Michigan Supreme Court expands custody rights of LGBTQ parents
The Michigan Supreme Court ruled 5-2 that a non-biological LGBTQ+ parent has the legal right to argue for custody of a child they raised with a same-sex partner before same-sex marriage was legalized in the U.S. in 2015.
A majority of the court’s justices, ruling in Pueblo v. Haas, found that a spouse who isn’t the biological parent of a child does have the right to argue for custody if that parent and the child acknowledge a parental relationship between the two, the individual seeking custody desires to have the rights of a parent and if that individual is willing to pay child support.
In an opinion published Monday, the court remanded the case back to Kalamazoo Circuit Court to consider Carrie Pueblo’s standing for custody under that standard, dubbed the “equitable parent doctrine.”
“Today we announce a limited extension of the equitable-parent doctrine for individuals in same-sex couples who were unconstitutionally prevented from marrying before Obergefell. On remand, the trial court must conduct an evidentiary hearing on whether Pueblo has standing as an equitable parent, applying the threshold test that we announce today,” Justice Megan Cavanagh wrote in the majority opinion.
“Pueblo must demonstrate by a preponderance of the evidence that she and defendant would have chosen to marry before the child’s birth but for Michigan’s unconstitutional exclusion of same-sex couples from the right to marry. Should she do so, she has the right to a best-interest evaluation for custody and parenting time.”
The case involves Pueblo and Rachel Haas, a now-separated couple who never married but held a commitment ceremony in 2007, according to court filings. That was years before the landmark U.S. Supreme Court ruling in Obergefell v. Hodges, which legalized same-sex marriage nationally in 2015. In Michigan, voters approved a constitutional amendment banning the recognition of same-sex marriages in 2004. This ban stood in place until 2014, when a federal appeals court rejected the ban as unconstitutional, paving the way for legal same-sex marriage in Michigan.
Haas gave birth to a boy through in vitro fertilization (IVF) in 2008. Pueblo and Haas separated in 2012, and Pueblo contends she remained in contact and caring for the boy until 2017, when Haas asked her to not see the child anymore.
Pueblo filed a complaint for custody, but a trial court dismissed her claim in 2021. A Michigan Court of Appeals panel also sided with Haas later that year, before the Supreme Court agreed last year to take up the case.
More: Court documents identify Livonia attorney accused of trying to smuggle drugs into prison
Justices Brian Zahra and David Viviano dissented from the majority opinion. Zahra wrote the equitable parent doctrine “is a judicially crafted doctrine based entirely on the sanctity of marriage,” and without being put into state policy by the Legislature, shouldn’t be used by the state’s high court in this case. Additionally, Zahra said it will be difficult for lower courts to determine whether a same-sex couple would have married before the Obergefell ruling.
“The test requires courts to speculate as to whether a same-sex couple would have chosen to get married had they possessed the opportunity to do so,” Zahra wrote. “Courts will be required to dive into all public and private aspects of a now-defunct relationship to hypothesize whether the couple would have chosen to marry. This is an especially difficult inquiry where litigation will undoubtedly be complicated by facts no longer discoverable and where, as here, one party to the couple adamantly denies that they would have married.”
In a separate concurring opinion, Justice Kyra Harris Bolden wrote the Michigan Legislature should take up laws to clarify marriage definitions that account for Obergefell’s legalization of same-sex marriage, as well as the modern nature of parenting sans marriage and advent of new reproductive technologies.
“Marriage, of course, offers a presumption that both spouses are the natural parents of the child for many legal purposes. And had the parties had the legal avenue of marriage available to them and chosen to pursue it, this case might have been very different — even unnecessary. However, statutory issues remain because state law does not yet fully contemplate the interaction between same-sex relationships and parenting,” Bolden wrote.
In a statement, the American Civil Liberties Union of Michigan’s LGBTQ+ Rights Project staff attorney Jay Kaplan celebrated the ruling, calling it “an important step forward in the ongoing effort by the ACLU and its allies to obtain equal rights for every LGBTQ+ person in Michigan.”
In court briefs, Haas' lawyers wrote that she had chosen not to marry Pueblo, regardless of the legal possibility of marriage at the time of their relationship. Pueblo's lawyers, in their own briefs, pointed out that she was involved in the child's life, even after she and Haas separated.
Contact Arpan Lobo: alobo@freepress.com. Follow him on Twitter @arpanlobo.
This article originally appeared on Detroit Free Press: Michigan Supreme Court expands custody rights of LGBTQ parents
