Carrie Pueblo v. Rachel Haas

• Court: Michigan Supreme Court
• Decided: July 24, 2023
• Docket: 164046
• Status: Published

Opinion

Michigan Supreme Court Lansing, Michigan

Syllabus Chief Justice: Justices: Elizabeth T. Clement Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden

This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis

PUEBLO v HAAS

Docket No. 164046. Argued April 4, 2023 (Calendar No. 3). Decided July 24, 2023.

Carrie Pueblo brought an action against her former domestic partner, Rachel Haas, in the Kalamazoo Circuit Court under the Child Custody Act (CCA), MCL 722.21 et seq., seeking joint custody and parenting time for a child whom defendant conceived through in vitro fertilization and gave birth to in 2008, during the parties’ relationship. Defendant moved for summary disposition under MCR 2.116(C)(5) and MCR 2.116(C)(8), asserting that because the parties had never married and plaintiff had no biological or adoptive relationship to the child, plaintiff lacked standing to sue and also failed to state a claim for which relief could be granted. Following a hearing, the trial court, Stephen D. Gorsalitz, J., granted the motion and dismissed the case without prejudice. After defendant moved for reconsideration, the trial court dismissed the action with prejudice. Plaintiff then filed her own motion for reconsideration, arguing that she had standing as a natural parent, despite the lack of genetic connection, following the Court of Appeals decision in LeFever v Matthews, 336 Mich App 651 (2021), which expanded the definition of “natural parent” to include unmarried women who gave birth as surrogates but shared no genetic connection with the children. Plaintiff also asserted that the trial court order violated her Fourteenth Amendment rights to due process and equal protection, as well as those of the child. Plaintiff further argued that any dismissal should have been without prejudice. The trial court denied reconsideration, distinguishing LeFever on the ground that plaintiff had not given birth to the child. Plaintiff appealed, reasserting her previous arguments and further asserting that the equitable- parent doctrine should extend to the parties’ relationship, which had been solemnized in a civil commitment ceremony when it was not yet legal in Michigan for same-sex partners to marry. The Court of Appeals, GADOLA, P.J., and SWARTZLE and CAMERON, JJ., rejected these arguments and affirmed the trial court in an unpublished per curiam opinion of the Court of Appeals, issued December 28, 2021 (Docket No. 357577). The Supreme Court granted plaintiff’s application for leave to appeal, asking whether and to what extent the equitable-parent doctrine should be extended to provide standing under the CCA to plaintiff and those similarly situated in light of Obergefell v Hodges, 576 US 644 (2015), which invalidated Michigan’s prohibitions on same-sex marriage. 510 Mich 936 (2022).

In an opinion by Justice CAVANAGH, joined by Chief Justice CLEMENT and Justices BERNSTEIN, WELCH, and BOLDEN, the Supreme Court held: A former member of a same-sex couple seeking custody of a child to whom they did not give birth and with whom they share no genetic connection is entitled to make their case for equitable parenthood and thus establish standing to bring an action under the CCA. To do so, the plaintiff must demonstrate by a preponderance of the evidence that the parties would have married before the child’s conception or birth but for Michigan’s unconstitutional marriage ban. When determining whether a plaintiff satisfies this standard, courts should consider the nondispositive factors set forth in In re Madrone, 271 Or App 116 (2015). The Court of Appeals judgment was reversed and the case remanded to the trial court to apply this threshold test. To the extent that Lake v Putnam, 316 Mich App 247 (2016), was inconsistent with the Court’s opinion, it was overruled.

1. Under the equitable-parent doctrine, a spouse who is not a biological parent has standing to seek custody of a child born or conceived during their marriage when (1) the would-be equitable parent and the child acknowledge the parental relationship or the biological or adoptive parent has cultivated the development of a relationship over a period of time, (2) the would-be equitable parent desires to have the rights afforded a parent, and (3) the would-be equitable parent is willing to pay child support. Before 2015, Michigan unconstitutionally prohibited same-sex couples from marrying and refused to recognize legal marriages performed in other jurisdictions. Consequently, a same-sex partner did not have the option to adopt their spouse’s child or to marry their pregnant partner and benefit from the marital presumption of parentage. Further, unmarried same-sex couples were not permitted to adopt through second-parent adoption. Obergefell rendered Michigan’s unconstitutional bar on same-sex marriage unenforceable, holding that the denial of the ability to marry was a denial of same-sex couples’ constitutional due-process and equal- protection rights. Obergefell noted generally the importance of the various benefits that the states have connected to marriage, referred to as the “constellation of benefits,” and specifically emphasized the harm that the unconstitutional prohibition on marriage caused the children of same-sex couples. Recognition of equitable parenthood is one of the “constellation of benefits” associated with marriage in Michigan, and, as a matter of equity and constitutional law, Michigan courts are compelled to treat same-sex couples equally. Accordingly, Obergefell demanded the extension of the equitable-parent doctrine to those who were unable to marry during their same- sex relationships because of discriminatory and unconstitutional Michigan laws but who developed de facto parent-child relationships with the children born or adopted by their same-sex partners during the time they would have otherwise been married. This extension served the underlying rationale of the equitable-parent doctrine, which considers the best interests of the child to be paramount, and it was consistent with recent developments in the law recognizing that federal and state law protects people from discrimination on the basis of sexual orientation. It was not necessary to overrule Van, which involved parties who chose not to legally marry despite their ability to do so. However, it was necessary to overrule Lake, which had declined to extend the equitable-parent doctrine to same-sex couples who had previously been unable to marry, to the extent it was inconsistent with the Court’s holding. Lake’s concern about retroactively and unilaterally creating a marriage relationship against the parties’ wishes was remedied by requiring the person seeking custody to show, by a preponderance of the evidence, that the parties would have married had they been legally permitted to do so in Michigan. In light of the conclusion that plaintiff may pursue standing as an equitable parent, her alternative claims were not addressed. 2. A would-be equitable parent has standing if they demonstrate by the preponderance of the evidence that the parties would have married before the child’s birth or conception but for the unconstitutional laws that prevented them from doing so. This approach is based on Madrone, which crafted a factual inquiry to be applied when extending the presumption of parentage in its artificial-insemination statute to same-sex partners of biological mothers. Madrone concluded that the proper focus was on whether the parties would have married but for the previous unconstitutional state prohibition on same-sex marriage, which involved a contemporaneous inquiry concerning the mutual intent of the parties. The relevant factors it concluded would support an inference that same-sex partners would have married but for the prior unconstitutional bar included whether the couple took advantage of other options giving legal recognition to their relationship, held each other out as or considered themselves to be spouses, had children during the relationship and shared childrearing responsibilities, held a commitment ceremony or otherwise exchanged vows of commitment, exchanged rings, shared a last name, commingled their assets and finances, made significant financial decisions together, sought to adopt any children either of them may have had before the relationship began, or attempted unsuccessfully to get married. The Supreme Court adopted this approach and held that in Michigan, if the intent to marry is disputed, a would-be equitable parent must prove by a preponderance of the evidence that the couple would have married based on their contemporaneous conduct, considering the illustrative but nondispositive and nonexhaustive factors set forth in Madrone. If that threshold test for standing is satisfied, the court may evaluate the equitable-parent factors to determine whether the would-be equitable parent has standing to seek custody and parenting time.

3. Plaintiff made a sufficient showing to survive summary disposition under MCR 2.116(C)(8) on standing grounds. In particular, plaintiff’s allegations that she cultivated the development of a relationship with the child over a period of time, desires to have parental rights, and is willing to pay child support are sufficient to advance her claim for equitable parenthood. Plaintiff also alleged facts entitling her to a threshold determination of whether the parties would have married but for Michigan’s unconstitutional bar on same-sex marriage.

Court of Appeals judgment reversed; case remanded to the trial court for further proceedings.

Justice BOLDEN, concurring, wrote separately to note that because many state laws relating to marriage, out-of-wedlock parenting, and reproductive technologies had been enacted without consideration of Obergefell, the Legislature should act to resolve the lingering puzzles that remained regarding how the current applicable statutory schemes could fit the practical realities of same-sex relationships with regard to parenting. In particular, she stated that, aside from the question whether the Legislature should address the equitable-parent doctrine, it should clarify ambiguities in the CCA, which says nothing about biology or marriage and contains an unclear definition of “natural parent.” She echoed former Justice KELLY’s observation in Van that, in custody disputes, the Legislature’s overriding concern has not been the preservation of the institution of marriage, but rather the best interests of the children, and she suggested that the Legislature consider amending the CCA for consistency with this priority in mind. She also suggested that the Legislature consider whether to enact a formal procedure to address situations like plaintiff’s. In sum, she urged the Legislature to answer the questions raised by this case regarding children born to same-sex couples by enacting a sufficient statutory scheme that would adequately reflect equal-protection and due-process considerations.

Justice ZAHRA, joined by Justice VIVIANO, dissenting, disagreed with the extension of the equitable-parent doctrine. He questioned the validity of the doctrine, expressed concern that its legally unsupported extension would result in far-reaching ramifications outside the child custody context, and did not believe it was an appropriate tool to provide plaintiff the relief she sought. He also questioned the advisability of the “but for” test set forth by the majority and worried that it would be applied too broadly. Finally, he emphasized that plaintiff’s remedy rested with the Legislature rather than the judiciary. For these reasons, he would have declined to disturb the lower courts’ decisions. Michigan Supreme Court Lansing, Michigan

OPINION Chief Justice: Justices: Elizabeth T. Clement Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden

FILED July 24, 2023

STATE OF MICHIGAN

SUPREME COURT

CARRIE PUEBLO,

Plaintiff-Appellant,

v No. 164046

RACHEL HAAS,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH

CAVANAGH, J. In this case, we determine that the courthouse doors will open to a former partner in

a same-sex relationship who was unconstitutionally prohibited from marrying before the

decision in Obergefell v Hodges, 576 US 644; 135 S Ct 2584; 192 L Ed 2d 609 (2015), to

seek custody of a child with whom the former partner shares no biological relationship. 1

1 In this context, a person who shares “no biological relationship” with a child is someone who neither birthed the child nor shares a genetic connection with the child by having contributed their reproductive material. While the decision in this case likely affects few, it is, nonetheless, important for what it

represents. Justice does not depend on family composition; all who petition for recognition

of their parental rights are entitled to equal treatment under the law. “[B]iological

relationships are not [the] exclusive determination of the existence of a family[.] . . . No

one would seriously dispute that a deeply loving and interdependent relationship between

an adult and a child in [their] care may exist even in the absence of blood relationship.”

Smith v Org of Foster Families for Equality & Reform, 431 US 816, 843-844; 97 S Ct

2094; 53 L Ed 2d 14 (1977).

Michigan has long recognized the “equitable-parent doctrine” as providing standing

to nonbiological fathers as parents when certain criteria are met. Atkinson v Atkinson, 160

Mich App 601; 408 NW2d 516 (1987). Because Michigan unconstitutionally prohibited

same-sex couples from marrying before Obergefell, we narrowly extend the equitable-

parent doctrine as a step toward righting the wrongs done by that unconstitutional

prohibition. A person seeking custody who demonstrates by a preponderance of the

evidence that the parties would have married before the child’s conception or birth but for

Michigan’s unconstitutional marriage ban is entitled to make their case for equitable

parenthood to seek custody. We reverse and remand to the trial court to apply the threshold

test for standing that we announce today.

