LANSING, MI — The Michigan Supreme Court has heard arguments from attorneys over who can have custody of a child born to an unmarried same-sex couple, based on a case in Kalamazoo County.
Carrie Pueblo, the biological mother of a child born in November 2008, should be granted joint custody with her now ex-partner, attorney Reh Starks said during a hearing Tuesday, April 4, in the Michigan Supreme Court.
Rachel Haas and Pueblo, both residents of Kalamazoo County, had a civil commitment ceremony in 2007 because they couldn’t legally marry. Haas later gave birth to a boy, conceived through in vitro fertilization.
Related: Who Can Have Custody of Children After LGBTQ Relationships? The Michigan Supreme Court must rule.
The couple separated before gay marriage was legalized by the US Supreme Court in 2015. In 2017, Haas did not allow Pueblo any further contact with the child, Pueblo said.
Pueblo had no option to legally adopt the boy at the time of their separation.
Pueblo is asking the court to extend the Just Parents doctrine to her and others who are part of a population not thought of when the doctrine was drawn up, Starks said. No new law needs to be created.
“Unfortunately, Michigan law has not yet had the opportunity to uphold modern family style with modern family dynamics and a modern family composition,” Starks said. “And that’s what we’re asking the court to do here today.”
Pueblo is willing to pay child support as well, Starks said.
There is no need to change the doctrine of just parents, Haas attorney George Perrett said during the arguments. The Michigan Child Custody Act had an update in 2012 that partially established standards for when a third man can be a father. But Pueblo would still not get parental rights under these changes.
“We play around with things we don’t need,” Perrett said.
The legislature can address the issue if there is voter support, instead of the court, Perrett said.
The Michigan Court of Appeals ruled in favor of Haas, saying Pueblo has no legal title to custody in part because they were never married and the commitment ceremony does not qualify as marriage, the appeals court’s opinion said. If they had married in another jurisdiction, the court said its opinion might have been different.
The Democrats have a 4-3 majority on the Michigan Supreme Court.
“The fact is, if a civil commitment ceremony were equivalent to marriage, there would have been no Obergefell (the case that legalized same-sex marriage),” Perrett said.
“Sure,” said Michigan Supreme Court Justice Elizabeth Welch. “Have you ever been to a civil marriage ceremony for straight people?”
“Uhhh, no I didn’t,” Perrett said.
“Why do you think that is?” Which said.
“Because of the marriage ban,” Perrett said.
“Okay. Thanks,” Walch said.
Marriage shouldn’t be the only way for same-sex couples to get custody since same-sex marriages haven’t been legal for so long, Starks said.
“We are demanding that the playing field be leveled for both straight and same-sex individuals,” Stark said. “(We) call for an unbiased interpretation and an open reading to extend current Michigan law to apply to the same ex-couples so they can gain standing and receive the custody and parental rights they so deserve. ”
The court has until July 31 to comment on the case.
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