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Michigan Court of Appeals Decides Unmarried Same-Sex Partners Do Not Become Legal Parents Together By Contract Alone

On May 15th, 2018, the Court of Appeals released their decision in Sheardown v Guastella, ___ Mich App ___; ___ NW2d ___ (2018)(Docket No. 338089) deciding that a contract alone between a same-sex couple does not create legal paternity for the purposes of seeking custody and parenting time even in light of the U.S. Supreme Court decisions in Obergefell v Hodges and Pavan v Smith.

The Plaintiff and Defendant, both women, were in a romantic relationship and desired to have and raise a child. They entered into a contract with each other and a sperm donor some time before 2015, in the days when Michigan still outlawed same-sex marriage. The Defendant agreed to be inseminated by the sperm donor to become pregnant with children to be raised by the couple. The contract stated that the Plaintiff and Defendant would be legal parents of any child born from inseminations, that the sperm donor would not seek any paternity or parental rights, and that the Plaintiff would file for adoption as soon as possible after birth. A child was born according to the terms of the contract, but the Plaintiff never formally adopted the child prior to the relationship ending before 2014. Notably, the relationship ended one year before the Plaintiff and Defendant could have legally married in Michigan.

Plaintiff filed a petition for custody and parenting time rights in 2014, asserting she had acted as a parent for the child's entire life and it was in the child's best interests to keep that bond. The trial court dismissed the petition via summary disposition on the basis that the Plaintiff was not a legal parent and had no standing to pursue the action. Plaintiff appealed to the Court of Appeals on the basis that she should be considered a parent under the contract.

The Michigan Court of Appeals, in 2017, remanded the case back to the trial court to determine whether Michigan's definition of "parent" was unconstitutional in light of recent U.S. Supreme Court decisions regarding same-sex couples. MCL 722.22(i) defines "parent" as the "natural or adoptive parent of a child". The U.S. Supreme Court held in Obergefell v Hodges, 135 S Ct 2584; 192 L ED 2d 609 (2015) that same-sex marriage was officially legalized nationwide. It later held in Pavan v Smith, 137 S Ct 2075; 198 L Ed 2d 636 (2017) that same-sex spouses cannot be denied being added to a child's birth certificate where there is a statutory scheme that automatically add a husband to a birth certificate as legal parent when the wife has a child conceived out of wedlock. Do these circumstances apply to Plaintiff in this matter to confer legal paternity?

The trial court, on remand, made two rulings. First, the definition of "parent" under MCL 722.22(i) was unconstitutional in light of Obergefell and Pavan. Second, despite the U.S. Supreme Court's rulings, the holdings cannot be applied retroactively to Plaintiff's matter since everything occurred before 2015 so she still did not have standing to pursue custody and parenting time. Plaintiff once again appealed this decision to the Court of Appeals.

The Michigan Court of Appeals, in this instant decision, determined that the trial court was wrong and the definition of "parent" under MCL 722.22(i) was constitutional because it applied equally to same-sex and opposite-sex married couples. Since the Plaintiff and Defendant never married and the appellate court was not considering "marriage benefits", then Obergefell and Pavan did not apply. However, the trial court was still correct in holding the Plaintiff still had no standing. Since there is not different treatment of same-sex and opposite-sex UNMARRIED couples for the "parent" definition, there is no equal protection violation there either. If a couple is not married, the non-natural or non-biological parent is not a "parent" under the law regardless of gender or sexual orientation. This applies to the Plaintiff as well.

But same-sex marriage was illegal in Michigan prior to 2015, so the Plaintiff and the Defendant could not have been spouses anytime before their relationship ended in 2014. Is it fair to penalize the Plaintiff now for the legal inability to become a legal parent through marriage at the time? The Court of Appeals deflected this argument by determining that Obergefell and Pavan were legal decisions made concerning married couples, so it was inappropriate to apply its holding to unmarried couples. Furthermore, it determined that Plaintiff and Defendant could have gotten married in any of the states of the Union that permitted same-sex marriage at that time (e.g. Massachusetts, California, etc.). Finally, it indicated that the Plaintiff and Defendant did not even hold themselves out as engaged during their relationship. Simply put, the Court of Appeals was ignoring any impediments to same-sex marriage in Michigan to determine that the Plaintiff should not be entitled to any relief now.

It is possible that the Plaintiff will try to seek relief at the Michigan Supreme Court to determine if the Court of Appeals erred in its decision. However, there is no automatic right to appeal to the Michigan Supreme Court and they will only hear the matter if they are persuaded that there was a mistake and the question merits review. Recently, in Mabry v Mabry, 499 Mich 997; 882 NW2d 539 (2016), the supreme court declined to hear a very similar matter where a same-sex partner sought custody and parenting time rights to the former couple's child but was denied standing because that plaintiff was not the biological parent and not married to the actual parent. The lack of marriage made the equitable-parenting doctrine available to third parties for standing in custody and parenting time cases inapplicable in that case. Absent a desire to change very recent precedent, it may be difficult for the Plaintiff in Sheardown v Guastella to obtain further relief in a higher court as well.

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