Lead Opinion
Dеfendant, Kerri Putnam, appeals by leave granted the circuit court’s October 26, 2015 order denying her summary-disposition motion. Lake v Putnam, unpublished order of the Court of Appeals, entered January 28, 2016 (Docket No. 330955). On appeal, defendant additionally challenges the circuit court’s November 18, 2015 order awarding plaintiff, Michelle Lake, parenting time with defendant’s biological child. We reverse the October 26, 2015 summary-disposition order, vacate the November 18, 2015 parenting-time order, and remand this matter for entry of an order granting summary disposition in defendant’s favor.
Plaintiff and defendant were in a romantic relationship from 2001 until 2014. During their relationship,' defendant was artificially inseminated and gave birth to the minor child at issue in this case. Shortly after the parties’ relationship ended, defendant denied plaintiffs requests to spend time with the child. In light of this refusal, plaintiff filed this lawsuit, seeking parenting time with the child. Defendant filed a summary-disposition motion, arguing that plaintiff, as an unrelated third party, lacked standing to seek parenting time with the child. The circuit court denied defendant’s motion on October 26, 2015, and on November 18, 2015, the circuit court awarded plaintiff supervised parenting time with the minor child. Defendant subsequently applied for leave to appeal the circuit court’s October 26, 2015 order, and we granted her application.
On аppeal, defendant argues that the circuit court erred by denying her summary-disposition motion because plaintiff lacks standing to pursue parenting time with the child. We agree.
Generally, a party has standing so long as he or she “has some real interest in the cause of action” or its subject matter. In re Anjoski,
In this case, it is undisputed that plaintiff is a third person, see MCL 722.22(k) (defining “third person” as “an individual other than a parent”), not a parent, see MCL 722.22(i) (defining “parent” as “the natural or adoptive parent of a child”). Therefore, as a third person, plaintiff must satisfy the standing requirements under MCL 722.26b or MCL 722.26c(l)(b). She simply does not. Because plaintiff is not a parent or a third party with standing under the Child Custody Act, she lacks standing to create a custody dispute. Sinicropi v Mazurek,
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 he horn in wedlock. Van,
On appeal, plaintiff asks that we follow Ramey v Sutton,
First, Oklahoma’s in loco parentis status does not only apply to married couрles; rather, it appears to apply to anyone “who has assumed the status and
Plaintiff also argues that such a conclusion violates her constitutional rights to due process and equal protection. “The Fourteenth Amendment of the United States Constitution provides that ‘[n]o State shall. . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ ” In re Sanders,
In this case, it is somewhat difficult to discern the basis for plaintiffs due-process and equal-protection claims. It appears that she is, in essence, arguing that she is being treated unfairly due to her sexual orientation, but such an assertion is not factually supported by the record or legally supported by existing authority. Again, had she been married to the child’s biological parent, regardless of whether the biological parent was male or female, the outcome of this appeal would have been different. Stankevich,
Lastly, plaintiff argues that our conclusion violates the child’s constitutional right to equal protection. “Generally, persons do not have standing to assert constitutional or statutory rights on behalf of another person.” In re HRC,
In sum, while we acknowledge the challenges presented in child-custody disputes, including those involving same-sex couples, we conclude that the equitable-parent doctrine does not extend to unmarried couples. Van,
Reversed and remanded. No taxable costs pursuant to MCR 7.219, a question of public policy being involved.
METER, P.J., concurred with O’BRIEN, J.
Concurrence Opinion
(concurring). I agree with my colleagues that the trial court’s ruling should be reversed and the
While the parties disagree as to details, it is undisputed that they lived together for more than a decade as a same-sex couple, that about five years into the relationship defendant bore a child by artificial insemination, that for sevеral years the parties each acted as a parent to the child, and that they were both viewed as parents by the child. It is also undisputed that several years later, around September 2014, defendant ended the relationship, moved out with the child, and entered into a new relationship with a different woman. Defendant initially allowed plaintiff visitation with the child, but eventually she refused to do so. In June 2015, plaintiff filed this action seeking parenting time.