I. FACTS AND PROCEDURAL BACKGROUND

Two women—plaintiff, Carrie Pueblo, and defendant, Rachel Haas—were in a

long-term committed relationship, or domestic partnership, from the early 2000s until the

early 2010s. During their relationship, the parties were unable to legally marry in

2 Michigan, which unconstitutionally prohibited same-sex marriage until 2015. See

Obergefell, 576 US 644. In their briefs and at oral argument, the parties acknowledged

that they participated in a private civil commitment ceremony in June 2007 that was

presided over by a priest and involved the exchange of rings and vows to take one another

as life partners. Later that year, they decided to use in vitro fertilization to bring a child

into the world. Haas conceived and bore the child, JPHP, in November 2008, and shares

the child’s biology. Pueblo has no biological connection to JPHP, whose last name is a

hyphenation of the parties’ last names. The parties never married, nor was Haas married

to another person at the time of JPHP’s conception or birth. Haas is the only parent listed

on the child’s birth certificate. Pueblo alleges that both parties acted as parents to JPHP

from birth, sharing custody and parenting time even after they separated in the early 2010s.

However, Pueblo alleges that Haas demanded that she cease contact with JPHP beginning

in 2017 and that Pueblo’s efforts to continue the parent-child relationship were

unsuccessful.

In 2020, Pueblo took a legal step toward reunification with JPHP by filing a custody

complaint under the Child Custody Act (CCA), MCL 722.21 et seq., seeking joint custody,

parenting time, and child support. Haas countered in her answer that Pueblo lacked

standing, that the parties never married, and that Pueblo has no biological or adoptive

relationship to JPHP. Subsequently, Haas moved for summary disposition on the basis that

Pueblo lacked standing under MCR 2.116(C)(5) and failed to state a claim under MCR

2.116(C)(8).

Following a hearing, the trial court granted the motion and dismissed the case

without prejudice. Upon Haas’s motion for reconsideration, the trial court dismissed the

3 action with prejudice. Pueblo then filed her own motion for reconsideration, arguing that

she had standing as a natural parent despite the lack of genetic connection following the

recent Court of Appeals decision in LeFever v Matthews, 336 Mich App 651; 971 NW2d

672 (2021). She also asserted that the trial court order violated her Fourteenth Amendment

rights to due process and equal protection without surviving heightened scrutiny and that

the minor child’s rights were likewise violated. Pueblo further argued that, even if

dismissal was warranted, the dismissal should have been without prejudice. The trial court

denied reconsideration, rejecting Pueblo’s arguments on both issues. As to the standing

issue, the trial court distinguished LeFever because Pueblo neither birthed the child nor

shares a biological or genetic connection.

Pueblo appealed in the Court of Appeals. Relevant to this appeal, Pueblo argued

that she had standing to seek custody for several reasons. First, that the equitable-parent

doctrine should extend to the parties’ equitable marriage. Second, that she was a “natural

parent” under the CCA and the interpretation of the term in the closely analogous LeFever

case. Finally, that her rights to equal protection and due process, as well as the child’s,

were violated by the trial court’s finding that a biological tie was necessary for standing.

The Court of Appeals disagreed, holding that Pueblo was not a parent under the CCA and

affirming the lower court’s dismissal. 2 Pueblo v Haas, unpublished per curiam opinion of

the Court of Appeals, issued December 28, 2021 (Docket No. 357577).

Pueblo then sought leave to appeal in this Court. We granted leave to address:

2 The Court of Appeals declined to address Pueblo’s argument that granting defendant’s reconsideration motion was an abuse of discretion on the ground that Pueblo had abandoned the issue, and Pueblo does not resurrect that argument here.

4 (1) whether, in light of Obergefell v Hodges, 576 US 644 (2015), the equitable parent doctrine should be extended to provide standing to persons such as the plaintiff, who, at the time of the parties’ same-sex relationship, was not permitted by Michigan law to legally marry the defendant, and if so, (2) what the parameters of that extension should be. [Pueblo v Haas, 510 Mich 936 (2022).]

II. STANDARD OF REVIEW

This case presents questions of law that we review de novo. Questions of statutory

interpretation and constitutional issues are reviewed de novo. Hunter v Hunter, 484 Mich

247, 257; 771 NW2d 694 (2009); LeFever, 336 Mich App at 661. Likewise, whether a

party has standing to seek custody is reviewed de novo. LeFever, 336 Mich App at 661.

A trial court’s decision on a motion for summary disposition is reviewed de novo. El-

Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). When

deciding a motion under MCR 2.116(C)(8), a trial court must accept all factual allegations

in the complaint as true and the motion may only be granted “when a claim is so clearly

unenforceable that no factual development could possibly justify recovery.” 3 El-Khalil,

504 Mich at 160. In child custody disputes, trial court orders and judgments are generally

entitled to deference on appeal. See MCL 722.28. But reversal is required where the trial

court made a “clear legal error on a major issue.” Id. “When a court incorrectly chooses,

3 Although Haas challenged Pueblo’s standing under MCR 2.116(C)(5), like the Court of Appeals, we note that standing is more appropriately challenged under MCR 2.116(C)(8) or (C)(10) and that we may review the issue under the appropriate subrule regardless of which subrule the trial court relied on to grant summary disposition. Pueblo, unpub op at 2 n 2. See also Mich Chiropractic Council v Comm’r of Office of Fin & Ins Servs, 475 Mich 363, 374 n 25; 716 NW2d 561 (2006), overruled on other grounds by Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349 (2010); Le Gassick v Univ of Mich Regents, 330 Mich App 487, 496 n 2; 948 NW2d 452 (2019).

5 interprets, or applies the law, it commits legal error that the appellate court is bound to

correct.” Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994).

III. LEGAL BACKGROUND

We are asked to determine whether Pueblo has standing to pursue this custody

action. Standing “generally refers to the right of a plaintiff initially to invoke the power of

a trial court to adjudicate a claimed injury.” Saugatuck Dunes Coastal Alliance v

Saugatuck Twp, 509 Mich 561, 583; 983 NW2d 798 (2022) (quotation marks and citation

omitted). The purpose of the doctrine is to ensure that a party’s interest in the issue is

“sufficient to ‘ensure sincere and vigorous advocacy.’ ” Lansing Sch Ed Ass’n v Lansing

Bd of Ed, 487 Mich 349, 355; 792 NW2d 686 (2010) (citation omitted). Further, in cases

involving private rights, a litigant must have “some real interest in the cause of action, or

a legal or equitable right, title, or interest in the subject matter of the controversy.” Bowie

v Arder, 441 Mich 23, 42; 490 NW2d 568 (1992) (quotation marks and citation omitted).

In child custody matters, “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 of the child.” Id. at 49.

Michigan’s CCA governs custody, parenting time, and child support issues for

minor children; it is the exclusive means to pursue child custody rights. MCL 722.24(1);

LeFever, 336 Mich App at 662. The CCA is “equitable in nature and shall be liberally

construed and applied to establish promptly the rights of the child and the rights and duties

of the parties involved.” MCL 722.26(1). The CCA provides the following parental

presumption:

6 If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence. [MCL 722.25(1).]

The CCA defines “parent” as “the natural or adoptive parent of a child.” MCL

722.22(i). The act does not define “natural parent.” A “third person” is “an individual

other than a parent.” MCL 722.22(k). The CCA says nothing about biology or marriage,

see Van v Zahorik, 460 Mich 320, 343, 346; 597 NW2d 15 (KELLY, J., dissenting), and its

definition of “parent” is circular. Nor has “natural parent” been clearly defined in caselaw.

In one case, the Court of Appeals said that the term “natural parent” under the CCA means

that the person is a parent related to the child by “blood” rather than by adoption. See

Stankevich v Milliron (On Remand), 313 Mich App 233, 236; 882 NW2d 194 (2015)

(Stankevich III). 4

More recently, the Court of Appeals included within the ambit of “natural parent” a

parent related to the child “by birth” or “through marriage,” regardless of whether there is

a genetic connection. LeFever, 336 Mich App at 651, 665-666. 5 The LeFever Court

concluded that the term “natural parent” was “elastic enough” to include an unmarried

woman who gave birth as a surrogate but whose eggs were not used and who shared no

4 This “related by blood” definition was advanced in Stankevich I, which was vacated by this Court. Stankevich v Milliron, unpublished per curiam opinion of the Court of Appeals, issued October 17, 2013 (Docket No. 310710), p 2; Stankevich v Milliron, 498 Mich 877 (2015) (Stankevich II). Although the definition was reiterated on remand, see Stankevich III, 313 Mich App at 236, it was inconsequential to the holding, see LeFever, 336 Mich App at 677 n 1 (GLEICHER, J., concurring). Stankevich III was not appealed. 5 LeFever was not appealed.

7 genetic connection with the twins she birthed. Id. at 666. Judge GLEICHER, concurring,

proposed an additional analysis, including the proposition that “[a] woman who gives birth

to a child is that child’s natural mother under the common law, and there is no reason to

look elsewhere for the meaning.” Id. at 677 (GLEICHER, J., concurring).

The CCA must be read in context not only with judicial decisions interpreting it but

also within the broad statutory framework of family law. “Under the doctrine [of in pari

materia], statutes that relate to the same subject or that share a common purpose should, if

possible, be read together to create a harmonious body of law.” People v Mazur, 497 Mich

302, 313; 872 NW2d 201 (2015), citing People v Harper, 479 Mich 599, 621; 739 NW2d

523 (2007). The Legislature has provided several explicit statutory avenues for those who

did not give birth to a child to establish parentage—through the marital presumption,

acknowledgment of parentage, paternity proceedings, the assisted-reproduction statute,

and adoption. See, respectively, MCL 722.1433(e); MCL 722.1003(1); MCL 722.711 et

seq.; MCL 333.2824(6); and MCL 710.24(1) and (2); see also MCL 710.51(6). 6

6 To the extent that these statutes use gendered language, MCL 8.3b instructs that “[e]very word importing the masculine gender only may extend and be applied to females as well as males.”

None of these avenues has been raised by Pueblo. For example, Pueblo did not raise a constitutional or statutory argument that the assisted-reproduction statute must be construed to confer standing. There may be merit to this argument. See In re Madrone, 271 Or App 116; 350 P3d 495 (2015) (applying Oregon’s presumption of parentage in assisted-reproduction statute to an unmarried same-sex partner where the statute violated Oregon’s constitution). Other avenues were simply not available to her. See MCL 710.24 (joint or second-parent adoption unavailable to unmarried couples).

Once parentage has been established, such as through an acknowledgment of parentage or the marital presumption, the Legislature has recognized that the best interests of the child may weigh more heavily than the lack of biological connection. MCL 722.1443(4) (stating that in a revocation of paternity action, “[a] court may refuse to enter

8 In addition, Michigan courts have held that a person with no biological relationship

to a child may establish parentage and assert custodial rights as a parent through the

equitable-parent doctrine. The doctrine was first recognized in 1987 in Atkinson, 160 Mich

App 601. In that case, the plaintiff filed for divorce and sought custody rights over the

child born during the marriage. Id. at 604. The defendant countered that that the plaintiff

was not the child’s biological father and as such had no parental rights. Id. at 604-605.

