The United States Supreme Court struck down as unconstitutional laws - like Michigan's - defining marriage as between one man and one woman. With same sex marriage legalized throughout the United States in Obergefell v Hodges, ___ US ___; 135 S Ct 2584; 192 L Ed 2d 609 (2015), this November 19, 2015 decision is Michigan's first chance to realize that same sex marriages present some of the same legal issues as traditional marriages.
In 2007, Jennifer and Leanne entered into a same sex marriage in Canada. Since the two women were US citizens residing in Michigan, being legally married in Canada was more symbolic than anything. Yet, the process did for that couple what all marriage ceremonies strive to do: a public manifestation of an inward love and commitment to each other. Although not "legal" yet in the States, Jennifer and Leanne considered themselves married.
Soon thereafter, the couple decided to have a child. Biology being what it is, this required some advanced planning. The couple elected to conceive by Leanne being artificially inseminated. Nine months later, the couple gave birth to a child.
Leanne is, of course, the biological mother to the child. The problem, though, is that Michigan law recognizes no more than one mother at a time to any child. More to the point, Michigan's Child Custody Act defines "parent" as the "natural or adoptive parent of a child". Jennifer obviously cannot be the natural parent, and because Michigan did not recognize same sex unions, she also could not legally be an adoptive parent due to being a woman and the child already having a mother.
This scenario wouldn't have been much of a problem had things continued to go as planned. Jennifer and Leanne could have put in place legal documents such as powers of attorney and a sound estate plan so as to provide Jennifer with sufficient legal authority over the child. Still, those best laid plans cannot survive that "D" word that can creep up in any relationship - divorce.
And that's essentially what brought this case to the court system. In 2009 - still some six years away from legal marital status - Jennifer and Leanne separated. Because they were not considered legally married, the courts were largely of no help; they were essentially left in the same position as a man and woman who cohabitate. Yet, the wrinkle in this story remains the child.
When parents - married or single - cannot agree as to custody, support, and visitation of a child in common, courts step in to resolve the issue. Jennifer and Leanne could not agree on a visitation schedule with the child, but because Jennifer wasn't a "parent" she couldn't go to the courts for help. In fact, she did try that and was denied.
Michigan continues to recognize what's called the "equitable parent doctrine" from Atkinson v. Atkinson, 408 N.W.2d 516, 160 Mich. App. 601, 160 Mich. 601 (Ct. App. 1987) - which essentially means that courts can recognize a man as the parent if a child is born or conceived while he is married to the mother even if he is not the biological father. This provided no relief to Jennifer, with the courts stating that to recognize her as an equitable parent would negate the legislative intent behind Michigan's same sex marriage ban.
Everything changed recently after the Obergefell decision. Because same sex marriage is now recognized, Jennifer may now avail herself of the courts - not to have their now defunct marriage legitimized, but to be recognized as her child's parent.
This present case is not so much about same sex marriage, but parental rights. The Appeals Court ordered this case back to the trial court to determine the validity of the couple's 2007 Canadian marriage and the applicability of the equitable parent doctrine. Assuming that the marriage was valid according the the principles and intent of Canadian law at the time, Jennifer could then be considered the equitable parent to the child since it was born during a valid marriage.
Stay tuned to how this develops as this will be sure to become a landmark case in Michigan legal history.