October 19, 2019

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When Same-Sex Marriage Ends, Ex-Spouse May Have Custody Rights

On June 26, 2015, the U.S. Supreme Court issued its opinion in Obergefell v. Hodges, in which it ruled that the Fourteenth Amendment to the United States Constitution requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

A recent opinion of the Michigan Court of Appeals applied the Obergefell decision and reversed the dismissal of a claim under the equitable parent doctrine.

The parties in Stankevich v. Milliron, COA Docket No. 310710, decided November 19, 2015, were married in Canada in July 2007. Prior to the marriage, the defendant was artificially inseminated and gave birth to a child during the marriage. The parties separated in March 2009. An initial agreement to a visitation schedule between the plaintiff and the minor child did not last. The plaintiff then filed a complaint alleging the parties had an agreement for conceiving and raising the minor child and that she had fully participated in caring for the minor child. The plaintiff requested dissolution of the marriage, an order affirming her as a parent of the minor child, and orders regarding custody, parenting time and child support.

The defendant responded with a motion for summary disposition arguing that the plaintiff did not have standing, or the legal right, to seek custody of the minor child. The trial court granted the defendant's motion and dismissed the plaintiff's case. The Court of Appeals initially affirmed the trial court's decision on the basis that the plaintiff was not a "parent" as defined in the Michigan Child Custody Act and further finding the equitable parent doctrine could not apply because it would contradict Michigan's then-existing constitutional and statutory provisions defining marriage. The plaintiff then filed an application for leave to appeal to the Michigan Supreme Court which ordered the case held in abeyance pending the outcome of the Obergefell matter.

After the Obergefell decision was issued, the Michigan Supreme Court vacated the decision of the Court of Appeals and remanded the matter for reconsideration. Finding that the plaintiff's complaint adequately alleged facts that gave her standing to seek equitable parenthood, the Court of Appeals reversed the trial court's dismissal of the plaintiff's case and remanded the matter to the trial court to conduct an evidentiary hearing concerning the validity of the parties' alleged Canadian marriage and the applicability of the equitable parent doctrine.

As a published opinion, Stavkevich v. Milliron is a precedential decision which must be followed by all trial courts and the Court of Appeals in Michigan.

© 2019 Varnum LLP

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About this Author

Mark E Hills, Litigation lawyer, Varnum
Partner

Mark is a member of the firm's Litigation Practice Team, and chair of the Family Law Team, with more than 20 years' experience in federal and state court jury and non-jury trials, international, federal and state-level arbitrations, and facilitative mediations. Mark was invited to join the Litigation Counsel of America Society in 2011, an honor extended to less than one percent of all attorneys in America.

Mark is a knowledgeable and effective trial attorney for national, state and community banks, private equity holders, and receivers throughout Michigan, and has...

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