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No Parenting Time for Bio-Mom’s Same-Sex Partner

Clarkston Legal July 20, 2016

Despite marital equality, same-sex partners and parenting time pose significant problems for unmarried couples. Often, specific cases highlight the heartbreak that comes with uncertainty in the law.

Every now and then, this blog highlights a case that really captures some of the progressive features of our society. The Michigan Court of Appeals decided the published thus binding decision in Lake v Putnam.

Same-Sex Partners and Parenting Time

This lesbian couple -together but unmarried for nearly 14-years- used artificial insemination for child birth. Defendant Kerri Putnam was the biological mother. Plaintiff Michelle Lake never adopted the child but raised the child as though she was a legal co-parent.

Legal trouble arose when the couple separated and the biological mother, Kerri Putnam, refused to allow Lake to see the minor child. Plaintiff Lake filed a custody action in the Washtenaw County Family Court.

The Non-Biological “Parent”

The biological mother filed a motion for summary disposition based on the long-established precedent that standing to bring a custody action in the family court is narrow; an unrelated third-party does not acquire legal standing simply by residing with the child. The family court judge denied the biological mother’s motion for summary disposition and awarded Plaintiff a supervised parenting schedule.

Michigan Court of Appeals Decision

On appeal, Plaintiff Lake relied on the seminal Obergefell v Hodges same-sex marriage and adoption case decided by the SCOTUS in 2015 to raise claims of Due Process and Equal Protection.

The Michigan Court of Appeals rejected Plaintiff’s constitutional claims based on the lack of evidence that the parties were ever married or even intended to become married. Without the requisite legal status of being a spouse to the biological parent, having any legal rights to the child she raised and loved for several years was legally beyond her reach.

Out in The Cold

Ms. Lake may never see the child again; that is now entirely up to the biological mother. Obtaining relief through a further appeal to the Michigan Supreme Court is highly unlikely; the law is that clear on this complex subject.

This decision features Lake’s flawed but noble argument that standing arose under the “equitable-parent” doctrine. The intermediate appellate court rejected that assertion based on a dispositive shortfall: the child was never born out of wedlock as required under the doctrine.

In making her argument, Ms Lake relied on an Oklahoma case that awarded parenting time to a same-sex partner from a failed relationship. That so-called “parent” was in a similar position as Ms Lake. Custody was awarded under the guise of in loco parentis; a Latin phrase that translates to, “in the place of a parent.”

No Right to Parent without Biological Connection or Marriage

Put simply: an unmarried same-sex couple’s demise does not give rise to a claim under the equitable parentage doctrine because that doctrine only applies to married couples. The non-biological partner must seek standing either through a same-sex adoption or through marriage.

In the end, it is quite a shame that Ms. Putnam, the biological mother, holding all the cards and all the legal power, elects to terminate Ms. Lake from her daughter’s life entirely. Ms. Putnam may have won the case, but her daughter lost a piece of her heart.