After blood tests excluded the plaintiff as the biological father, the trial court denied him

custody and parenting time. Id.

The Court of Appeals adopted the plaintiff’s request to recognize the equitable-

parent doctrine, which was grounded on several footings. First, the panel grounded the

doctrine in the equitable nature of and liberal construction afforded to the CCA, MCL

722.26. Id. at 609. Second, the panel reasoned that the doctrine is a logical extension of

the notion that not only responsibilities, but also rights, flow from deeming nonbiological

fathers to be parents who can be ordered to pay child support, citing Johnson v Johnson,

93 Mich App 415; 286 NW2d 886 (1979). Atkinson, 160 Mich App at 609-610. In

Johnson, a husband was estopped from disclaiming parenthood of a child born in wedlock

where he represented himself as a parent for over nine years from the child’s birth.

Johnson, 93 Mich App at 420. Thus, it makes sense that a person who is not a biological

parent may be considered one under the law under certain circumstances where they desire

to be a parent and are willing to bear parental rights and responsibilities. See Atkinson, 160

an order setting aside a paternity determination, revoking an acknowledgment of parentage, determining that a genetic father is not a child’s father, or determining that a child is born out of wedlock if the court finds evidence that the order would not be in the best interests of the child”).

9 Mich App at 610. Third, the panel relied on the analogous doctrine of equitable adoption

in intestate succession, which it noted has long been recognized by caselaw, Wright v

Wright, 99 Mich 170 (1984), and was later codified in former MCL 700.111 (replaced in

2000 by the Estates and Protected Individuals Code, MCL 700.1101 et seq.). Atkinson,

160 Mich App at 611. Finally, the panel emphasized that all custody determinations rest

on the paramount consideration given to the best interests of the child, citing Hackley v

Hackley, 426 Mich 582, 597 (1986), and it was thus unlikely that denying custody and

parenting time to an involved de facto parent would be in a child’s best interests, see id.

As the Atkinson Court explained, the equitable-parent doctrine recognizes that

a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support. [Atkinson, 160 Mich App at 608-609.]

A little over a decade later, we declined to extend the parameters of the equitable-

parent doctrine beyond custody sought over children born or conceived of a marriage. Van

v Zahorik, 460 Mich 320, 330-331; 597 NW2d 15 (1999). Van involved an unmarried

opposite-sex relationship during which the parties cohabitated and the defendant, Mary

Zahorik, bore two children, but the plaintiff, Scott Van, was excluded as the biological

father. Id. at 323. This Court rejected Van’s attempt to seek parental rights as an equitable

parent, reasoning that the CCA does not recognize a theory that extends the doctrine

beyond marriage, that doing so would implicate public-policy issues appropriately

addressed by the Legislature, and that the strongest rationales underlying the doctrine—

10 reinforcement of the importance of marriage and legitimacy—were not served by its

extension. Id. at 324, 331-333. The dissenting justices, however, would not have made

the availability of the equitable-parent doctrine contingent on marriage. See id. at 338-342

(BRICKLEY, J., joined by M. F. CAVANAGH, J., dissenting); id. at 342-347 (KELLY, J.,

dissenting).

Before and in the wake of Obergefell, our courts fielded custody disputes over

children raised by same-sex partners who were previously unable to legally marry in

Michigan. Obergefell recognized that the right to marry is a fundamental right and that

under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the

right and liberty to do so cannot be denied to same-sex couples. Obergefell, 576 US 644.

The decision rendered Michigan’s constitutional and statutory prohibitions against same-

sex marriage unenforceable. MCL 551.1; MCL 551.272; Const 1963, art 1, § 25. Among

the bases for extending the right to marry was that marriage safeguards children and

families and draws meaning from the related rights of childrearing, procreation, and

education. Obergefell, 576 US at 646. The Obergefell Court noted that, absent the right

to marry, the children of parents in same-sex relationships are “relegated through no fault

of their own to a more difficult and uncertain family life.” Id. at 668. The availability of

marriage for same-sex couples thus affords the permanency and stability important to their

children’s best interests. See id. Following that decision, the Supreme Court of the United

States decided Pavan v Smith, 582 US 563, 566; 137 S Ct 2075; 198 L Ed 2d 636 (2017),

holding that a state could not refuse to list a married same-sex parent on a birth certificate

because that was among the “ ‘constellation of benefits . . . linked to marriage’ ”

recognized by Obergefell. Id. at 566, quoting Obergefell, 576 US at 670.

11 The doctrine of equitable parenthood was extended to same-sex partners who legally

married elsewhere before Obergefell in Stankevich III, 313 Mich App at 240-242. In

Stankevich, the plaintiff alleged that the same-sex couple had legally married in Canada

before the child’s birth and that the defendant bore a child from artificial insemination

during the marriage. We vacated the Court of Appeals’ conclusion that the plaintiff had

no standing and remanded the case for reconsideration in light of Obergefell. Stankevich

v Milliron, 498 Mich 877 (2015) (Stankevich II). On remand, the Court of Appeals

concluded that when a same-sex couple marries in a jurisdiction recognizing the validity

of same-sex marriages, the spouse of the biological parent has standing to seek relief under

the equitable-parent doctrine. Stankevich III, 313 Mich App at 240, 242. The panel

remanded for an evidentiary hearing to determine the validity of the alleged Canadian

marriage and whether plaintiff could prove that she was an equitable parent. Id. at 242.

Notably, the Court of Appeals held that plaintiff’s allegations afforded her standing to seek

equitable-parent status even though pre-Obergefell, if a same-sex couple was married in

another jurisdiction, their marriage would not be recognized under MCL 551.1 7 and MCL

551.272. 8

The Court of Appeals declined to extend the equitable-parent doctrine outside the

context of marriage in another custody case involving a same-sex couple, Lake v Putnam,

7 “Marriage is inherently a unique relationship between a man and a woman. . . . A marriage contracted between individuals of the same sex is invalid in this state.” MCL 551.1. 8 “This state recognizes marriage as inherently a unique relationship between a man and a woman . . . and therefore a marriage that is not between a man and a woman is invalid in this state regardless of whether the marriage is contracted according to the laws of another jurisdiction.” MCL 551.272.

12 316 Mich App 247; 894 NW2d 62 (2016). In Lake, the parties were likewise in a long-

term relationship during which the defendant, Kerri Putnam, bore a child from artificial

insemination. Id. at 249. The parties never married, and they separated before Obergefell

was decided. Id. After the separation, Putnam refused to permit the plaintiff, Michelle

Lake, to see the child, so Lake filed a custody action. Id. The trial court denied Putnam’s

motion for summary disposition, which argued that Lake lacked standing as a third party,

and ordered parenting time for Lake. Id. The Court of Appeals granted leave and reversed

for entry of summary disposition to Putnam. The majority reasoned:

While plaintiff claims that she satisfies all requirements under the equitable-parent doctrine, she ignores one crucial, and dispositive, requirement for the equitable-parent doctrine to apply—the child must be born in wedlock. Van, 460 Mich at 330 (stating that the equitable-parent doctrine applies only “to a child born or conceived during the marriage”). The child at issue in this case was not born or conceived during a marriage. In fact, it is undisputed that the parties were never married. Therefore, the equitable-parent doctrine does not apply. Had the parties married in another jurisdiction, for example, our conclusion might be different. See, e.g., Stankevich v Milliron (On Remand), 313 Mich App 233, 240-241 (2015). While we acknowledge that the issue presented in this case is complex, we simply do not believe it is within courts’ discretion to, at the request of one party and in light of the United States Supreme Court decision in Obergefell . . . , retroactively transform an unmarried couple’s past relationship into marriage for the purpose of custody proceedings. Stated differently, it is, in our view, improper for a court to impose, several years later, a marriage on a same-sex unmarried couple simply because one party desires that we do so. [Lake, 316 Mich App at 252-253.]

The Lake panel acknowledged Lake’s request to follow an Oklahoma decision that

had applied that state’s in loco parentis doctrine to unmarried same-sex couples with

children but held that it could not do the same. First, it explained that, unlike Michigan’s

equitable-parent doctrine, Oklahoma’s in loco parentis status “does not only apply to

13 married couples; rather, it appears to apply to anyone ‘who has assumed the status and

obligations of a parent without a formal adoption.’ ” Id. at 253-254, quoting Workman v

Workman, 498 P2d 1384, 1386 (1972). Second, the panel observed that in Van, 460 Mich

at 330-331, this Court “rejected the argument that holding oneself out as a child’s parent,

alone, is sufficient to be considered that child’s parent under the equitable-parent doctrine.”

Lake, 316 Mich App at 254. Third, the panel believed it beyond the appropriate role of the

judiciary to retroactively impose the legal ramifications of marriage onto unmarried

couples several years after their relationship ended. Id. The majority also rejected Lake’s

argument that the child’s constitutional rights were violated, holding that Lake did not have

standing to assert them. Id. at 256.

Judge SHAPIRO’s concurrence found that the facts at bar did not “fully test the scope

of Obergefell’s application to Michigan’s equitable-parent doctrine” but that a different

result might be warranted under different facts. Lake, 316 Mich App at 257, 259 (SHAPIRO,

J., concurring). First, the concurrence rejected Lake’s argument that equitable-parent rights

arise from the best interests of the child rather than the relationship status of the parties,

observing that the Court of Appeals remained bound by Van’s rejection of the extension of

the doctrine beyond marriage until this Court, or the Legislature, reviewed the issue. Id. at

259. However, the concurrence found merit in Lake’s legal argument that Obergefell

“demands extension of the equitable-parent doctrine.” Id. at 260. But because Lake did

not present any evidence in the trial court evincing the parties’ intent to marry, the

concurrence concluded that relief was not warranted in this particular case. Id. at 263.

Lake was not appealed in this Court. We declined to review the equitable-parent

doctrine’s application to unmarried same-sex couples whose relationships ended before

14 Obergefell by denying leave in two analogous cases that same year: Mabry v Mabry, 499

Mich 997 (2016), and Kolailat v McKennett, 499 Mich 996 (2016). Then-Justice

MCCORMACK, joined by Justice BERNSTEIN, dissented, urging the Court to grant leave to

address whether Obergefell compelled extension of the equitable-parent doctrine to

custody disputes between same-sex couples who were unconstitutionally prohibited from

marrying. Mabry, 499 Mich at 997 (MCCORMACK, J., dissenting); Kolailat, 499 Mich at

496 (MCCORMACK, J., dissenting).

Two years later in Sheardown v Guastella, 324 Mich App 251; 920 NW2d 172

(2018), the Court of Appeals addressed the constitutionality of the definition of “parent”

in MCL 722.22(i) as applied to a plaintiff in an unmarried same-sex relationship whose

partner bore a child using a sperm donor during their pre-Obergefell relationship. The

Court determined that the definition did not violate equal protection because it applies

equally to same-sex and opposite-sex unmarried couples. Id. at 261; see also Stankevich

III, 313 Mich App at 238 (noting that its application of the definition of “parent” under the

CCA did not run afoul of Obergefell because it applies equally to same-sex and opposite-

sex married couples). Notably, the Court determined that Obergefell’s principles did not

apply where the plaintiff was not married and had “disavowed any interest . . . in going

back in time in an attempt to determine whether the parties would have been married had

they had the legal option to do so prior to Obergefell.” Id. at 258.

