PUEBLO v HAAS
Docket No. 164046
Michigan Supreme Court
Decided July 24, 2023
511 Mich. 345
Argued April 4, 2023 (Calendar No. 3).
Chief Justice: Elizabeth T. Clement
Justices: 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 prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions: Kathryn L. Loomis
Carrie Pueblo brought an action against her former domestic partner, Rachel Haas, in the Kalamazoo Circuit Court under the Child Custody Act (CCA),
In an opinion by Justice CAVANAGH, joined by Chief Justice CLEMENT and Justices BERNSTEIN, WELCH, and BOLDEN, the Supreme Court held:
- 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.
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. - 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
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.
STATE OF MICHIGAN
SUPREME COURT
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
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
In 2020, Pueblo took a legal step toward reunification with JPHP by filing a custody complaint under the Child Custody Act (CCA),
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
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:
(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
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.
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.”
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
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,
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
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.
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,
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—
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.
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,
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
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
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
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
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
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
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.]
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., concurring).
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.
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
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
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
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.
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 at 330, 332. Therefore, the analysis should focus on whether the parties would have married but for the unconstitutional prohibition.
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
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
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
Megan K. Cavanagh
Elizabeth T. Clement
Richard H. Bernstein
Elizabeth M. Welch
Kyra H. Bolden
STATE OF MICHIGAN
SUPREME COURT
CARRIE PUEBLO,
Plaintiff-Appellant,
v No. 164046
RACHEL HAAS,
Defendant-Appellee.
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.,
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),
I. BACKGROUND
Under the CCA, a parent is defined as the “natural or adoptive parent of a child.”
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
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
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
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
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
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,
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
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.”
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).
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
STATE OF MICHIGAN
SUPREME COURT
CARRIE PUEBLO,
Plaintiff-Appellant,
v No. 164046
RACHEL HAAS,
Defendant-Appellee.
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,
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
II. ANALYSIS
The Child Custody Act (CCA),
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
Under the equitable-parent doctrine, set forth by the Court of Appeals in Atkinson v. Atkinson9 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
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, 576 US 644; 135 S Ct 2584; 192 L Ed 2d 609 (2015)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
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
[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 toMCL 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 asfollows 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
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
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
Similar concerns seemed to motivate the majority in Van. There, the Court quoted the Illinois Supreme Court in Hewitt v Hewitt, 77 Ill 2d 49; 394 NE2d 1204 (1979),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
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
III. CONCLUSION
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