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Same-sex marriage and the equitable parent doctrine

March 18, 2016
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Suppose two women are married in Canada and have a child by artificial insemination. The couple raise the child as co-parents for a few years, but eventually divorce. Initially, they agree to a parenting time schedule, but the agreement falls apart and the biological parent won't allow her ex-spouse to see the child.

Does the non-biological "parent" have "parental" rights?

For years, the answer in Michigan has been "No." Only married couples could have equitable parental rights and — because Michigan's constitution previously forbade the recognition of anything other than heterosexual marriage — what is known as the "equitable parent doctrine" did not apply to same-sex marriages performed in other states or foreign countries.

The U.S. Supreme Court's June 2015 decision in Obergefell v. Hodges, and decisions made subsequent to it, changed all of this.

Obergefell held that the Federal Constitution protects a fundamental right to marriage. The Court also ruled state laws prohibiting same-sex couples from marrying or failing to recognize same sex marriages performed in other jurisdictions violate the Due Process and Equal Protection Clauses of the 14th Amendment. The decision thus invalidated Michigan's constitutional provision limiting marriage to unions between one man and one woman.

In Stankevich v. Milliron, described in the opening paragraph above, the Michigan Court of Appeals relied on the reasoning in Obergefell to hold that the equitable parent doctrine applies to same-sex parents. Plainly, this decision is welcome news for same-sex couples who divorce and wish to maintain their parental rights and responsibilities with respect to children born during the marriage.

Michigan courts adopted the equitable parent doctrine in 1987 in Atkinson v. Atkinson. Under the doctrine, Michigan courts recognize a legal relationship between a de facto parent and a child when the de facto parent desires such recognition, is willing to support the child and wants the reciprocal rights of custody or parenting time afforded to a parent.

As originally adopted, the equitable parent doctrine applied only to husbands who were not the biological father of a child born during the marriage. The Michigan Supreme Court confirmed the bounds of the doctrine in Van v. Zahorik, where it declined to extend the equitable parent doctrine to parties who were never married. As a consequence, because same-sex couples could not be married in Michigan and because Michigan would not recognize same-sex marriages performed in other jurisdictions, Michigan same-sex couples could not benefit from the doctrine.

All of this changed with the Obergefell and Stankevich cases.

Jennifer Stankevich and Leanne Milliron were married in Canada in July of 2007. Before marriage, Milliron had been artificially inseminated and later gave birth to a child during the marriage. Although she is thus the biological mother of the child, the couple allegedly raised the child as co-parents during the marriage.

The couple separated in March 2009. They initially agreed to a visitation schedule, but the agreement did not last. Stankevich had helped raise the child from infancy as a co-parent, but was now being denied parenting time.

She filed a complaint, asserting she fully participated in the rearing of the child. She requested the trial court to enter an order dissolving the marriage, an order affirming she is the parent of the child, and orders regarding custody, parenting time and child support.

In essence, Stankevich asked the trial court to apply the equitable parent doctrine to give her parental rights with respect to the child.

The trial court dismissed her claim on the basis that she did not have "standing," or the legal right, to seek parental rights to the child. She appealed. The Court of Appeals initially affirmed the trial court's decision, concluding that the equitable parent doctrine should not be expanded to include same-sex couples because Michigan statutory and constitutional provisions precluded the recognition of same-sex marriages, and because the Van decision had previously limited the application of the equitable parent doctrine to the confines of marriage.

Stankevich appealed to the Michigan Supreme Court. In light of the then-pending appeals in federal court cases challenging the constitutionality of same-sex marriage bans, the Michigan Supreme Court entered an order holding her in abeyance. In other words, the Court wanted to learn of the outcome in Obergefell and other similar cases before any further ruling.

Obergefell, when decided, included two major holdings. First, the Court held that same-sex couples have a fundamental right to marry under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Accordingly, Michigan's constitutional provision defining marriage as a union between one man and one woman was declared unconstitutional to the extent that it excludes same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

Second, Obergefell held that “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” As a consequence, the prior holding in the Van decision that the equitable parent doctrine only applies to married couples no longer automatically excluded non-heterosexual couples in Michigan from benefitting from the doctrine.

Accordingly, the Court of Appeals held that Stankevich had alleged sufficient facts that, if true, would establish her standing to seek equitable parenthood, and remanded to the trial court for an evidentiary hearing to determine if the equitable parent doctrine applied.

Stankevich could potentially open the floodgates for waves of same-sex couples seeking to assert equitable parental rights over children born during a marriage performed in another jurisdiction. Above all, parties to a same-sex divorce must be aware the equitable parent doctrine is applicable to those who are not biological parents of children.

Attorneys representing the parties to a same-sex marriage may also identify other components of domestic relations law that hinge on marriage. For example, the length of marriage can be a factor in determining spousal support or property division. Litigants must also be prepared to argue for the appropriate application of these standards to same-sex couples who were legally married outside of Michigan prior to the Obergefell decision.

Mark Hills is a trial lawyer in the law firm of Varnum LLP. He focuses his practice on family law, real estate and commercial matters, and is chair of Varnum's family law practice team. He can be reached at

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