In sum, in crafting the doctrine, the Atkinson Court relied on the liberal and equitable

nature of the CCA, the principle that deeming nonbiological fathers to be parents entitles

them to parental rights, the importance of the best interests of the child, and the existing

doctrine of equitable adoption. In Van, this Court declined to extend the doctrine beyond

15 the institution of marriage in deference to legislative policy preferences favoring marriage.

The Court of Appeals recently rejected a constitutional challenge to the CCA’s statutory

language in Sheardown. However, since Atkinson, the CCA’s definition of “parent” has

been expanded through the equitable-parent doctrine to include parents who are neither

adoptive parents nor parents by blood. While courts have been willing to apply the

equitable-parent doctrine to same-sex couples, as the Court of Appeals did in Stankevich

III, 313 Mich App at 240, 242, the Court of Appeals and this Court have previously refused

to extend the doctrine to couples who were not married. See Van, 460 Mich at 320; Lake,

316 Mich App at 252-253.

IV. ANALYSIS

A. WHETHER THE EQUITABLE-PARENT DOCTRINE SHOULD BE EXTENDED

Pueblo did not carry the child, nor did she contribute genetic material. Yet she

asserts standing to seek custody as a putative parent who, before 2015, was in a marriage-

like relationship with another woman who birthed a child through in vitro fertilization.

“[T]he CCA does not specifically address the unique question presented in this case. The

United States Constitution fills this gap.” LeFever, 336 Mich App at 682 (GLEICHER, J.,

concurring). Pueblo argues that she has standing to seek custody under the equitable-parent

doctrine. We agree that Pueblo should have the opportunity to prove that she is entitled to

assert her rights as an equitable parent. 9

9 Although the dissent questions “the soundness of the equitable-parent doctrine itself,” the parties have not asked us to reconsider the doctrine.

16 A quick recap of the doctrine in its current state: A spouse 10 who is not a biological

parent has standing to seek custody of a child born or conceived during their marriage when

(1) the would-be equitable parent and the child acknowledge the parental relationship or

the biological or adoptive parent has cultivated the development of a relationship over a

period of time, (2) the would-be equitable parent desires to have the rights afforded a

parent, and (3) the would-be equitable parent is willing to pay child support. Mabry, 499

Mich at 998 (MCCORMACK, J., dissenting); see also Atkinson, 160 Mich App at 608-609.

The Court of Appeals rejected Pueblo’s argument that she was a parent, relying as

it was bound to do on the closely analogous decision in Lake, 316 Mich App at 252. But

before 2015, Michigan unconstitutionally prohibited same-sex couples from marrying and

refused to recognize legal marriages performed in other jurisdictions. See MCL 551.1;

MCL 551.271; Const 1963, art 1, § 25. Consequently, a same-sex partner did not have the

option to adopt their spouse’s child or to marry their pregnant partner and benefit from the

marital presumption of parentage. See, e.g., MCL 710.24; MCL 722.1433(e); MCL

333.2824. Further, unmarried same-sex couples were not permitted to adopt through

second-parent adoption. MCL 710.24. Obergefell rendered Michigan’s unconstitutional

10 It bears noting that the equitable-parent doctrine may be invoked by any married person, though it was initially framed within a husband’s bid for custody of nonbiological children of a marriage. See Atkinson, 160 Mich App at 608-609; Stankevich III, 313 Mich App at 233. Several reasons support this outcome. The doctrine itself is concerned with protecting close de facto parent-child relationships despite the absence of biological connection—the would-be equitable parent’s sex is irrelevant. Further, the Equal Protection Clause requires that all persons similarly situated be treated alike under the law. Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 486 Mich 311, 318; 783 NW2d 695 (2010). Married women in same-sex marriages are similarly situated to married men in opposite-sex marriages who would be able to pursue custody for children born to or adopted by their spouses through the equitable-parent doctrine. Therefore, women should not be treated differently from men.

17 bar on same-sex marriage unenforceable, holding that denying same-sex couples the

opportunity to marry was an unconstitutional deprivation of equal protection and due

process. Obergefell, 576 US at 675-676. But this legal development came too late for

those same-sex couples whose marriage-like relationships had already ended and who had

not married in another jurisdiction.

Obergefell made clear that the denial of the ability to marry was a denial of same-

sex couples’ constitutional rights. “The essence of the Equal Protection Clauses is that the

government not treat persons differently on account of certain, largely innate,

characteristics that do not justify disparate treatment.” Crego v Coleman, 463 Mich 248,

258; 615 NW2d 218 (2000). Obergefell emphasized generally the importance of the

various benefits that the states have connected to marriage, referred to as the “constellation

of benefits.” Obergefell, 576 US at 670 (including “taxation; inheritance and property

rights; rules of intestate succession; spousal privilege in the law of evidence; hospital

access; medical decisionmaking authority; adoption rights; the rights and benefits of

survivors; birth and death certificates; professional ethics rules; campaign finance

restrictions; workers’ compensation benefits; health insurance; and child custody, support,

and visitation rules”). Further, Obergefell specifically placed much importance on the

effect of the unconstitutional prohibition on marriage on the children of same-sex couples:

Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. [Obergefell, 576 US at 668.]

18 Recognition of equitable parenthood is one of the “constellation of benefits”

associated with marriage in Michigan. Obergefell, 576 US at 670. Because the parties are

the same sex, they were barred from marrying in Michigan, where they resided during the

relationship. Pueblo was subject to dissimilar treatment because she could not marry her

same-sex partner. Unlike opposite-sex couples, same-sex couples did not have the option

to obtain parental rights through marriage. We can right some of this wrong by invoking

our equity jurisprudence, which “mold[s] its decrees to do justice amid all the vicissitudes

and intricacies of life.” Spoon-Shacket Co v Oakland Co, 356 Mich 151, 163; 97 NW2d

25 (1959) (citation omitted).

As a matter of equity and constitutional law, we are compelled to treat same-sex

couples equally. Same-sex couples have the constitutional right to marry and to all the

attendant benefits of marriage. Id.; see also Pavan, 582 US at 567. Withholding the benefit

of the equitable-parent doctrine from couples who were previously unconstitutionally

prohibited from marrying would perpetuate the harms identified in Obergefell: that denying

same-sex couples the same legal treatment in marriage and all the benefits afforded to

opposite-sex couples demeans them, stigmatizes their children and families, and teaches

society that they are inferior. Obergefell, 476 US at 665, 670-671. Given the ruling in

Obergefell, we cannot justifiably deny same-sex couples—who would have married before

the arrival of a child but for unlawful prohibitions—the privilege of invoking the equitable-

parent doctrine because of their sexual orientation. Accordingly, “Obergefell demands

extension of the equitable-parent doctrine.” 11 Lake, 316 Mich App at 260 (SHAPIRO, J.,

11 Pueblo did not raise an argument grounded in Michigan’s Due Process and Equal Protection Clauses.

19 concurring). Therefore, we narrowly extend the equitable-parent doctrine to Pueblo and

other similarly situated persons who were unable to marry during their same-sex

relationships because of discriminatory and unconstitutional Michigan laws but who

nonetheless developed de facto parent-child relationships with the children born or adopted

by their same-sex partners during the time they would have otherwise been married.

And the underlying rationale of the equitable-parent doctrine is served by this

extension. The CCA is equitable in nature and must be construed liberally. MCL

722.26(1). The best interests of the child, with whom the would-be equitable parent

fostered a relationship, are paramount. The children of same-sex partners bear no lesser

rights to the enjoyment and support of two parents than children born to married opposite-

sex parents. Many same-sex couples likely would have chosen to marry before taking on

joint responsibility for a child had they been they legally permitted to do so. But for the

inability of these couples to legally marry because of this state’s unconstitutional

prohibitions, the equitable-parent doctrine would be available to them.

This extension is also consistent with recent developments in the law recognizing

that federal and state law protects people from discrimination on the basis of sexual

orientation. The Supreme Court of the United States held in Bostock v Clayton Co, 590

US ___; 140 S Ct 1731, 1741; 207 L Ed 2d 218 (2020), that discrimination based on sexual

orientation or gender identity is encompassed by Title VII’s prohibition of discrimination

“because of such individual’s . . . sex.” We subsequently held in Rouch World v Dep’t of

Civil Rights, 510 Mich 398; 987 NW2d 501 (2022), that our state’s antidiscrimination law

protects against discrimination based on sexual orientation. And the Legislature recently

20 codified that decision. MCL 37.2102, as amended by 2023 PA 6 (adding “sexual

orientation” and “gender identity or expression” as protected categories).

We need not overrule our decision in Van to extend the equitable-parent doctrine as

we do today because that case is clearly distinguishable. 12 Van requires that a child be born

in wedlock for the equitable-parent doctrine to apply, centering the state’s public policy of

marriage in its reasoning. Van, 460 Mich at 330. In particular, Van found it inappropriate

to extend the benefits of marriage to those who deliberately eschewed marriage. Id. at 332.

But a necessary assumption of the Van case was the parties’ decision not to legally marry

despite their ability to do so. See id. Same-sex partners in this state did not have that

choice pre-Obergefell. Stated differently, same-sex partners in a pre-Obergefell world

neither had access to nor neglected a legal pathway to marriage as did the parties in Van.

“When the parents themselves did not choose not to marry, but instead had that choice

made for them by our state’s laws, and the parents otherwise demonstrated the same

commitment and legitimacy as married parents, their children should not be barred from

the potential benefits of our common-law rule.” Mabry, 499 Mich at 999-1000

(MCCORMACK, J., dissenting).

Further, Van saw extension of the doctrine to unmarried couples as undermining the

public policy in favor of marriage. Van, 460 Mich at 332. No such justification exists

when carving out a narrow, backward-looking extension. Instead, denying this marital

benefit to those in Pueblo’s position “does nothing to support opposite-sex parenting, but

rather merely serves to endanger children of same-sex parents by denying them ‘ “the

12 Importantly, Pueblo did not ask us to overrule Van.

21 immeasurable advantages that flow from the assurance of a stable family structure . . . .” ’ ”

Golinski v US Office of Personnel Mgt, 824 F Supp 2d 968, 992 (ND Cal, 2012), quoting

Goodridge v Dep’t of Pub Health, 440 Mass 309, 335; 798 NE2d 941 (2003) (citation

omitted). We note that Van’s requirement that a child be born during marriage remains

applicable to opposite-sex couples generally and same-sex couples to whom a child was

born post-Obergefell.

We do, however, overrule Lake v Putnam to the extent it is inconsistent with our

holding today. The Court of Appeals in Lake justified the denial of the extension of the

equitable-parent doctrine as an untenable retroactive transformation of the same-sex

couple’s relationship into a marriage. Lake, 316 Mich App at 253. The Court viewed

expanding the doctrine as outside its discretion and lacking a solid rationale. Id. But Lake’s

concern about retroactively and unilaterally creating a marriage relationship against the

parties’ wishes is remedied by requiring the person seeking custody to show, by a

preponderance of the evidence, that the parties would have married had they been legally

permitted to do so in Michigan. Moreover, ensuring that constitutional rights are

safeguarded, and that further harms are not perpetrated, is our duty. “A major function of

the judiciary is to guarantee the rights promised in our Constitution.” Bauserman v

Unemployment Ins Agency, 509 Mich 673, 693; 983 NW2d 855 (2022), quoting 2 Official

Record, Constitutional Convention 1961, p 2196 (cleaned up). And for the reasons above,

we believe that extension is justified as a matter of equity and constitutional law.