MCL 722.22(i) and (k) respectively define the terms “parent” and “third person” for purposes of the Child Custody Act, MCL 722.21 et seq. Under these definitions, plaintiff is a “third person,” not a “parent,” and so she is not provided any parental rights by statute. Accordingly, the only way for her to be entitled to relief is through application of the equitable-parent doctrine, which we defined in Atkinson v Atkinson,
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*258 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. \Id. at 608-609.]
Although the husband in Atkinson was not the child’s biological father, he and the child’s mother were married at the time the child was born or conceived. Id. at 604-605, 608. Subsequently, in Van v Zahorik,
Accordingly, as the parties in the instant case were never married it would appear that Van forecloses plaintiffs claim of parental rights under the equitable-parent doctrine. Plaintiff makes two arguments in response. First, she argues that equitable parental rights should be viewed as arising from the best interests of the child and not from the relationship status of the parties. Therefore, if it is in the best interests of the child to establish parental rights in a child’s long-term de facto parent, equity requires that
[T]he issue in this case is not, or at least should not be, sexual relationships or the marital status of the parties. Those factors should be considered, if at all, during a best interests hearing conducted by the circuit court pursuant to MCL 722.23; MSA 25.312(3). Rather, this Court’s focus should be on the innocent victims in this case, and many others like them: the children of dissolving nonmarital relationships. The issue is the best interests of these children and the role of the court in protecting them. \Van,460 Mich at 338-339 (BRICKLEY, J., dissenting).]
While Justice BRICKLEY’s view has merit, it was not the view of the majority of the Van Court and, we are bound by the Van decision until such time as it is modified by the Supreme Court or the Legislature. Accordingly, I conclude that we must reject plaintiffs request to expand the equitable-parent doctrine beyond marriage, which would require consideration of the best interests of the child rather than the relationship of the parties.
Plaintiffs second argument turns on the fact that the parties were a same-sex couple and so were subject to the near-universal ban on same-sex marriage that existed before the 2015 decision of the United States Supreme Court in Obergefell v Hodges, 576 US_;
In Stankevich v Milliron (On Remand),
Accordingly, plaintiff is correct that Obergefell demands extension of the equitable-parent doctrine. My colleagues are rightfully concerned about retroactively imposing marriage on a same-sex couple simply because one party now desires that we do so. However, that concern is fully addressed by a factual inquiry into the facts as they existed at the time the child was born or conceived. The question is whether the parties would have married before the child’s birth or conception but did not because of the unconstitutional laws preventing them from doing so. If they would have married at that time, then the fact that one or both would not marry today should not retroactively impose
Oregon’s Court of Appeals recently addressed this question in In re Madrone,
Extending the statute simply on the basis of intent to be a parent would comport with one purpose of the legislation—protecting the support and inheritance rights of children conceived by artificial insemination— hut it would not be consistent with the overall statutory scheme—specifically, the legislature’s decision to make the statute apply only to children of married couples. If an unmarriеd opposite-sex couple conceives a child by artificial insemination using sperm from a donor, the statute does not apply, even if the couple, in the words that the trial court used to describe petitioner and respondent, “lived together as a couple, intended to remain together, and intended to have a child and to co-parent the child.” Accordingly, it would be inappropriate for courts to extend the statute to same-sex couples solely on the basis of оne or both of the parties’ intent to have the nonbiological party assume a parental role. [In re Madrone,271 Or App at 127-128 .]
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 аnswer 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 othеr 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 (aside from unsuccessfully attempting to get married before same-sex marriages were legally recognized . . .), 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. [Id. at 128-129.]
I would adopt this approach and hold 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,
In her brief, plaintiff asserts that Obergefell held that the denial to same-sex couples of the right to marry was irrational and unjust. She goes on to assert that “[fit would be equally irrational and unjust for Michigan to deny [the child] the benefits and protections of the equitable-parent doctrine because his parents were unmarried, given that the only reason they were unmarried is that they were unconstitutionally denied the right to marry during their relationship.” I fully agree with this view and believe it is consistent with Obergefell and the constitutional principles on which Obergefell rests. However, on the facts of this
Notes
Obergefell v Hodges,