Understanding the Equitable Parent Concept and Divorce in Michigan

Imagine this scenario: your spouse has an extramarital affair that results in the birth of a child. The child ultimately lives in your home, and you fall in love with the child, care for the child and for all intents and purposes, the child is your child. Flesh and blood aren't everything, right? But then you and your spouse divorce. What about your relationship with your (non-biological) child?

Women of Michigan should beware: absent a stepparent adoption, you are not eligible for custody rights or parenting time under the above-described scenario. This isn't a far-fetched hypothetical for law students, the scene described above happens in Michigan and elsewhere in the world every single day.

If this bothers you, you can imagine the frustration and emotional pain felt by Angela Kivari. Ms. Kivari is a Michigan resident who bravely took on the task of raising her stepchild, who was borne out of her husband's extramarital affair with another woman. When she and her husband divorced fourteen years after the birth of her stepson, she continued to love and provide the majority of day-to-day care for her stepson. Eventually Mr. Kivari decided that his ex-wife's time with her stepson should be severely limited. She did the majority of the child-rearing, yet now she can see her stepson only with the consent of her ex-husband. What a terrible outcome for an involved parent.

The equitable parent doctrine, adopted in Atkinson v Atkinson, 160 Mich.App. 601; 408 N.W.2d 516 (1987), provides 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. [Id. at 608-609.]

Take special note: the above language specifically says a husband. It is not gender neutral and Michigan Courts have ruled that the equitable parent language of Atkinson does not apply to women.

While the Revocation of Paternity passed in 2012 expanded the paternity rights for unmarried fathers, it was silent as to any expansion of rights for women, stepparents or non-biological parents.

The argument in favor of this outcome is simple: where there exists two biological parents, a third party with custody and/or parenting time rights can complicate matters excessively. Nevertheless, in cases such as Kivari, it is hard to make the case that Michigan statutes served the best interests of the child.

You can read Kivari v. Kivari here, courtesy of leagle.com

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