Haas suggests that the parties’ failure to avail themselves of marriage in another

jurisdiction during the parties’ relationship is determinative. However, imposing such a

per se rule would be inconsistent with Michigan’s contemporaneous unconstitutional

22 prohibition on the recognition of such a marriage, which presumably also would have

precluded application of the equitable-parent doctrine. See Mabry, 499 Mich at 998

(MCCORMACK, J., dissenting). In light of this unconstitutional bar that limited the exercise

of any marriage rights they might obtain in another jurisdiction, even a same-sex couple

residing in Michigan that otherwise would marry might decline to do so. Michigan law

imposed the barrier to marriage for same-sex couples, and that Michigan law was struck

down; that legal marriage might have been available in another state or country is not

dispositive. Pueblo’s problem is that she was prohibited from marrying or having a

marriage recognized here.

Haas and the dissent express concern that expanding the equitable-parent doctrine

will create a legal morass in other areas of the law, including divorce and tort. We disagree.

We take a narrow approach based on the facts before us, the existing equitable-parent

doctrine which remains binding law, and the Supreme Court’s recognition of marriage

equality in Obergefell. We do not decide whether successful invocation of the equitable-

parent doctrine to gain child custody standing will implicate other rights and liabilities

associated with marriage. Haas also contends that her constitutional rights will be violated

by imposing upon her a marriage that she did not desire. However, whether the parties

mutually desired to marry but could not is a fact-specific inquiry best addressed on remand

where the trial court can evaluate evidence and judge credibility. Because we decide that

Pueblo may pursue standing as an equitable parent, we do not address her alternative

claims.

23 B. THE PARAMETERS OF THE EXTENSION

Having decided that Obergefell and principles of equity require us to extend the

equitable-parent doctrine, we outline the threshold test for standing for Pueblo and other

would-be equitable parents in her position. We hold that such a would-be equitable parent

has standing if they demonstrate by the preponderance of the evidence that the parties

would have married before the child’s birth or conception but did not because

unconstitutional laws prevented them from doing so. See Lake, 316 Mich App at 262-263

(SHAPIRO, J., concurring).

To assist in creating the test, we find compelling the discussion in the Oregon case

In re Madrone, 271 Or App 116, 127-129; 350 P3d 495 (2015); see also Lake, 316 Mich

App at 262 (SHAPIRO, J., concurring) (noting that he would adopt Oregon’s approach). In

Madrone, the Oregon Court of Appeals crafted the factual inquiry to be applied when

extending the presumption of parentage in its artificial-insemination statute to same-sex

partners of biological mothers—in other words, the court considered how to apply the

remedy for an analogous constitutional violation previously wrought by an Oregon statute.

Madrone, 271 Or App at 123. In Michigan, marriage was unavailable to same-sex couples

before 2015. Like the Madrone Court, we believe that whether the choice to marry was

denied to a particular same-sex couple is key. See id. at 128. It follows that the equitable-

parent doctrine should not apply to a same-sex couple who would have chosen commitment

but not marriage, just as the doctrine does not apply to an opposite-sex couple who chose

not to marry. See id.; see also Van, 460 Mich App at 330, 332. Therefore, the analysis

should focus on whether the parties would have married but for the unconstitutional

prohibition.

24 While the Court of Appeals in Lake was concerned about imposing a retroactive

marriage “simply because one party desires that we do so,” Lake, 316 Mich App at 253,

and the dissent echoes this discomfort, this concern is “fully addressed by a factual inquiry

into the facts as they existed at the time the child was born or conceived,” id. at 260

(SHAPIRO, J., concurring). This is a contemporaneous inquiry concerning the mutual intent

of the parties. While, as Haas and the dissent emphasize, there may be evidentiary

challenges including those caused by the passage of time and one party’s denial of an intent

to marry, that is not a compelling reason to refuse to extend the doctrine.

While this hypothetical inquiry may have practical difficulties, we find instructive

the Madrone Court’s discussion of relevant factors that support an inference that same-sex

partners would have married but for the prior unconstitutional bar:

Whether a particular couple would have chosen to be married, at a particular point in time, is a question of fact. In some cases, the answer to that question will be obvious and not in dispute. . . . In other cases, the answer will be less clear. A number of factors may be relevant to the fact finder’s determination. A couple’s decision to take advantage of other options giving legal recognition to their relationship—such as entering into a registered domestic partnership or marriage when those choices become available—may be particularly significant. Other factors include whether the parties held each other out as spouses; considered themselves to be spouses (legal purposes aside); had children during the relationship and shared childrearing responsibilities; held a commitment ceremony or otherwise exchanged vows of commitment; exchanged rings; shared a last name; commingled their assets and finances; made significant financial decisions together; sought to adopt any children either of them may have had before the relationship began; or attempted unsuccessfully to get married. We hasten to emphasize that the above list is not exhaustive. Nor is any particular factor dispositive . . . , given that couples who choose not to marry still may do many of those things. Instead, we view the factors as tending to support, but not compelling, an inference that a same-sex couple would have

25 married had that choice been available.[13] [In re Madrone, 271 Or App at 128-129.]

We adopt this discussion to guide application of the factual inquiry. If the intent to

marry is disputed, a would-be equitable parent must prove by a preponderance of the

evidence that the couple would have married based on their contemporaneous conduct, in

consideration of the illustrative but nondispositive factors outlined above. If that threshold

test for standing is satisfied, the court may evaluate the equitable-parent factors to

determine whether the would-be equitable parent has standing to seek custody and

parenting time.

V. APPLICATION

Here, the parties did not legally marry in Michigan or another jurisdiction. 14 Pueblo

has made a sufficient showing in the pleadings to survive summary disposition under MCR

13 Madrone also noted that evidence that one or both partners rejected the institution of marriage is not necessarily determinative and should be weighed in light of what each partner’s views would have been had marriage not been banned. Madrone, 217 Or App at 129. 14 Had the parties legally married before the child’s birth, Pueblo would be entitled to the marital presumption that she is a parent. See MCL 722.1433(e) (stating that a “man . . . is presumed to be the child’s father by virtue of his marriage to the child’s mother at the time of the child’s conception or birth”); MCL 333.2824 (stating that “the name of the husband at the time of conception or, if none, the husband at birth shall be registered as the father of the child”); MCL 552.29 (stating that “the legitimacy of all children begotten before the commencement of any action [for divorce] shall be presumed”); see also Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977) (holding that there is a strong but rebuttable presumption that a husband is a child’s father); MCL 8.3b (“Every word importing the masculine gender only may extend and be applied to females as well as males.”).

Further, the assisted-reproduction statute provides a presumption of parentage to the nonbirth parent for children born to married parents through assisted reproduction. MCL 333.2824(6); see also LeFever, 336 Mich App at 679 (GLEICHER, J., concurring) (“A

26 2.116(C)(8) on standing grounds. In a motion under MCR 2.116(C)(8), we accept all

factual allegations as true and construe the facts in the light most favorable to the

nonmovant. El-Khalil, 504 Mich at 160. The parties agreed to use in vitro fertilization,

and the child was born during their relationship. Both parties parented the child from birth,

sharing custody and parenting time, including for some time after their breakup. Pueblo

desires to facilitate a close and continuing parent-child relationship with JPHP. And

Pueblo requested custody, parenting time, and calculation of child support. Therefore,

Pueblo’s allegations that she (1) cultivated the development of a relationship with the child

over a period of time, (2) desires to have parental rights, and (3) is willing to pay child

support are sufficient to advance her claim for equitable parenthood. See Atkinson, 160

Mich App at 608-609. Pueblo has also alleged facts entitling her to a threshold

determination on whether the parties would have married but for Michigan’s

unconstitutional bar on same-sex marriage under the inquiry set forth above.

VI. CONCLUSION

Today we announce a limited extension of the equitable-parent doctrine for

individuals in same-sex couples who were unconstitutionally prevented from marrying

married woman in a same-sex relationship should have precisely the same right” as a husband on equal footing.).

A “father” under the Acknowledgment of Parentage Act, MCL 722.1001 et seq., is defined as “the man who signs an acknowledgment of parentage of a child,” MCL 722.1002(d). We see no impediment to any person establishing parental rights by signing an acknowledgment of parentage. See also In re Daniels Estate, 301 Mich App 450, 456; 837 NW2d 1 (2013) (“Nothing in the Acknowledgement [sic] of Parentage Act requires that the man completing the acknowledgement form actually be the child’s biological father.”); MCL 8.3b.

27 before Obergefell. On remand, the trial court must conduct an evidentiary hearing on

whether Pueblo has standing as an equitable parent, applying the threshold test that we

announce today. Pueblo must demonstrate by a preponderance of the evidence that she

and defendant would have chosen to marry before the child’s birth but for Michigan’s

unconstitutional exclusion of same-sex couples from the right to marry. Should she do so,

she has the right to a best-interest evaluation for custody and parenting time. We reverse

the Court of Appeals’ judgment and remand to the trial court for further proceedings

consistent with this opinion.

Megan K. Cavanagh Elizabeth T. Clement Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden

28 STATE OF MICHIGAN

BOLDEN, J. (concurring). I concur with the Court’s opinion in this matter. I write separately to draw attention

to a subsidiary argument raised—but not fully developed—by plaintiff that I believe merits

further attention from the Legislature. Given that many of our state laws around marriage,

out-of-wedlock parenting, and reproductive technologies were enacted without

consideration of Obergefell v Hodges, 576 US 644; 135 S Ct 2584; 192 L Ed 2d 609 (2015),

there appear to be many lingering puzzles remaining about how the laws as written can fit

the practical realities of same-sex relationships.

Marriage, of course, offers a presumption that both spouses are the natural parents

of the child for many legal purposes. See, e.g., MCL 700.2114(1)(a) (“If a child is born or

conceived during a marriage, both spouses are presumed to be the natural parents of the

child for purposes of intestate succession.”). And had the parties had the legal avenue of

marriage available to them and chosen to pursue it, this case might have been very

different—even unnecessary. However, statutory issues remain because state law does not

yet fully contemplate the interaction between same-sex relationships and parenting. The Legislature should give clarity to families and consider these lingering questions

surrounding how same-sex couples resolve custodial disputes if the relationship is

terminated.

The United States Supreme Court has held that the relationship between a parent

and child is a fundamental right and “that the relationship between parent and child is

constitutionally protected.” Quilloin v Walcott, 434 US 246, 255; 98 S Ct 549; 54 L Ed 2d

511 (1978). In accordance with this holding, both Congress and the Michigan Legislature

have since codified protections for parental rights through the Respect for Marriage Act,

PL 117-228, 136 Stat 2305, and the Child Custody Act (CCA), MCL 722.21 et seq.,

respectively. The Court of Appeals has described the CCA as “ ‘a comprehensive statutory

scheme’ ” governing child support and parenting time and offering “the exclusive means

of pursuing” rights to a child’s custody. LeFever v Matthews, 336 Mich App 651, 662,

674, 681 n 2; 971 NW2d 672 (2021), quoting Van v Zahorik, 460 Mich 320, 327; 597

NW2d 15 (1999). The case before us demonstrates the limitations of the statute’s present

form and underscores its potential to violate constitutional principles of parental rights.

