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Equitable-Parent Doctrine Extended to Same-Sex Couples

Clarkston Legal July 27, 2023

same sex couple ringsLast April, we posted about oral arguments at the Michigan Supreme Court in a landmark child custody case, Pueblo v Haas, that examined the equitable-parent doctrine. Here is a link to our earlier post which contains a video link to the oral arguments.

Earlier this week, the Michigan Supreme Court issued its opinion in the case. Pueblo is important because it expands the equitable parent doctrine on constitutional grounds with an emphasis on a family court's equitable powers.

Here in Michigan, the equitable-parent doctrine holds that a person who is not a biological parent of a child nevertheless may be considered one under certain legally enumerated circumstances where the person desires to continue in the position of a parent and is willing to bear parental responsibilities such as paying child support.  

In family court, custody is statutorily determined pursuant to the “best interests” of the minor child; a family court is also empowered to make findings and rulings in equity; and all courts in Michigan must make rulings that are constitutional. These foundational family court principles converged in the Pueblo case.

Carrie Pueblo was in a same-sex relationship with Rachel Haas prior to the era of marital equality ushered in by the 2015 SCOTUS decision in Obergefell v Hodges. During their relationship, the lesbian couple decided to have a child through invitro fertilization; Ms. Haas was selected to be the biological “mother” of their child.

After the couple split, Ms. Pueblo filed an action for custody and parenting time of the minor child. Ms. Haas disputed this cause of action, asserting that Pueblo -lacking any biological or adoptive connection with the child- did not have standing to bring the case and failed to state a claim on which relief can be granted.

Prior to their break-up, the couple unsuccessfully attempted to place Ms. Pueblo on the child’s birth certificate; unsuccessfully applied for adoption; and participated in a civil commitment ceremony which featured an exchange of rings. They could not get married due to the unconstitutional ban on same-sex marriages that existed in Michigan prior to the 2015 Obergefell decision.

Here is a link to the 28-page majority opinion, the concurrence and the dissenting opinions. The Michigan Supreme Court found that Pueblo’s allegations that she cultivated the development of a parent-child relationship over an appreciable period, and that she desires to have parenting time and is willing to pay child support were sufficient to advance her claim. Accordingly, they reversed the lower family court and the Court of Appeals, remanding the matter to the lower court for additional proceedings.

In its ruling, the Michigan Supreme Court held that an extension of the equitable-parent doctrine was appropriate for same sex couples. Prior to Obergefell, the equitable-parent doctrine was used to award custody and parenting to a husband or father who parented a child within the context of his marriage/relationship without knowing lacked any genetic connection to the child. Since Obergefell, family courts fielded custody disputes over children raised by same-sex partners who were previously disallowed to legally marry under Michigan law.

The Pueblo Court established the rule that a former member of a same-sex couple seeking custody of a child to whom they did not give birth, and with whom they share no genetic connection, is entitled to bring a claim for equitable parenthood and thus establish standing to bring a custody action. The High Court held that to do so, the party must establish by a preponderance of the evidence [a relatively low threshold] that the same-sex parties would have married prior to the child’s conception but for Michigan’s now-abandoned prohibition on same-sex marriages.

Here at Clarkston Legal, we think that Ms. Pueblo is going to prevail on remand once she can present evidence on the following relevant but not necessarily controlling factors:

  • whether the couple took advantage of other extra-marital options to recognize their relationship, i.e., a civil commitment ceremony or public ring-exchange;

  • whether the couple had children during the relationship;

  • whether the couple held themselves out as a married couple;

  • whether the couple shared child rearing responsibilities;

  • whether the couple comingled their financial resources;

  • whether the couple made significant joint financial decisions;

  • whether the couple resided in the same household; and

  • whether the couple sought to adopt any of their partner’s children.

These factors are not an exhaustive list but are important points on which to offer evidence at a Pueblo hearing. The rationale behind the doctrine is that it is in the child's best interests to continue the already existing but heretofore not legally recognized relationship of one-half of a same sex couple.

Justice Kyra Bolden, the newest gubernatorial appointment to the High Court in Michigan, concurred with the majority but wrote separately to emphasize that the legislature should amend the Child Custody Act and other legislation to conform to the SCOTUS ruling in Obergefell.

Justices Brian Zahra and David Viviano wrote in dissent to question the validity of the equitable-parent doctrine and to warn that a “legally unsupported extension” of the doctrine would result in unanticipated consequences going beyond the Child Custody Act. Nor did this conservative pair of justices like the “but for” test fashioned in the majority opinion [whether a couple would have been married “but for” the now-unconstitutional ban on same-sex marriage]. Their stated fear is that the test will be applied in an overbroad manner. Like Justice Bolden, the dissenters emphasized that Pueblo’s remedy lies with the legislature, not the courts.

At Clarkston Legal, we favor recognizing committed parenting under the appropriate circumstances. While it is true that a professional legislature should be able to conform key statutes impacting custody -starting with the Child Custody Act- such legislative initiatives often get choked-out by political initiatives and a complete lack of legislative focus.

If you or a family member are facing a custody challenge due to participation in a same-sex relationship, contact our office to discuss your legal options.ssu