If you are one of the 373,000 LGBTQ+ residents in the state of Michigan, you may have seen a lot of conflicting news about same sex adoption in the state. It might make you worried about what will happen to your children if you and your spouse divorce or one of you passes away. The truth is that Michigan laws around LGBTQ+ parents are still evolving, and they are probably not as protective as you might hope. Here’s a summary of what the law is, how it got there, and what you need to know, as an LGBTQ parent.
The short answer to whether same sex couples can adopt children in Michigan is: yes. The Michigan Adoption Code allows any “person, together with his or her spouse” to file a petition to adopt a child.
However, the legal ability to file an adoption petition doesn’t mean it is always easy for LGBTQ+ fathers and mothers to complete the adoption process. To understand the current climate, you need to take a look back at how the state got to where it is today.
Same sex marriage wasn’t legal in Michigan until briefly in 2014, and then later on June 26, 2015 when the United States Supreme Court decided Obergefell v Hodges. That’s not to say that there weren’t LGBTQ+ couples raising children together in Michigan before 2014. There were. Many had traveled out of state to be married in Canada or one of the several states that legalized gay marriage sooner. Others entered into domestic partnerships (where allowed by the state) and agreed that while one parent would legally adopt the child, both would act as parents. There was a time, before Obergefell, when certain family court judges were granting “second parent” adoptions to unmarried parents in same-sex relationships. However, the legal basis for these adoptions was unclear and many couples simply operated without formal legal parenting rights.
The prior arrangements were risky because it meant only one parent was legally responsible for the child. While some gay and lesbian couples adopted children from within the foster system, others raised children from earlier heterosexual relationship or used volunteer donors or surrogates to help them have children that were biologically related to them. When these couples’ relationships ended or when the legal parent died or became incapacitated, it often left their partner with no legal right to custody of the child they helped raise.
Obergefell wasn’t the end of the story for LGBTQ+ couples in Michigan and across the country. Same sex marriage was back in front of the U.S. Supreme Court in 2017 in Pavon v Smith, where a lesbian couple fought to have the non-biological mother’s name listed on the child’s birth certificate. The Court said that the right to marriage included all the rights related to being married, including the right to appear as a parent on the child’s birth certificate. A similar case out of Indiana was just rejected by the Supreme Court in 2020.
At the same time, there have also been state and federal lawsuits around whether religious-based adoption agencies with state contracts are required to serve LGBTQ+ couples. In 2015, the Michigan Legislature passed a law saying that an adoption agency’s contract with the state could not be terminated because they refused to screen or place children with couples based on their religious convictions (such as single parents or gay couples).
However, in 2017, the American Civil Liberties Union (ACLU) sued on behalf of a lesbian couple denied placement on the basis of sexual orientation discrimination. That case settled after the 2018 election replaced Michigan’s governor and attorney general with officials sympathetic to LGBTQ+ rights (Attorney General Dana Nessel was the attorney for the Michigan couple in the Obergefell decision). Attorney General Nessel agreed to enforce the anti-discrimination clauses in adoption agencies’ contracts, preventing them from discriminating against same-sex couples.
Almost immediately, St. Vincent Catholic Charities filed a new suit saying the Attorney General’s decision to enforce the contract’s anti-discrimination clause violated its religious freedom. A federal judge in the United States District Court for the Western District of Michigan entered a temporary order allowing St. Vincent’s and other religious adoption agencies to continue their selective practices. However, the case is still pending and will likely involve an appeal no matter which way the court rules. Since organizations like Bethany Christian Services, St. Vincent’s, and Lutheran Adoption Service are some of the largest child placement agencies in Western Michigan, the results of this litigation will have a direct impact on local couples’ access to the adoption process.
Things have gotten better for LGBTQ+ parents since 2015, but as often happens, the laws haven’t kept up with the Supreme Court’s decisions. As a result, for the last six years, Michigan family law attorneys and family court judges have been doing their best to interpret the state’s pre-2015 laws in ways that match the new pro-LGBTQ+ ruling. This creates some troubling gray areas for same-sex parents.
The biggest challenge for couples who had children (one way or another) before 2015 and eventually got married involves what happens to those children if and when the relationship ends. The Michigan appellate courts have not been receptive to arguments that a non-biological parent in a same-sex divorce was an intended parent even when the couple couldn’t get married. The state’s equitable parent doctrine is very narrow. Designed long before the idea of gay marriage became newsworthy, it requires same-sex couples to be married at the time the child was born in order for the non-biological parent to ask the family court judge for custody or parenting time with that child.
Another area where gay and lesbian parents sometimes have trouble is in determining “parentage.” The Michigan Paternity Act, Revocation of Paternity Act, and laws related to in vitro fertilization (IVF) still use gendered language. For example, the Revocation of Paternity Act says:"
“’Presumed father’ means a man who is presumed to be the child's father by virtue of his marriage to the child's mother at the time of the child's conception or birth.”
There is no such law defining a “presumed mother” for the woman married to the child’s mother at the time of the child’s conception or birth. Most courts across the state read these statutes as “spouse” and “parent” instead of “husband” and “father.” However, there is still the potential for these outdated laws to create problems for same-sex couples in the future.
With all this history and the ongoing legal challenges facing gay couples, one common question is whether same sex adoption is still necessary for married couples. To be clear, the question is whether the spouse of a custodial parent should go through a “step-parent adoption” process to be named the legal parent of that child.
If the child came first, before the legal marriage ceremony, the answer in most cases will be yes: a step-parent adoption will cement the non-biological parent’s rights and make sure they are treated as a parent by the family courts. This may involve terminating the rights of the sperm donor or surrogate, or getting the consent of a non-custodial parent. You should work with an experienced adoption attorney to complete the step-parent adoption paperwork and formalize your relationship with your child.
The question of whether to adopt becomes more complicated when the parties were married before the child was conceived and born. The Michigan Adoption Code only applies to children “born out of wedlock” or whose parents’ rights are terminated through the juvenile code. When same-sex couples are married first and conceive a child second, the child doesn’t fit into either of those categories. Some Michigan courts are now ruling that they can’t grant an adoption in these cases because the non-biological parent is already the legal parent of the child.
However, that legal status is based on assumptions in how specific judges are interpreting Michigan law. If a couple moves outside of Michigan to less LGBTQ+-friendly states and then heads to court for a divorce, custody issue, or estate administration, the question of the non-biological parent’s rights could go a different way. That is why some Michigan family law attorneys are filing petitions with the family courts to enter orders of “filiation” (legal parentage) on behalf of married couples. This gives them a court order declaring both parents are legal parents, even when adoption isn’t an option.
Same-sex adoption in Michigan continues to be a changing area of the law. If you try to navigate these waters on your own, you could easily be told you don’t have rights even when you have been acting as a child’s parent all their life. Don’t assume you are protected.
At NSSSB, we understand the changing same-sex adoption and custody laws and how they affect couples. Our Southeast Michigan family law attorneys are happy to sit with you and explain how the law works, and what your options are in the current legal climate. We can also help you navigate the technical challenges of obtaining a step-parent adoption or order of filiation from the Michigan family courts. Click here to schedule a consultation with one of our experienced attorneys.