I. BACKGROUND

Under the CCA, a parent is defined as the “natural or adoptive parent of a child.”

MCL 722.22(i). The CCA does not expressly define “natural parent,” but the Court of

Appeals has held that it requires such a parent to be related to the child by “blood” rather

than adoption. See, e.g., Stankevich v Milliron (On Remand), 313 Mich App 233, 236; 882

NW2d 194 (2015) (applying the part of the definition of “natural” from Random House

Webster’s College Dictionary (2005) indicating that it means “ ‘related by blood rather

2 than by adoption’ ”). In LeFever, the Court of Appeals concluded that the statutory term

“natural parent” was “elastic enough” to allow a more expansive interpretation to include

a parent who gestated and birthed the children without genetic link as a “natural parent”

under the CCA. LeFever, 336 Mich App at 662. 1

Besides “blood” or birth, the CCA offers a third avenue by which a person may be

deemed a “natural parent”—Michigan’s equitable-parent doctrine. Under this doctrine, a

nonbiological father of a child born or conceived during a marriage may be considered the

natural father of that child where:

(1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support. [Van, 460 Mich at 330 (quotation marks and citation omitted).]

In this case, the Court of Appeals held that plaintiff was not a “natural parent” by

blood, by birth, or through the equitable-parent doctrine. Pueblo v Haas, unpublished per

curiam opinion of the Court of Appeals, issued December 28, 2021 (Docket No. 357577).

The panel likened plaintiff’s case to Lake v Putnam, 316 Mich App 247, 255; 894 NW2d

62 (2016). In Lake, the plaintiff and the defendant were in a romantic relationship that

lasted more than a decade. Id. at 249. During that relationship, the plaintiff gave birth to

a child conceived through a medical procedure. The couple raised the child together until

their relationship terminated. The plaintiff then sued the defendant, seeking parenting time

1 The defendant in LeFever also argued that a narrow interpretation of “natural parent” under the CCA would violate her constitutional rights to substantive due process and equal protection. The LeFever Court, however, did not reach the constitutional arguments because the decision was based on a statutory analysis. Id. at 659.

3 with the child and asserting that she satisfied all the requirements of the equitable-parent

doctrine because she had equally participated in raising the child while the couple was

together. Id. The defendant unsuccessfully moved for summary disposition on the ground

that the plaintiff lacked standing. On appeal, the Court of Appeals reversed, relying on

Van, 460 Mich at 330, explaining that the plaintiff ignored one critical—and dispositive—

requirement; namely, “the child must be born in wedlock.” Lake, 316 Mich App at 252.

The Court of Appeals in this case was bound by Lake, which presented a parallel

set of facts. As in Lake, plaintiff and defendant were in a romantic relationship for about

a decade through which the parties never married, and defendant gave birth to a child

conceived through a medical procedure. Pueblo, unpub op at 1. Plaintiff sued under the

CCA seeking joint legal and physical custody of the child. Id. Defendant successfully

moved for summary disposition asserting, among other things, that plaintiff (like the

plaintiff in Lake) lacked standing to seek custody of the child. Id. at 2. Plaintiff appealed

after unsuccessfully seeking reconsideration. Id.

The Court of Appeals followed Lake and affirmed. The panel rejected plaintiff’s

argument that she has standing under the “ ‘elastic definition’ ” of natural parent as adopted

in LeFever. Id. at 5. The panel distinguished LeFever by noting that the defendant in

LeFever had given birth to the children, thereby creating an equivalent of “the physical

connection of being a parent by virtue of genetic relationship,” which plaintiff lacks. Id.

at 6. The Court of Appeals also discounted the fact that same-sex couples could not legally

marry at the time of the child’s conception and birth, given that Lake declined to expand

the scope of the equitable-parent doctrine by imposing the status of marriage upon a couple

4 who had never married. Id. In the panel’s view, because this point of law has not changed,

defendant could not achieve the status of natural parent under the equitable-parent doctrine.

After Obergefell held that depriving same-sex couples of the right to marry is a

violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment,

the Court of Appeals extended the equitable-parent doctrine to same-sex couples who had

legally married outside Michigan. See Stankevich (On Remand), 313 Mich App at 240.

The Lake Court, however, declined to extend standing under the doctrine to parties who

had separated pre-Obergefell, because the Lake majority believed that such an extension

of the doctrine would be the equivalent of imposing a retroactive marriage on the parties

and it was not willing to do so upon the unilateral request of one party. Lake, 316 Mich

App at 253.

But considering these questions through a constitutional lens might have brought

different results. Under the Due Process and Equal Protection Clauses of the Fourteenth

Amendment, the door to parental rights for unmarried, same-sex parents remains open.

The analysis in Obergefell centered on four principles that demonstrate why constitutional

marriage guarantees must apply with equal force to same-sex couples. 2 These principles

stress that confusion surrounding the status of the children of same-sex couples is a source

of social instability and suffering, that the right to marriage “safeguards children and

2 These principles are (1) the right of personal autonomy to make choices, (2) the special and committed nature of marriage and family, (3) safeguarding children and families, thus drawing meaning from related rights of childrearing, procreation, and education, and (4) that marriage is a keystone of our social order. Obergefell, 576 US at 665-669. The application of these principles to same-sex couples stems from the Court’s recognition that “same-sex couples have the same right as opposite-sex couples to enjoy intimate association.” Id. at 667.

5 families,” and that this right draws meaning from the related rights of procreation and

childrearing. 3 Obergefell, 576 US at 667.

II. ANALYSIS

A. EXTENDING THE EQUITABLE-PARENT DOCTRINE AS A BASIS FOR STANDING

In his Lake concurrence, Judge SHAPIRO proposed a solution to the equitable-parent

doctrine’s disparate treatment of opposite-sex and same-sex parents inspired by the Oregon

Court of Appeals’ decision in In re Madrone, 271 Or App 116, 128-129; 350 P3d 495

(2015). Lake, 316 Mich App at 261 (SHAPIRO, J., concurring). In Madrone, the question

was how to determine whether an unmarried same-sex couple is similarly situated to a

married opposite-sex couple for purposes of the state’s artificial-insemination statute. The

court reasoned that because the distinction between married and unmarried heterosexual

couples is that married couples have chosen to be married while the unmarried couples

have chosen not to be, choice would be the key to determining whether the statute applied

to a same-sex couple. Madrone, 271 Or App at 128. Accordingly, given that same-sex

couples in Oregon had also been statutorily deprived of the choice to marry before

Obergefell, the governing inquiry would be whether a same-sex couple “would have chosen

to marry before the child’s birth had they been permitted to.” Id. The court held that this

inquiry presents a question of fact to be determined on a case-by-case basis where fact-

finders may consider varying factors including whether the couple registered as domestic

partners, held each other out as spouses, shared parenting responsibilities during the

3 More starkly, the Court stated that “[t]he marriage laws at issue here . . . harm and humiliate the children of same-sex couples.” Id. at 668.

6 relationship, held a commitment ceremony, wore or exchanged rings, and shared finances.

Id. at 128-129. These factors could be considered to support an inference that a same-sex

couple would have married had that choice been available. Id. at 129.

Judge SHAPIRO suggested adopting this approach in Michigan and would have held

“that a party is entitled to seek equitable parental rights arising out of a same-sex nonmarital

relationship when a preponderance of the evidence shows that but for the ban on same-sex

marriage in the parties’ state of residency, they would have married before the birth of the

child.” Lake, 316 Mich App at 262-263 (SHAPIRO, J., concurring) (emphasis added).

Under this expansion of the doctrine, if standing is contested, as it is in the instant matter,

an evidentiary hearing would generally be required to determine by a preponderance of the

evidence whether the nonbiological parent and the biological parent would have been

married but for the ban on same-sex marriage. Id. at 263.

Today, the majority adopts this approach and offers a limited extension of the

equitable-parent doctrine for partners in same-sex relationships who were

unconstitutionally prevented from marrying before Obergefell. On remand, plaintiff must

show by a preponderance of the evidence that she and defendant would have chosen to

marry before the child’s birth but for Michigan’s unconstitutional ban on same-sex

marriage. I agree with this approach.

B. EXPANDING STANDING UNDER THE EQUITABLE-PARENT DOCTRINE

The Court of Appeals developed the equitable-parent doctrine to permit married,

nonbiological parents to secure parental rights. See Atkinson v Atkinson, 160 Mich App

601; 408 NW2d 516 (1987). However, before this decision, this Court refused to apply the

7 equitable-parent doctrine to an unwed nonbiological parent holding that “the extension of

substantive rights regarding child custody implicates significant public policy issues and is

within the province of the Legislature, not the judiciary.” Van, 460 Mich at 331. The

doctrine has since been applied in varying circumstances but has never been enacted by

statute.

Though the equitable-parent doctrine has never been enacted into statutory law, the

Michigan Legislature has signaled elsewhere that marriage is not central to parenthood. In

addition to allowing unmarried biological fathers to establish paternity under the Genetic

Parentage Act, MCL 722.1461 et seq., the Legislature allows unmarried men to pursue

parental rights under the Revocation of Paternity Act, MCL 722.1431 et seq. 4 These

statutes signal that the Legislature has considered the practical realities that relationships

may result in children but not marriage.

Additionally, in Lipnevicius v Lipnevicius, unpublished per curiam opinion of the

Court of Appeals, issued August 26, 2010 (Docket No. 289073), the Court of Appeals

addressed the equitable-parent doctrine in a case involving a legal father seeking custody

against the claims of the child’s mother and the biological father. The panel noted that the

equitable-parent doctrine can encroach on what has traditionally been the Legislature’s

arena and stated that, in its view, the “equitable parent doctrine irreconcilably conflicts

4 The Revocation of Paternity Act defines an “alleged father” as “a man who by his actions could have fathered the child” in question. MCL 722.1433(c). Under the act, an “alleged father” may pursue an action to deprive a “presumed father”—defined as “a man who is presumed to be the child’s father by virtue of his marriage to the child’s mother at the time of the child’s conception or birth,” MCL 722.1433(e)—of parental rights.

8 with statutes intended to occupy the entire field of child custody regulation.” Id. at 3. 5 The

proposition that the equitable-parent doctrine is sufficient to ground standing has not been

universally accepted. This case shows exactly why it may be necessary for the Legislature

to address these issues.

That said, aside from the question whether the Legislature should address the

equitable-parent doctrine, the CCA has ambiguities that should be clarified. As the

majority points out, the CCA says nothing about biology or marriage and its definition of

“natural parent” is unclear. As Justice KELLY pointed out in her dissent in Van, in custody

disputes “the Legislature has decreed that the overriding concern is not the ultimate

preservation by the state of the institution of marriage. It is, instead, the attainment of the

best interests of the children.” Van, 460 Mich at 346 (KELLY, J., dissenting). Therefore,

the Legislature should consider how to amend the CCA for consistency, so that the best

interests of a child are of utmost concern and given due consideration when situations like

these arise.

The Legislature should also consider whether to enact a formal procedure to address

situations like plaintiff’s. For example, Michigan law provides that a “child conceived by

a married woman with consent of her husband following the utilization of assisted

reproductive technology is considered to be the legitimate child of the husband and wife.”

