New York Awards “Tri-Custody” When Polyamorous Relationship Dissolves

What does it mean to be a parent? Courts, scientists, and even charitable organizations have been struggling to define the term for decades. Now a New York judge has taken up the question of whether a child can have 3 parents, awarding “tri-custody” to a non-biological mother in a polyamorous relationship.

What Is Polyamory?

Polyamorous relationships tend not to be as visible as other non-traditional family situations. So you may not understand what it is, or how it would work. NPR recently explained:

“The word polyamory, according to this FAQ page maintained by writer and sex educator Franklin Veaux, ‘is based on the Greek and Latin for ‘many loves’ (literally, poly many + amor love). A polyamorous person is someone who has or is open to having more than one romantic relationship at a time, with the knowledge and consent of all their partners.’

(Polyamory, then, isn’t to be confused with polygyny, when one man has several wives, or polyandry, when one woman has several husbands.)”

The relationships of polyamorous people are often referred to as polygamy, which is “the practice or condition of having more than one spouse, especially wife, at one time.”

Practically speaking, though, because of the laws around marriage, members of many polygamous relationships do not have the legal status of husband or wife. For example, where three partners are involved (which is often impolitely referred to as a threesome), two partners may be legally married to one another, but the third remains a legal stranger. This legal limit on the numbers of partners in a marriage can pose challenges similar to the ones lesbian and gay couples recently fought to overcome in United States v Windsor and Obergefell v Hodges, including the right to be legally identified as a parent of one’s child.

New York Court Takes On Polyamorous Custody

In what may be the first of its kind, a recent New York trial court order awarded “tri-custody” to the three parents of a minor child after their polyamorous relationship dissolved. In Dawn M. v Michael M., the New York Supreme Court for Suffolk County determined that the child’s best interests would be best served by allowing him to retain a relationship with all three parents.

Michael M. and Dawn M. were married in 1994. They tried repeatedly to have children, including using artificial insemination, but Dawn was unable to carry the child to term. In 2001, the couple met Audria G., and developed an increasingly close relationship with her. When Audria’s boyfriend moved out, she began living with Michael and Dawn. Eventually, the relationship became intimate.

The partners then decided to have a child together. They agreed, before the child was conceived that they would all raise the child together as parents. Michael and Audria conceived a boy, J.M., who was born in 2007. Dawn’s medical insurance covered the costs of the pregnancy and she attended most of the pre-natal doctors appointments. For 18 months after JM was born, the three parents lived together and co-parented their child.

Then in 2008, Audria and Dawn moved out. Dawn and Michael were divorced in 2011, and a custody case between Michael and Audria awarded the biological parents joint legal custody. Residential custody (called physical custody in Michigan) was awarded to Audria, and by extension, to Dawn.

However, Dawn then filed a complaint with the New York Court asking to be awarded custody explicitly. While she continued to live with Audria and J.M., she was concerned that her visitation rights depended on the good will of his biological parents.

New York Law and De Facto Parenting

The Honorable H. Patrick Leis, III, for New York, granted her request. In deciding to award “tri-custody”, the judge relied on a New York Court of Appeals (the highest court in the state) case, Brooke S.B. v Elizabeth C.C., from 2016. That case applied the reasoning of Obergefell and changes in state law in light of marriage equality to a non-biological mother’s request for custody against her former lesbian partner. The court overturned existing law, and said:

“[W]here a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise it together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law §70.”

Turning back to the polyamorous situation in Dawn M. v Michael M., the judge said:

“Indeed, tri-custody is the logical evolution of the Court of Appeals’ decision in Brooke S.B., and the passage of the Marriage Equality Act and DRL §10-a which permits same-sex couples to marry in New York. . . .

In sum, plaintiff, defendant and Audria created this unconventional family dynamic by agreeing to have a child together and by raising J.M. with two mothers. . . . No one told these three people to create this unique relationship. Nor did anyone tell defendant to conceive a child with his wife’s best friend or to raise that child knowing two women as his mother. Defendant’s assertion that plaintiff should not have legal visitation with J.M. is unconscionable given J.M.’s bond with plaintiff and defendant’s role in creating this bond. A person simply is responsible for the natural and foreseeable consequences of his or her actions especially when the best interest of a child is involved. . . . As a result of the choices made by all three parents, this ten-year-old child to this day considers both plaintiff and Audria his mothers. To order anything other than joint custody could potentially facilitate plaintiff’s removal from J.M.’s life and that would have a devastating consequence to this child.”

The court therefore found that it was in J.M.’s best interest to award shared legal tri-custody and visitation to each of his three parents.

Michigan Parents and the Equitable Parent Doctrine

Michigan, like New York, emphasizes the “best interests of the child” in determining custody and parenting time. However, the state has a more narrow definition of a “parent”. While the New York Domestic Act 70 allowed any “parent” to seek custody, Michigan law gives standing to a “natural or adoptive parent.” The exception to this rule is the Michigan “Equitable Parent Doctrine.” Established in Atkinson v Atkinson in 1987 (between a heterosexual couple), the rule says:

[A] husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (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.”

Since Obergefell, Michigan has considered two cases applying the Equitable Parent Doctrine to same sex couples in Michigan. In Stankevich v Milliron, the Michigan Court of Appeals said that because the child’s two parents had been legally married, and Stankevich met the requirements of the Equitable Parent Doctrine, she had the authority to request custody, parenting time, and child support for the child born during her marriage to Milliron.

But in Michigan, de facto parenting only applies within the context of marriage. On July 5, 2016, in Lake v Putnam, the court refused to apply the Equitable Parent Doctrine to a same-sex couple who were romantically involved, but never married. The court said “for the equitable-parent doctrine to apply—the child must be born in wedlock.

Could Tri-Custody Come to Michigan?

The Lake decision spells trouble for poly individuals hoping to bring New York’s reasoning home to Michigan. By law, a marriage can only exist between two people (regardless of gender). Where there are additional romantic partners in a relationship, those individuals do not have the same legal rights as a spouse. With Lake as its guide, a Michigan court would likely find that if a person is not a husband (or wife) to the “natural or adoptive parent” of a child, that person will not fit within the narrow definition of a parent for the state’s Equitable Parent Doctrine.

The definition of a parent, and a family, continue to change over time. Social scientists have made clear that the bond a child has with a psychological parent – whether legally related or not – should be protected. But Michigan domestic law moves slowly, sometimes exceedingly so. Without significant changes to the statutes governing paternity, custody, and parenting time, it seems unlikely that polyamorous parents will see their relationships protected any time soon.

Lisa J. Schmidt is a family lawyer at Schmidt & Long, PLLC, in Ferndale, Michigan. She focuses on non-traditional and LGBT family issues. If you have an unusual custody concern, contact Schmidt & Long today to schedule a free consultation.