Gay Couple’s Custody Spat Opens Michigan Same-Sex Parent Rights

A child custody battle between an unwed gay couple spurred a novel Michigan Supreme Court ruling that could launch a wave of new litigation over how to divide same-sex couples’ assets after a falling out.

The justices piggy-backed off of a court-created test that grants parental rights for nonbiological “equitable” opposite-sex parents so long as they have cultivated a relationship with the child, the parent wants to have parental rights, and is willing to pay child support, under the Monday ruling.

The limited circumstances of the decision—the test is open only to couples who wanted to but couldn’t get married prior to the 2015 US Supreme Court’s ruling in Obergefell v. Hodges that all states recognize same-sex marriage—means the number of Michiganders directly impacted is likely small. But conservative dissenters worried the decision might be used to retroactively revive long-dead disputes going far beyond custody battles.

“In the context of same-sex relationships alone, those couples who were not married pre-Obergefell might rely on today’s decision to argue that they were denied the same access to legal rights on issues of property division, spousal support, and any of the other traditional areas of domestic-relations law that accompany a divorce,” Justice Brian K. Zahra said in a dissent joined by Justice David F. Viviano. “Retroactive application of Obergefell might also implicate other areas of the law such as consortium damages, intestate succession and spousal election, and employee benefits and coordination law.”

‘Equal Treatment’

The dispute centers around who gets legal parental rights for a minor child born in 2008 via in-vitro fertilization four years before a same-sex couple split. The couple never married—even after it was legal to do so in Michigan—and the child’s biological mother didn’t want to provide custody rights to her former partner.

“While the decision in this case likely affects few, it is, nonetheless, important for what it represents,” Justice Megan K. Cavanagh wrote for the court’s five-member majority. “Justice does not depend on family composition; all who petition for recognition of their parental rights are entitled to equal treatment under the law.”

The biological mother argued that extending this test will cause problems for trial courts by unearthing grievances between same-sex couples who didn’t wed.

Beyond “unintended consequences in child custody cases, this special carve out would create an equal protection and due process nightmare for those same sex couples who may not have had children, but who were denied the same access to legal rights and the courts, pre-Obergefell, as different sex married couples, on issues of property division, spousal support, and any of the other traditional areas of domestic relations law that occasion a divorce,” she said in a brief. “Are those typical, non-children related ‘marital dissolution’ issues to a same-sex couple any less deserving of the law’s equal protection and due process?”

The case is Pueblo v. Haas, Mich., No. 164046, 7/24/23.