MCL 333.2824(6). But there is no explicit right extended for a female spouse who consents

5 Further, Michigan stands nearly alone in its continued commitment to the equitable-parent doctrine. See Titchenal v Dexter, 166 Vt 373, 384-385; 693 A2d 682 (1997) (noting that “[v]ery few jurisdictions have embraced the equitable-parent doctrine adopted in Atkinson”).

9 to her partner’s conceiving a child using assisted reproductive technology. 6 “The essence

of the Equal Protection Clauses is that the government not treat persons differently on

account of certain, largely innate, characteristics that do not justify disparate treatment.”

Crego v Coleman, 463 Mich 248, 258, 615 NW2d 218 (2000). Because our reproductive-

assistance technology cannot—at least currently—produce a child who is genetically

related to both same-sex parents, a nonbiological parent of a child born to a same-sex

couple that was unconstitutionally barred from marriage pre-Obergefell may be precluded

from standing to seek a custodial relationship with that child under the CCA.

In Troxel v Granville, 530 US 57, 120 S Ct 2054; 147 L Ed 2d 39 (2000), the United

States Supreme Court affirmed the fundamental right of parents to make certain decisions

for their children. Troxel summarizes the long history of the fundamental liberty interest

parents have in the “care, custody, and control of their children[.]” Id. at 65 (opinion of

O’Connor, J.). Troxel also highlights that the “ ‘liberty’ ” protected by the Due Process

Clause of the Fourteenth Amendment includes the right of parents to “ ‘establish a home

and bring up children’ . . . .” Id., quoting Meyer v Nebraska, 262 US 390, 399; 43 S Ct

625; 67 L Ed 1042 (1923). And “ ‘those who nurture [a child] and direct his destiny have

the right, coupled with the high duty, to recognize and prepare him for additional

obligations.’ ” Troxel, 530 US at 65 (opinion of O’Connor, J.), quoting Pierce v Society of

Sisters, 268 US 510, 535; 45 S Ct 571; 69 L Ed 1070 (1925) (emphasis added).

6 While the rules of construction would extend this right to a married female spouse, MCL 8.3b, MCL 333.2824(6) does not do so explicitly and is therefore confusing to same-sex couples trying to navigate the statute.

10 Plaintiff argues that she was involved in nurturing the child even before the child

was conceived. Plaintiff alleges that she and defendant decided to use in vitro fertilization

to bring a child into the world together. Plaintiff further alleges that both parties acted as

parents to the child from birth, sharing custody and parenting time even after their

separation. Plaintiff alleges that this relationship continued until defendant demanded that

she cease contact with the child, at which point plaintiff sought a legal avenue to continue

to parent the child. Absent our extension of the equitable-parent doctrine in this case,

plaintiff may not have had standing to do so.

III. CONCLUSION

I concur fully with the majority’s opinion. However, I write separately to state that

the Legislature should give clarity for children born to same-sex couples to ensure a

sufficient statutory scheme that reflects adequate equal-protection and due-process

considerations. This case raises important questions. The Legislature should answer them.

Kyra H. Bolden

11 STATE OF MICHIGAN

ZAHRA, J. (dissenting). Today, a majority of this Court holds that “[a] person seeking custody who

demonstrates by a preponderance of the evidence that the parties would have married

before the child’s conception or birth but for Michigan’s unconstitutional marriage ban is

entitled to make their case for equitable parenthood to seek custody.” While I am

sympathetic toward plaintiff’s circumstances, extending the equitable-parent doctrine, a

marriage-based doctrine that rests on shaky legal grounds, is inappropriate and ill-suited to

provide plaintiff the relief she seeks. The majority’s extension of the doctrine, and its

creation of an accompanying “but for” test, is unsupported by the law and likely will result

in far-reaching ramifications outside the child custody context. Because I would not extend

the equitable-parent doctrine and because I believe that the Legislature, not the judiciary, should be making these policy-based decisions, I dissent. 1 I would decline to disturb the

opinions of the lower courts in this case.

I. STANDARD OF REVIEW

Whether a party has standing is a legal question that is reviewed de novo. 2 Whether

a party has a sufficient basis to assert parental rights under the equitable-parent doctrine is

also a question of law that is reviewed de novo. 3

The Child Custody Act (CCA), MCL 722.21 et seq., grants limited standing to seek

custody or parenting time to persons who are not legal parents.

If a child custody dispute is between the parents, between agencies, or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is shown by clear and convincing evidence.[4]

“Parent” under the CCA “means the natural or adoptive parent of a child.” 5 A “third

person” is “an individual other than a parent.” 6 A “natural parent” includes a parent related

1 I note that this Court has denied leave to appeal on this issue twice before: in Mabry v Mabry, 499 Mich 997 (2016), and Kolailat v McKennett, 499 Mich 996 (2016). The only factor that has changed since is the composition of the Court. 2 Manuel v Gill, 481 Mich 637, 642-643; 753 NW2d 48 (2008). 3 Lake v Putnam, 316 Mich App 247, 250; 894 NW2d 62 (2016). 4 MCL 722.25(1). 5 MCL 722.22(i). 6 MCL 722.22(k).

2 to the child “by birth,” as opposed to “by adoption” or “through marriage,” regardless of

genetic connection. 7 Under these definitions, plaintiff is not a “parent,” and she is therefore

not provided any parental rights by statute. 8 Plaintiff nonetheless argues that she has

standing to bring a suit for custody under Michigan’s equitable-parent doctrine.

Under the equitable-parent doctrine, set forth by the Court of Appeals in Atkinson v

Atkinson 9 and repeated by this Court in Van v Zahorik, 10

“a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.”

“Once it is determined that a party is an equitable parent, that party becomes endowed with

both the rights and responsibilities of a parent.” 11

7 LeFever v Matthews, 336 Mich App 651, 661, 665-667; 971 NW2d 672 (2021). 8 Contrary to plaintiff’s argument, LeFever is inapplicable in this case. There, the Court of Appeals reversed the trial court’s ruling that the birth mother was not a “natural parent” under the CCA because she lacked a genetic connection to the children. In so holding, the Court of Appeals relied on dictionary definitions to reason that the term “ ‘natural parent’ is elastic enough to include defendant, who, although she has no genetic connection to the twins, is related to them by the process of birthing them rather than through marriage.” LeFever, 336 Mich App at 666. Given that plaintiff here is not the birth mother and also lacks a genetic connection to the child, LeFever does not provide her with standing under the CCA. 9 Atkinson v Atkinson, 160 Mich App 601, 608-609; 408 NW2d 516 (1987). 10 Van v Zahorik, 460 Mich 320, 330; 597 NW2d 15 (1999). 11 York v Morofsky, 225 Mich App 333, 337; 571 NW2d 524 (1997).

3 Plaintiff quite clearly does not satisfy one of the requirements of this doctrine: the

child at issue was not born or conceived during a marriage. It is undisputed that the parties

were never married. Consequently, the equitable-parent doctrine, by its own terms, is

inapplicable.

A majority of this Court now creates a potential exception to this marriage

requirement for those similarly situated to plaintiff. Specifically, the majority reasons that

Obergefell v Hodges 12 “made clear that the denial of the ability to marry was a denial of

same sex couples’ constitutional rights” and concludes that “[r]ecognition of equitable

parenthood is one of the ‘constellation of benefits’ associated with marriage in Michigan.”

The majority opinion thus holds that, “[a]s a matter of equity and constitutional law, we

are compelled to treat same-sex couples equally” and that, as the concurring opinion stated

in Lake v Putnam, “ ‘Obergefell demands extension of the equitable-parent doctrine.’ ”13

I disagree with the majority’s decision to extend the equitable-parent doctrine under these

circumstances, and I strongly disagree with the majority’s conclusion that Obergefell

compels this result. Perhaps plaintiff is entitled to a remedy via some vehicle, but the

equitable-parent doctrine is quite simply the wrong one.

The equitable-parent doctrine is a judicially crafted doctrine based entirely on the

sanctity of marriage. This Court’s Van opinion addressing the doctrine repeatedly

emphasized that it is premised on a marriage relationship, stating that the policy

justifications backing the doctrine “can provide no justification for, and in fact are

12 Obergefell v Hodges, 576 US 644; 135 S Ct 2584; 192 L Ed 2d 609 (2015). 13 Quoting Lake, 316 Mich App at 260 (SHAPIRO, J., concurring).

4 antithetical to, the extension of the doctrine outside the context of marriage.” 14 The

majority today relies on Obergefell to extend the doctrine beyond the confines of marriage.

But it is curious to rely on Obergefell to circumvent Van’s marriage requirement when

Obergefell itself was based on the sanctity of marriage. Moreover, in Obergefell, the

Supreme Court of the United States did not compel states to recognize all same-sex

relationships predating that decision. “Obergefell did not grant same-sex couples anything

more than the right to have states recognize their marriage (not an insignificant right, no

doubt) and to treat those marriages the same as ones between heterosexuals.” 15 “[I]t did

not directly address the rights of same-sex couples who entered into some other

arrangement or agreement, regardless of whether it took the form of an informal

understanding or something more formal, such as a civil union or domestic partnership.” 16

I therefore do not read Obergefell as compelling an extension of our unique state doctrine

14 Van, 460 Mich at 333. 15 Sheardown v Guastella, 324 Mich App 251, 262; 920 NW2d 172 (2018). In Sheardown, the Court of Appeals distinguished the case from others decided post-Obergefell where “the parties had been married (either in their state or another) and were seeking to obtain a benefit of marriage that was granted to heterosexual married couples.” Id. at 263. The panel said that “when a party who comes before the court is not a part of a marital relationship, . . . he or she is not entitled to the ‘constellation of benefits’ referred to in Obergefell.” Id. See also Hawkins v Grese, 68 Va App 462, 476-477; 809 SE2d 441 (2018) (“In sum, the entire basis of the holding of Obergefell is the significance and importance of marriage as an institution that should not be withheld from same-sex couples. Barring procreation or adoption, pre-Obergefell, different-sex marriages did not automatically result in the spouses becoming legal parents of each other’s children and the analysis of the Obergefell majority opinion does not compel a different conclusion with respect to same-sex marriages, far less unmarried couples of any sexual orientation.”) (formatting altered). 16 Philip Morris USA, Inc v Rintoul, 342 So 3d 656, 666 (Fla App, 2022) (citations omitted).

5 pertaining to parenthood. Instead, the majority actually extends Obergefell to, in turn,

extend the equitable-parent doctrine, and it does so without adequately explaining why this

extension is constitutionally required. 17

More fundamentally, I question the soundness of the equitable-parent doctrine itself.

As the Family Law Section of the State Bar of Michigan highlighted in its amicus brief,

the equitable-parent doctrine is a judicially constructed concept that has not been adopted

by the Legislature since its inception in 1987. Instead of codifying the doctrine, the

Legislature has maintained a comprehensive statutory scheme that includes targeted third-

party custody provisions. In addition to addressing child custody disputes between parents

and between a parent and state agency, the CCA specifically addresses the rights of certain

other third parties, e.g., legal guardians and grandparents. 18 Yet the CCA does not

recognize equitable parenthood. I question whether the equitable-parent doctrine, which

is premised on equitable considerations, should at all supplant or conflict with the CCA’s

statutory scheme, which is seemingly intended to occupy the field of child custody

17 See People v Mathews, 505 Mich 1114, 1125 (2020) (VIVIANO, J., dissenting) (“Of course, Supreme Court caselaw is binding and must be faithfully applied. Abela v Gen Motors Corp, 469 Mich 603, 606[; 677 NW2d 325] (2004). But if a fair reading of the precedent does not resolve the issue we face, we have the power and the responsibility to decide the issue for ourselves. We are under no obligation to extend the scope of a precedent to cover the matter at hand . . . .”). 18 See, e.g., MCL 722.26b (standing provisions addressing guardians and limited guardians); MCL 722.26c (limited third-person custody standing and jurisdiction provisions); MCL 722.27b (grandparenting-time standing provisions).

