Christine Yared

LGBT Equitable Parent

Non-biological Parent as Equitable Parent

On December 15, 2014, Michigan Lawyers Weekly published an article about one of my cases. Below is a link to the published article and my blog about the case.

Second parent adoption provides a legal method for same-sex couples raising children together to both have equal legal rights to their children. Michigan does not have a law which prohibits second parent adoptions for same-sex couples, yet it also does not have a law authorizing this type of adoption.

A small number of judges in some Michigan counties were quietly approving same-sex adoptions until 2002 when then Michigan Supreme Court Chief Justice Maura Corrigan stopped the adoptions by telephoning the Chief Judge of the Washtenaw County Court and telling him to put a stop to second-parent adoptions. The judge handling the second parent adoptions rightfully refused. We live in a country where laws are required to be made and interpreted through the legislative and court systems, not via the telephone. Yet Washtenaw County Chief Judge followed Justice Corrigan’s telephone demand by taking over adoptions himself and stopping the second parent adoptions. Justice Corrigan’s actions left children of same-sex couples without the right to have legal connections to both of their parents.

Earlier this fall, I had a case which illustrates the problem with the current state of the law in Michigan. The facts involved the separation of two women who, while living in a committed relationship, had two children through the use of an anonymous sperm donor. When their first child was born, the non-biological mother legally adopted their child. The non-biological mother could not adopt their second child however, because by that time the county where they obtained their first adoption, Genesee, was no granting second parent adoptions for same-sex couples.

Years later when the couple separated they were left with a unique situation. The two women had equal parental rights with their oldest child, but the non-biological mother did not have parental rights related to their youngest child. Yet the children were raised as siblings who shared the same two parents.

I filed a motion on behalf of my client, the non-biological mother, asking the court to conclude that she is an “equitable parent” of their youngest child. The “equitable parent” doctrine is a legal concept which allows a court to provide full legal parental rights to a person when the facts present a situation where doing so would be in the best interest of the child. The equitable parent doctrine has been primarily used in Michigan in cases involving heterosexual couples.

The biological mother’s attorneys argued that a 1999 Michigan Supreme Court ruling, Van v Zahorik, prevented the court from concluding that the non-biological mother was an equitable parent. In Van, the court limited the use of the equitable parent doctrine to the context of legal, and thus heterosexual, marriages. I argued that the facts in my client’s case could be distinguished from Van and that the court should make a decision consistent with the best interest of the child.

Kent County Family Law Judge G. Patrick Hillary granted my request. The judge emphasized that he was not making social policy but instead applying the facts of the case to the “best interest of the child” standard which is the foundation of Child Custody Act of Michigan. The judge noted several distinguishing facts. In this case, prior to the birth of each child, the women signed a co-parenting agreement prepared by an attorney stating their intent for them to be recognized as equal parents. In addition, the women prepared estate planning documents naming each other as guardians of their children. Since the women used anonymous sperm donors there was not any other person is the child’s life claiming parental rights. Further, the non-biological mother continued to actively parent both children during the two years following their separation, following a 50%/50% shared parenting time schedule and thus contributing financially to both children. Finally, during that same time the non-biological mother paid 50% of the costs related to both children.

In addition to being courageous and consistent with the best interest of the child, Judge Hillary’s ruling is instructive for LGBT parents and those planning to have children. Below are some recommendations which flow from the judge’s ruling.

1. Consult with a qualified, LGBT family law attorney in Michigan. Do not rely on standard legal forms contained in books or found online which are not drafted by a qualified lawyer who practices law in Michigan.

2. LGBT parents should sign co-parenting agreements prepared by a knowledgeable Michigan attorney, if possible prior to the birth of the child. Keep in mind that it will still be beneficial to sign a co-parenting agreement after the child’s birth, even if years have passed. Having a correctly drafted agreement is always better than not having one.

3. LGBT parents should also sign estate planning documents prepared by a knowledgeable Michigan attorney.

4. The use of anonymous donors is beneficial because a judge can issue orders without worrying about the existence of a known donor appearing in the future and asserting parental rights. Of course, the decision of whether to use a known or unknown donor is personal and complex.

5. If you use a known donor consult with a qualified, LGBT family law attorney in Michigan and if possible, enter into a written agreement with the donor.

6. Maintain regular consistent parenting time with your child after you and your partner separate. If that is not possible, seek qualified legal advice immediately. If your attorney informs you that you do not have any options, you need to find an attorney who understands the various options which do exist.

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