Inside the Unique Battle Between Two Moms for Custody of Their Kids

Custody battles are always upsetting. But the case of Joy Phillips’ and Amber Berndt’s fight over their two daughters is an especially excruciating conundrum. That’s because the same-sex couple was never legally married, leaving the non-biological mother, Phillips, in limbo — struggling to secure her parental rights so that she can then defend them.

“This is a very important case,” American Civil Liberties Union (ACLU) LGBT Project attorney Jay Kaplan tells Yahoo Parenting. The legal drama, currently unfolding in a Michigan court, is between the former couple, together for more than 13 years. They were married in a non-legal ceremony, wore wedding rings, and together raised their two daughters, now 10 and 7, who were given the legal last name of “Berndt-Phillips” before their moms split in Dec. 2014. “And we are going to see more of these cases in the future, because courts are going to have to deal with the effect of the Supreme Court’s marriage equality decision,” Kaplan adds. “Couples who didn’t get married because they couldn’t shouldn’t be denied the rights that same sex-married couples now have.”

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Phillips, 41, and Berndt, 37, weren’t able to legally marry before Berndt gave birth to their daughters via donated sperm, and whom they co-parented 50-50 even up to eight months after the moms broke up. According to court records examined by Michigan Live, each mother claims she was the primary caregiver, that the girls called both women “mom,” and that Berndt listed Phillips as the guardian of the children in her will.

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But when Berndt recently decided that she wanted to relocate a couple of hours away with their kids to be with her new partner, Phillips protested and petitioned the court to formalize their shared custody. Kent County Family Court Judge Kathleen Feeney is considering the arguments, and noted at a recent hearing, “I feel like Star Trek in that we’re going to unknown places that have yet to be explored,” according to Michigan Live.

Both parties, of course, insist that the matter is actually quite simple. Berndt’s attorney Scott Sherlund insists that Phillips has zero legal right to even claim custody. “It’s a difficult case anytime you’re involving children, whether it’s same-sex parents or man and a woman, custody cases are always difficult,” he tells Yahoo Parenting. “My hope is that everyone going through this is treated with respect and dignity. There’s a controlling authority law in place on this and until something changes in the legislature, we have to live with the laws we have. Right now we believe we are correctly applying the law as it’s written.”

On the other side, Phillip’s lawyer Christine Yared reportedly maintains that because the Michigan state law that prohibited the couple from marrying has been ruled unconstitutional — with the Supreme Court’s June decision — Phillips should be able to make a claim toward motherhood of the girls she’s raised since birth. “This case is about securing the right of the children to have a continuing relationship with both of their parents,” Yared tells Yahoo Parenting. “The children should not lose their relationship with one of their parents simply because the state they live in would not allow their parents to get married or recognize out-of-state marriages.”

Just last year, a New York judge fielded a similar case — and ruled that another mother did not have legal standing to joint custody of her son with her partner, who gave birth to the boy. At the time, Suzanne B. Goldberg, director of the Center for Gender and Sexuality Law at Columbia University, told the New York Times that the verdict was “troubling” because “it leaves a same-sex parent as a legal stranger to her child.”

And the ACLU’s Kaplan, for one, agrees. “It would be unconstitutional to not recognize Phillips and deny her right to her children,” he tells Yahoo Parenting. “I can’t tell you how many calls I got from moms whose kids got taken away before the marriage equality decision, and there was nothing they could do about it. The courts said, ‘You can’t get married so you don’t have a right to the kids.’ But now the courts can no longer deny same-sex unions, so they can’t use old or bad law to justify denying families.”

LGBT couples, he continues, “simply want to be treated like heterosexual couples. And in heterosexual couples you can’t just take a kid away from the other parent.”

(Top photo: File photo)

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