Michigan Supreme Court extends custody rights of unmarried LGBTQ parents

• Michigan Supreme Court’s Monday ruling further expands LGBTQ rights
• Unmarried LGBTQ parents previously banned from same-sex marriage can now fight for custody over their non-biological children
• Advocates cheer decision; conservative justices say it may have ‘far-reaching ramifications’

LANSING — Unmarried LGBTQ parents in Michigan can seek custody of children with a former same-sex partner if they were prohibited from marrying by now-overturned state law, the state Supreme Court ruled Monday.

“The children of same-sex partners bear no lesser rights to the enjoyment and support of two parents than children born to married opposite-sex parents,” the court said in the ruling.

The court’s 5-2 ruling on Monday stems from a lawsuit filed by Carrie Pueblo, who took her ex-partner Rachel Haas to court for custody of a son Haas gave birth to in 2008. The two separated in 2012, and Pueblo claims she kept in touch with and cared for the child until Haas prohibited her from seeing him in 2017. 

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At the time of the child’s birth, same-sex marriage was illegal in Michigan. The U.S. Supreme Court legalized same-sex marriage nationwide in the landmark case of Obergefell v. Hodges in 2015.

Pueblo did not have a legal option to adopt the child because of the ban, and her attorney argued that taking her away from the son would jeopardize the child. Haas’ lawyer countered that Pueblo was not a “natural parent” by biological means, and that the two were never married. 

The state’s “equitable parent doctrine” — a principle that allows non-biological parents to fight for custody over their children only if they were previously married — applied exclusively to heterosexual partners before same-sex marriage was legalized nationwide, according to the American Civil Liberties Union of Michigan.  

The Monday ruling — in favor of Pueblo — effectively extends the doctrine to unmarried same-sex parents if they can prove they would have married if it was legal. 

“Justice does not depend on family composition; all who petition for recognition of their parental rights are entitled to equal treatment under the law,” according to the ruling written by Justice Megan Cavanagh.

She wrote that the ruling “narrowly extend(s) the equitable parent doctrine as a step toward righting the wrongs done by that unconstitutional prohibition (on same-sex marriage.)”

Two conservative justices, David Viviano and Brian Zahra, dissented, arguing the Legislature should decide the policy. 

Zahra noted he feared the decision could have “far-reaching ramifications” and be used by same-sex couples who broke up before 2015 to petition the court for “property division, spousal support and any other traditional areas of domestic-relations law.”

“I am uncomfortable with retroactively recognizing a marriage-equivalent relationship,”  Zahra wrote.

“(This) 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. 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.”

The ACLU of Michigan called the decision an “important step forward” for the LGBTQ rights movement.

“Until now, when children were born into families headed by unmarried same-sex couples, a child-parent bond could be severed forever because the non-genetic parent was considered a ‘legal stranger’ to the child,” the ACLU of Michigan and LGBTQ+ Rights Project said in a joint statement Monday.