Michigan Case Tackles Unclear Custody Issues for Same Sex Couples

In June 2015, the Supreme Court ruled by a majority of 5 to 4 that the right to same-sex marriage is guaranteed by the constitution. Marriage unfortunately sometimes fails and the rights of parents to have custody of children born during the marriage have been well established over the years. The Supreme Court’s ruling means that these same rights will apply in the case of same-sex marriages entered into after June 2015. But what about same-sex relationships from before that time?

A case before a family court judge in Kent County, Michigan is testing this point.

Joy Phillips and Amber Berndt started dating in 2001.  Marriage was not an option for them because same-sex marriage was banned in Michigan at the time, but they wore wedding bands, bought two homes together and, in 2005, decided to enter into parenthood. Berndt was artificially inseminated and had a daughter. Three years later, they had a second daughter. Both children went by the last name Berndt-Phillips, each called both women “mom,” and Phillips and Berndt shared parenting duties. But only one of them was the biological mother.

This became problematic when the couple broke up in December 2014.  To the state of Michigan, Joy Phillips had the same relationship to the girls she thought of as her daughters as a care-giver might have – she had no legal rights whatsoever. By the time Amber Berndt announced that she was moving with her new partner to Petoskey, Michigan, things had become so bad between them that Berndt no longer allowed Phillips to see the girls or speak with them on the phone. Phillips petitioned the court in an attempt to get a more equitable arrangement.

What the judge now has to decide is what impact – if any – the Supreme Court ruling against same-sex marriage bans has. If same-sex marriage had been a possibility in 2005, this case would not be before the County Court. Should that be taken into account? Or not?

Jay Kaplan is the LGBT Project attorney for the American Civil Liberties Union (ACLU). He has gone on record to say that the option used by some same-sex couples in the past – that of entering into co-parent adoption agreements – was not available to Phillips and Berndt at the time because, “There was not a Judge in Kent County willing to grant a petition for second parent adoption during the time that Phillips and Berndt were together.”

Berndt’s attorney Scott Sherlund argues that, because there was never a formal marriage nor co-parent adoption agreement, Phillips has no legal standing and no right to custody. Phillips’s attorney Christine Yared counters this by pointing out that the ban on same-sex marriage in Michigan prevented the union and should be taken into consideration.

Unfortunately there will be more cases like this. If you would like legal consultation on this or another matter related to family law, please get in touch with Lyttle Law Firm for assistance. Feel free to send an enquiry through the website or call 512-215-5225.

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