LGBTQ+ couples barred from marriage retain parental rights, Michigan Supreme Court rules ⋆

The Michigan Supreme Court on Monday ruled that unmarried people in same-sex relationships can seek custody and parenting time of their children following a breakup. 

In a 5-2 decision, the court held that former members of a same-sex couple can seek custody of a child whom they share no genetic connection to if the couple had been prevented from marrying by Michigan’s ban on same-sex marriage, which was deemed unconstitutional when the United States Supreme Court legalized same-sex marriage in 2015. 

The case began after Carrie Pueblo brought action against her former partner Rachel Haas for joint custody and parenting time for their child, who was conceived through in vitro fertilization and born in 2008, according to the case’s syllabus

The case was initially dismissed after Haas asserted Pueblo lacked standing to sue, as the two had never married, Pueblo lacked a biological or adoptive relationship with their child, and that Pueblo never provided a claim which could be granted relief. After multiple motions for reconsideration were denied, Pueblo appealed the lower court’s decision, which was upheld by the Court of Appeals. The Michigan Supreme Court reversed this decision and remanded the case to trial court for further proceedings. 

As part of its decision, the Michigan Supreme Court overruled a prior holding that declined to apply the equitable-parent doctrine to same-sex couples who were unable to marry. 

The doctrine allows non-biological parents to petition for custody of a child born or conceived during their marriage provided they have a parental relationship with the child, wish to have the rights afforded to a parent and are willing to pay child support. Under the court’s ruling, former members of same-sex couples can seek custody if they demonstrate that the parties would have married before the child’s conception or birth, but were prevented by the state’s unconstitutional ban on same-sex marriage. 

State Rep. Kyra Harris Bolden (D-Southfield), who will become the first Black woman to serve on the Michigan Supreme Court in January, poses for a portrait in the old Supreme Court chamber in the Michigan Capitol on Dec. 7, 2022. (Andrew Roth/)

Justice Kyra Harris Bolden, who was appointed by Democratic Gov. Gretchen Whitmer, wrote a concurring opinion in support of the court’s ruling encouraging the state Legislature to resolve lingering issues in how existing laws relating to marriage, out-of-wedlock parenting and reproductive technology fit with the realities of same-sex parenting. 

Bolden, a former House member, also said the Legislature should clarify ambiguities in the state’s Child Custody Act, which does not mention biology or marriage, but does contain an unclear definition of “natural parent.” Bolden encouraged the Legislature to consider adopting a formal procedure to address custody situations like Pueblo’s. 

“This case raises important questions. The Legislature should answer them.” Bolden said in her concurring opinion. 

Justices Brian Zahra and David Viviano, who were both nominated by Republicans, dissented. Zahra questioned the validity of the equitable parent doctrine, and argued that an extension of the doctrine would have “far-reaching ramifications” outside the child custody context. He also argued this extension was not an appropriate tool to provide relief in Pueblo’s case, emphasizing the solution lay with the Legislature rather than the judiciary. 

The court’s decision was cheered by the American Civil Liberties Union, who submitted a friend of the court brief alongside Lambda Legal Defense and Educational Fund, Inc., the LGBTQA Law Section of the State Bar of Michigan, Affirmations LGBTQ+ Community Center, GLBTQ Legal Advocates and Defenders, the National Center for Lesbian Rights, Equality Michigan, the Out Center of Southwest Michigan and Stand With Trans.

“Until now, when children were born into families headed by unmarried same-sex couples, a child-parent bond could be severed forever because the non-genetic parent was considered a ‘legal stranger’ to the child. That included people like Carrie Pueblo, who was unconstitutionally barred from marrying her partner. Children, denied access to the love and financial support of one of their parents, suffered terrible harm,” said Jay Kaplan, staff attorney at the ACLU of Michigan Nancy Katz & Margo Dichtelmiller LGBTQ+ Rights Project.

“Thankfully, because of today’s ruling, that will no longer happen. It is an important step forward in the ongoing effort by the ACLU and its allies to obtain equal rights for every LGBTQ+ person in Michigan,” Kaplan said. 

authored by Kyle Davidson
First published at

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