Deanna Mabry and Johanna Mabry were in a committed same-sex relationship for 15 years during the time when gay couples were being unconstitutionally denied the right to marry in Michigan. Despite not being legally married, Deanna and Johanna had a commitment ceremony, signed a ketubah (a Jewish marriage contract), took the same last name, and bought a home together. They also decided to raise children together as co-parents, with Johanna as the biological mother.
After their relationship ended in 2010, Deanna sought joint custody and visitation with their children. Under the “equitable parent” doctrine, non-biological parents may petition for custody and visitation when they have a parenting relationship to the child. However, based on a decades-old precedent involving a heterosexual couple who chose not to marry, lower courts in Michigan have ruled that the equitable parent doctrine is limited to cases where the non-biological parent was married to the biological parent—a legal impossibility in cases involving same-sex couples in Michigan before 2015.
The ACLU of Michigan has been working to overturn this restrictive and discriminatory definition of equitable parenthood by representing non-biological co-parents seeking custody and visitation with their children and by filing friend-of-the-court briefs in trial and appellate courts. In one case, the Michigan Court of Appeals ruled in November 2015 that if a couple was married in Canada or another state that had marriage equality, the equitable parent doctrine would apply even if the couple’s marriage was not previously recognized in Michigan. But in another case, the Court of Appeals ruled in July 2016 that if the couple was not married in any jurisdiction, the non-biological parent did not have standing to seek custody or visitation under the equitable parent doctrine.
In January 2016 we asked the Michigan Supreme Court to take Deanna Mabry’s case and rule that the equitable parent doctrine can be invoked by co-parents who were in same-sex relationships that bore all the hallmarks of marriage during the time when Michigan was unconstitutionally prohibiting same-sex couples from marrying. We argued that excluding Deanna from the equitable parent doctrine compounded and extended the constitutional violation of having denied same-sex couples the right to marry in the first place. Unfortunately, in August 2016 the Supreme Court declined to take the case. Justice McCormack, joined by Justice Bernstein, issued a dissenting opinion.
(Stankevich v. Milliron; Lake v. Putnam; Mabry v. Mabry; ACLU Attorneys Jay Kaplan, Dan Korobkin and Michael J. Steinberg; Cooperating Attorneys Sarah Zearfoss, Naomi Waloshin, John Shea and Christine Yared.)
View the full 2014-2015 Legal Docket.