Same-Sex Custody Dispute

Now that marriage equality is a fundamental constitutional right, same-sex custody disputes have a family court framework for resolution. This is not the case, however, for the legion of unmarried same-sex couples that have children.

One such case is pending in the Monroe County Probate Court involving a lesbian couple that utilized artificial insemination to conceive their two children, now ages 6 and 8. Instead of getting married, however, the couple separated prior to the landmark SCOTUS decision on marital equality.

The former couple consists of a physician and a teacher; the physician, who carried both children in utero and gave birth, is the biological mother of the couple’s daughter via donated sperm. Their son, however, was conceived with donated sperm and egg pursuant to a gestational agreement signed by the couple.

The teacher has served as the guardian of both children without any biological connection. Both women have helped raise the children from birth; both have contributed financially.

Now, the physician has filed a petition in the probate court to terminate her former partner’s guardianships over both children. The issue in the case comes down to how the law defines a “parent”.

Many states, Michigan not included, have adopted the Uniform Parentage Act, a model act addressing parentage issues approved by the American Bar Association. In sum, the UPA adds many new definitions to the participants in the determination of parentage, attempting to align parentage as a legal concept with recent scientific advances in human conception.

In the Monroe Probate Court case, however, even the UPA would not recognize someone in the teacher’s position -an “intended parent” as a “legal parent”. The uniform act limits its definitions of Mother to: a woman whose donated egg was fertilized; a woman who adopts the children; a party to a gestational agreement; or a same-sex spouse. The teacher is none of these things.

So does the teacher lose her right to parent the children she has raised since birth simply because the two adults have ended their relationship? Under the current state of Michigan’s law, the harsh answer is “yes”.

For the probate judge that caught this hot potato, some hard choices must now be made. The case has been ordered to mediation in the hopes that the parental litigants can fashion a compromise “partnership agreement”.

If no such agreement is executed, the judge will be faced with terminating [via not recognizing] the teacher’s rights to the children, or fashioning some judicial band aid that provides the teacher with some parental rights or contact with the children.

One possible solution is for the probate judge to simply allow the guardianship to continue. Either way, the probate judge’s final decision in the matter will be appealed to the Michigan Court of Appeals.

Another possibility is for the Michigan legislature to adopt the UPA. While a possibility, that will not occur soon enough for this couple as their children’s childhood fades away amid the probate litigation.

If you or a family member face daunting custody or paternity issues, contact our law firm to discuss your options. We offer a free initial consultation.