6 regulation. 19 On this point, I share the following concerns raised by the Court of Appeals

in Lipnevicius v Lipnevicius: 20

[We] note that the continuing existence of the equitable parent doctrine necessitated a lengthy, multifaceted analysis of an otherwise simple and straightforward case. In our view, the equitable parent doctrine irreconcilably conflicts with statutes intended to occupy the entire field of child custody regulation. The governing laws, enacted by our Legislature, compel a far more direct end to this litigation.

The circuit court’s ruling that [the child at issue] was born out of wedlock disestablished defendant’s paternity of the child, rendering defendant a “third person” under the [CCA], MCL 722.22(j). Pursuant to MCL 722.26c(1), defendant lacked standing to bring an action for custody. These directly applicable statutes chart the way to a simple affirmance of the circuit court’s denial of defendant’s motion for summary disposition. Instead, the equitable parent doctrine resuscitates a claim otherwise unrecognized in the statutory framework governing child custody matters. Because this doctrine clashes with the well-established principle that “the public policy issues related to child custody disputes are to be resolved by the Legislature, not the judiciary,” Van, 460 Mich at 327, it has no place in Michigan’s jurisprudence.

* * *

Moreover, neither the Child Custody Act nor the Paternity Act contemplates the notion of an “equitable” parent. The Legislature simply has not bestowed parental prerogatives on persons whose status falls outside MCL 722.22(h). Absent the equitable parent doctrine introduced in Atkinson, defendant would have no legally cognizable interest in custody of [the child at issue]. “Very few jurisdictions have embraced the equitable- parent doctrine adopted in Atkinson . . . .” Titchenal v Dexter, 166 Vt 373, 384-385; 693 A2d 682 (1997). The Connecticut Supreme Court explained as

19 See Van, 460 Mich at 330; LeFever, 336 Mich App at 662 (“The CCA governs custody, parenting time, and child support issues for minor children in Michigan, and it is the exclusive means of pursuing child custody rights.”). 20 Lipnevicius v Lipnevicius, unpublished per curiam opinion of the Court of Appeals, issued August 26, 2010 (Docket No. 289073), pp 3-5.

7 follows one rationale for other jurisdictions’ rejection of the equitable parent doctrine:

[E]ven if we were to conclude that our statutes left room for a redefinition of parentage, we are not persuaded that it would be wise to employ the equitable parent doctrine in that fashion. It is true that the doctrine has considerable emotional appeal, because it permits a court, in a particularly compelling case, to conclude that, despite the lack of biological or adoptive ties to the child, the deserving adult nonetheless may be determined to be the child’s parent. This appeal may be enhanced in a given case because the best interests of the child, if determined irrespective of the otherwise invalid claim of parentage, may point in that direction. That doctrine, however, would lack the procedural and substantive safeguards provided to the natural parents and the child by the adoption statutes. In addition, the equitable parent doctrine, which necessarily requires an ad hoc, case-by-case determination of parentage after the facts of the case have been determined, would eliminate the significant degree of certainty regarding who is and who is not a child’s parent that our jurisprudence supplies. [Doe v Doe, 244 Conn 403, 444 n 46; 710 A2d 1297 (1998), overruled in part on other grounds, In re Joshua S, 260 Conn 182, 796 A2d 1141 (2002).]

While the [Michigan] Supreme Court has apparently reserved this question for another day, the continuing viability of the equitable parent doctrine merits prompt and careful evaluation. In [Hunter v Hunter, 484 Mich 247, 251, 261, 271-275; 771 NW2d 694 (2009)], our Supreme Court overruled Mason v Simmons, 267 Mich App 188; 704 NW2d 104 (2005), a case similarly premised in part on equitable considerations, instead of a governing statute. This Court had held in Mason “that unfit parents have the burden ‘to show, by a preponderance of the evidence, that a change in the established custodial environment with the guardian was in the child’s best interests.’ ” Hunter, 484 Mich at 272, quoting Mason, 267 Mich App at 207. The Supreme Court criticized that “Mason and its predecessors created this new standard out of thin air.” Id. The equitable parent doctrine suffers from the same intrinsic infirmities as Mason’s groundless injection of unfitness considerations into the parental presumption contained in MCL 722.25(1). As did the fit parent requirement adopted in Mason, the equitable parent doctrine plainly contravenes the statutory scheme governing child custody. For this reason, it should be overruled.

8 The Lipnevicius panel’s general concerns about the equitable-parent doctrine are

well-taken. Indeed, the majority in Van seemed to have similar concerns. While Van did

apply the doctrine, the majority “[q]uestion[ed] whether it was proper for the judiciary, as

opposed to the Legislature, to adopt this doctrine,” but left the issue for another day because

that case did not involve a married couple and therefore did not “squarely raise the issue

whether equitable parenthood was appropriately adopted as a common-law

doctrine . . . .” 21 I echo the sentiment expressed by this Court in that case: “In the context

of a subject matter fraught with public policy implications and the Legislature’s occupation

of the field of child custody with the promulgation of the Child Custody Act, the judiciary

is not the proper entity to create new rights or extend theories to reach new situations. The

creation and extension of rights relating to child custody matters is clearly the province of

the Legislature, not the judiciary.” 22 In short, I am not convinced that the equitable-parent

doctrine is legally sound, and I would decline to extend it today.

Putting aside this threshold disagreement, I also question the majority’s new “but

for” test that is to be applied as a precursor to application of the equitable-parent doctrine.

The majority holds that “a would-be equitable parent has standing if they demonstrate by

the preponderance of the evidence that the parties would have married before the child’s

birth or conception but did not because unconstitutional laws prevented them from doing

so.” I tend to agree with the Court of Appeals in Lake that

we simply do not believe it is within courts’ discretion to, at the request of one party and in light of the United States Supreme Court’s decision in

21 Van, 460 Mich at 335 n 6. 22 Id. at 330.

9 Obergefell, retroactively transform an unmarried couple’s past relationship into marriage for the purpose of custody proceedings. Stated differently, it is, in our view, improper for a court to impose, several years later, a marriage on a same-sex unmarried couple simply because one party desires that we do so.[23]

I am uncomfortable with retroactively recognizing a marriage-equivalent relationship. And

I do not follow the majority’s assertion that these concerns are “remedied” by the creation

of its but-for test, which undeniably will operate to go back in time to label certain

relationships a “marriage” for purposes of the equitable-parent doctrine. Moreover, I

question the functionality of this but-for test. The test requires courts to speculate as to

whether a same-sex couple would have chosen to get married had they possessed the

opportunity to do so. Courts will be required to dive into all public and private aspects of

a now-defunct relationship to hypothesize whether the couple would have chosen to marry.

This is an especially difficult inquiry where litigation will undoubtedly be complicated by

facts no longer discoverable and where, as here, one party to the couple adamantly denies

that they would have married. I am unsure that a court is even capable of finding with

confidence that the only reason a same-sex couple did not marry, pre-Obergefell, was

because they legally could not do so.

Apart from the practical complications of this test, I am also concerned about the

broader ramifications of its creation. While the majority appears confident that its

expansion of the equitable-parent doctrine and accompanying but-for test will remain

limited to the child custody context and will not “create a legal morass in other areas of the

law,” I am not so sure. Defendant astutely reasons that a similar type of “but for” argument

23 Lake, 316 Mich App at 253 (opinion of the Court) (citation omitted).

10 is likely to be advanced in nearly every area of the law to create avenues of redress for

individuals, or classes of individuals, for whom prior iterations of the law did not provide

relief, irrespective of whether the law was valid and constitutional and subsequently

changed or whether the law was flawed and unconstitutional and successfully challenged.

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. 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. In short, adoption of today’s test might not be a narrow carveout at all,

but could instead inspire similar challenges in other areas that will prevent finality in the

law. I highlight these concerns not because I am necessarily opposed to change in these

areas of the law, but because they underscore the significance of the majority’s holding and

because I believe that such matters of policy are for the Legislature to decide.

Similar concerns seemed to motivate the majority in Van. There, the Court quoted

the Illinois Supreme Court in Hewitt v Hewitt, 24 noting that it “thoughtfully addressed the

propriety of the judiciary weighing the equities in claims between cohabitants”:

“There are major public policy questions involved in determining whether, under what circumstances, and to what extent it is desirable to accord some type of legal status to claims arising from such relationships. . . . In the event of death shall the survivor have the status of a surviving spouse for purposes of inheritance, wrongful death actions, workmen’s compensation, etc.? And still more importantly: what of the children born of 24 Hewitt v Hewitt, 77 Ill 2d 49; 394 NE2d 1204 (1979).

11 such relationships? What are their support and inheritance rights and by what standards are custody questions resolved? What of the sociological and psychological effects upon them of that type of environment? Does not the recognition of legally enforceable property and custody rights emanating from nonmarital cohabitation in practical effect equate with the legalization of common law marriage . . . ?”[25]

Based in part on these concerns, this Court in Van said that “because the requested

extension of the equitable parent doctrine would affect the state’s public policy in favor of

marriage, the Legislature is clearly the appropriate entity to consider this issue.” 26 I agree

with this general sentiment that the judiciary should not be making these policy-based

decisions. Instead, “[t]he creation and extension of rights relating to child custody matters

is clearly the province of the Legislature, not the judiciary.” 27

For these reasons, I would decline to extend the equitable-parent doctrine as a

potential avenue of relief in this case. Perhaps there were better arguments to be made, but

plaintiff has not meaningfully grappled with any constitutional analysis. To the contrary,

I found plaintiff’s brief to be unhelpful in resolving the important legal issues before us. I

decline to dissect constitutional issues for her. I again emphasize that the Legislature

constitutes the most appropriate forum for resolving the policy issues presented in this case.

As defendant herself states, the Legislature might want to reconsider the definition of

“parent” under the CCA and reexamine the bases upon which a third party or third person,

unrelated by marriage, might initiate a custody complaint under MCL 722.26c. But

because I do not believe that extending the equitable-parent doctrine is the proper vehicle

25 Van, 460 Mich at 332-333, quoting Hewitt, 77 Ill 2d at 58. 26 Van, 460 Mich at 333. 27 Id. at 330.

12 through which to provide plaintiff the relief she seeks, and because this is the remedy that

plaintiff sought in this Court, I would decline to intervene in this case.

I disagree with this Court’s extension of the equitable-parent doctrine. I question

the validity of the doctrine and do not believe it is an appropriate tool to provide plaintiff

the relief she seeks. Furthermore, I question the advisability of the “but for” test set forth

by the majority and worry that it will be applied too broadly. Plaintiff’s remedy rests with

the Legislature rather than the judiciary. For these reasons, I would decline to disturb the

lower courts’ decisions. I respectfully dissent.

Brian K. Zahra David F. Viviano