Equitable Parent Doctrine and Same-Sex Partners

This is the second article about the Equitable Parent Doctrine in Michigan and its many limitations.

Two women in a longstanding romantic relationship decided to have a child. While never married, the couple raised their child as co-parents. The couple's relationship came to a permanent end, with the non-biological parent never having pursued a formal adoption of her child. The parent who did not carry the child during pregnancy filed a lawsuit seeking to be recognized as an equitable parent to her non-biological child. Her suit was challenged by her former partner. The trial court dismissed the case, citing the non-applicability of the Equitable Parent Doctrine to the parties' issue. On appeal, the Michigan Court of Appeals agreed with the trial court. This is a real case, Kolailat v. McKennett. Ms. Kolailat, despite all moral arguments to the contrary, has no legal right to custody or parenting time with her child.

In the above scenario, there are similarities to the case previously discussed: Kivari v. Kivari. In both Kivari and Kolailat, the parties seeking appellate relief were denied because they failed to meet the basic requirements of the doctrine: they were not married men. Additionally, Ms. Kolailat was was not married to her partner, and the Equitable Parent Doctrine applies only to children born or conceived to one of the parties during their marriage. It also requires a divorce to occur - not present in Kolailat.

The best advice to take away from Kolailat is that same-sex partners who decide have children through the artificial insemination of one person, need to investigate adoption of the child by the non-biological parent. Otherwise, the non-biological parent could end up with no custody and parenting time rights in the future.

Full opinion of Kolailat available here, courtesy of Justia.com

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