-sex marriage and the Michigan Adoption Code had been interpreted to prevent two unmarried adults from adopting the same child, Sheardown had never been determined a legal parent of their first child, identified by his initials as MEG.
One year later, in June 2015, the Obergefell decision by the U.S. Supreme Court made marriage equality the law of the land and specifically overruled the Michigan constitutional amendment prohibiting same-sex marriage. The opinion also said that states must recognize legal same-sex marriages performed in other states.
Same-Sex Custody and the Definition of Parent
When the dust settled, in 2016, Sheardown went to the Oakland County Circuit Court and asked that the judge honor her role as a parent in MEG’s life. Guastella objected, saying that Sheardown wasn’t a legal parent of the child, and so didn’t have the authority – standing – to raise the issue before the court. The judge dismissed the case, agreeing with Guastella that Sheardown was not a parent according to the Michigan Child Custody Act.
“‘Parent’ means the natural or adoptive parent of a child.”
The Court of Appeals considered specifically whether this definition was illegal given Obergefell. In that opinion, the U.S. Supreme Court specifically said that same-sex couple should not be denied the right to marry, or any of the resulting benefits – like adoption, custody and parenting rights.
Sheardown and Guastella were in a committed relationship. They signed contracts that they intended to both be the legal parents of the children conceived during their relationship. While they did not travel to marry, they did everything Michigan law would allow at the time to cement their relationship, specifically including parental rights.
But none of that mattered to the pair of judges that made up the majority of the panel. Instead, they hung their decision on a legal distinction not available to the couple at the time. They said the Child Custody Act’s definition of parent was constitutional because it hung on marital status, and not the gender of the person’s spouse. The judges explicitly refused to consider whether the parties would have married had they been able to.
Ignoring Historic Realities Is Becoming a Pattern for the Court
This isn’t the first time the Michigan courts have cared more about marital status than marriage equality. In July 2016, in Lake v Putnam, three different Court of Appeals judges said a non-biological partner’s parenting rights depended on whether the couple had ever been married. Applying the state’s “Equitable Parent Doctrine”, the court said it could not give same-sex couples more flexibility than their opposite-sex counterparts. Since the Equitable Parent Doctrine is only available to married would-be fathers, the court said it could only be applied to married same-sex parents. As with Sheardown, the court identified the non-biological parent as a “third party” – a legal stranger to the child. The court there said:
“Again, had she been married to the child’s biological parent, regardless of whether the biological parent was male or female, the outcome of this appeal would have been different. … But she was not. In fact, plaintiff has not presented any evidence to support a conclusion that she and defendant would have been married but for Michigan … law.“
The Lake judges, it seems, would have been willing to consider facts like those provided in Sheardown that the family had taken what legal steps were available to secure the non-biological parent’s same-sex custody rights.
By refusing to consider that evidence here, the Sheardown court has made it clear that the checkbox of marriage is more important than the best interests of the children or the parties’ fundamental rights to parent their children. The court asks the impossible of parents like Sheardown whose relationships could not wait for marriage equality: to turn back time and be married before that marriage would be legally recognized in the state.
The Michigan Supreme Court denied a request for review in Lake. If they once again pass over the opportunity to review Sheardown, the parents whose relationships ended before Obergefell may be left without a path to legal custody of their intended children.
Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She focuses on representing same-sex couples with family planning, adoption, and custody issues. If you need help protecting your same-sex custody rights to your children, contact Schmidt & Long to schedule a consultation.