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Same-sex Marriage and Child Custody in Michigan

I am a divorce lawyer or family law attorney in Oakland County, Michigan. My office is centrally located near Rochester Hills and Rochester, in Auburn Hills, Michigan which is easily accessible to Clarkston, Troy, Birmingham, Lake Orion, Oxford and Bloomfield.  An issue that is getting more attention in our State is same-sex marriage and how the courts will interpret the recent Supreme Court decisions and ancillary issues related to same-sex marriage.

The Issue

When there is a same-sex marriage and one of the parties to the marriage gives birth to a child through artificial insemination during the marriage, does the other spouse have standing to pursue custody or visitation, known as parenting time in Michigan?

The Answer

In short, the answer appears to be no for now, the courts will not allow the other spouse to seek custody or parenting time.  The Court of Appeals addressed this issue in Stankevich a/k/a Milliron v Stankevich, Mich App Docket No. 310710, October 17, 2013 (unpublished).

In that case, the parties entered into a same-sex marriage in Canada.  The Defendant was artificially inseminated and gave birth to a child.  The parties later separated and Defendant would not allow the Plaintiff to have custody or parenting time rights (visitation) with the child.  The Plaintiff filed a complaint asserting that she fully participated in the care and rearing of the child and that she is the fit parent of the child.  The Defendant filed a motion for summary disposition, which the divorce trial court granted and dismissed the case.

The Michigan Court of Appeals affirmed under the following reasoning.  The Child Custody Act (CCA) indicates that child custody exists between the parents, agencies or third persons.  Parent is defined as the natural or adoptive parent of a child.  The court then found that the Plaintiff was not the adoptive parent, as she had not adopted the child and frankly under Michigan law she could not adopt the child as the laws are currently written.  It then found that a natural parent means related by blood and the Plaintiff was not “related by blood”.

It then went on to state that the Supreme Court in previous cases has admonished: a third party cannot create a custody dispute by simply filing a complaint in circuit court alleging that giving legal custody to the third party is in the best interest of the child.  A third party does not have standing to create a custody dispute unless the third party is a guardian of the child or has a substantive right of entitlement to custody.

The Plaintiff argued that even though she is not a biological or adoptive parent, the court should expand the equitable parent doctrine to include same-sex couples and that previous court cases wrongly limited this doctrine to a legal marriage in Michigan.  The court disagreed with her again.  It stated that equitable parent applies where the husband and child mutually acknowledge a relationship as father and child or the mother has cooperated in the development of such a relationship over a period of time prior to the filing of a complaint for divorce; the husband desires to have the rights of a parent and the husband is willing to pay child support.

The court further reasoned that the Michigan Supreme Court previously refused to extend this doctrine to a man who was not married to the child's mother and was not the biological father but cohabited with the mother and was in a relationship with her when the child was born.   It then stated that it was against this precedent to extend the equitable parent doctrine to cases where the parties enter into a union that is not recognized as a marriage in Michigan.

The Court then went on to state that Michigan Statute defines marriage as between a man and woman and invalidates marriages between same-sex individuals regardless of whether the marriage is contracted according to the laws of another jurisdiction.   Also, the Michigan Constitution states that the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

The court held that to recognize same-sex unions as a marriage under the equitable parent principle would directly violate the Michigan Statutes and Constitution so it was bound by those to deny relief.  Further, it held that it did not have authority to decide that previous Supreme Court rulings violated the equal protection clause.


To me, this seems like a cop-out.  The court should have at least entertained the idea of extending the equitable parent doctrine or otherwise recognizing that the Supreme Court precedent and Michigan's laws and constitution might violate the equal protection clause.  This woman should have had her day in court and the child should have the right to continue the relationship which existed before the breakdown of the parents' relationship.

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