The Evolving Law of Same-Sex Marriages

Gay and Lesbian families face special challenges because of Michigan’s law on same-sex marriages.

There are thousands of gay and lesbian families in Ann Arbor and across Michigan. Now that gay marriage is legal nationwide, many of those families have questions about the evolving law of same-sex marriages. They may wonder about parental rights, gay divorce, and whether they still need a step-parent adoption. At NSSSB, we’re ready to provide the answers.

A Quick History of Same-Sex Marriage in Michigan

In 2004, Michigan voters approved laws that made same-sex marriage illegal in Michigan. Not only were there no same-sex marriage licenses in Michigan, but Michigan judges were banned from recognizing legal marriages performed elsewhere. It was one of the most restrictive same-sex marriage laws in the country.

In addition, many Michigan judges interpreted the state’s adoption code to say that two unmarried parents could not adopt the same child. Fortunately, several judges in Washtenaw County and elsewhere read that statute differently, and Ann Arbor families were able to adopt children together even while they were not allowed to be married.

U.S. Supreme Court Legalizes Gay Marriage

Then, in 2012, a federal district court judge struck down the gay marriage ban, saying that two lesbian women had the constitutional right to marry and raise their children together. In 2015, this was one of several cases to come before the United States Supreme Court in the decision titled Obergefell v Hodges. In that decision, the United States Supreme Court declared that marriage was a fundamental right, and that same-sex couples and their children had the right to all the same marriage benefits as their heterosexual counterparts, including:

  • Equal access to marriage licenses and divorce courts
  • Adoption by same-sex couples
  • Spousal inheritance and joint property rights
  • Tax exemptions, dependencies, and other spousal benefits
  • Employee benefits like medical insurance, retirement plans, and parental leave

What Gay Divorce Looks Like Today

Obergefell was rightfully celebrated as a huge advancement of LGBTQ+ rights nationwide. However, the years since 2015 have not been so kind to Michigan families. In 2015 and 2016, two opinions from the Michigan Court of Appeals, and an order from the Michigan Supreme Court limited non-biological same-sex parents’ rights to fight for custody over their children. These cases said that non-biological gay and lesbian parents can qualify for “equitable parentage,” but only over children born during the marriage (which they could not enter until 2015), and then only if they can prove they took active steps to be parents to their children. This means that gay and lesbian couples who used in-vitro fertilization (IVF) or other assistive reproductive technologies (ARTs), may still need to pursue an adoption to secure the rights of the non-biological parent.

However, more recently, in 2021, the Michigan Court of Appeals have taken up same-sex parenting issues in awarding custody in a gay divorce with one working parent (in Bofysil v Bofysil) and in a child custody case between genetic and gestational mothers (in LeFevere v Matthews). These cases show that, at least where both spouses agree the other is an intended parent of the child, gay divorce and custody battles are now similar to those between opposite-sex parents.

Issues After Gay Marriage in Michigan

Michigan’s legislature has not (as of December 2021) made significant adjustments to its divorce and custody laws to account for the effect of gay marriage in Michigan. That means that many laws still refer to “paternity” and “husbands” and “fathers” when referencing the spouse of a mother who gives birth. Also, so far, attempts to formalize second parent adoptions have not yet been successful. These bills would streamline the process for the spouses of children born during a marriage to secure parental rights.

Our Commitment to Michigan’s LGBTQ+ Families

Michigan law for same-sex marriages continues to evolve slowly. That means it is essential for LGBTQ+ couples and parents to work with family lawyers who understand the law as it is, and are willing to sort through the often complex issues around equitable parentage, custody, and gay divorce. At NSSSB, our family law attorneys want to help you do what is best for your family and your children. We will help you review your situation and recommend strategies for every stage, from LGBTQ+ family planning to gay divorce. We also have estate planning attorneys who can help ensure your gender identity is honored and your spouse’s rights protected after your death. Schedule a consultation to discuss your specific situation and get help protecting all your constitutional marriage rights.