Order Michigan Supreme Court
Lansing, Michigan
July 22, 2011 Robert P. Young, Jr.,
Chief Justice
141888 & (34)(35) Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
RENEE S. HARMON, Brian K. Zahra,
Plaintiff-Appellant, Justices
v SC: 141888
COA: 297968
Wayne CC: 10-101368
TAMMY L. DAVIS,
Defendant-Appellee.
_________________________________________/
On order of the Court, the motions for leave to file brief amicus curiae are
GRANTED. The application for leave to appeal the July 8, 2010 order of the Court of
Appeals is considered, and it is DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court.
MARILYN KELLY, J. (dissenting).
I dissent from the order denying plaintiff’s application for leave to appeal. This
child custody case involves issues of great jurisprudential significance, including (1) the
scope of the “equitable parent” doctrine established in Atkinson v Atkinson1 and
interpreted by this Court in Van v Zahorik,2 (2) whether Van’s interpretation of the Child
Custody Act (CCA)3 violates plaintiff’s constitutional rights, and (3) whether the
combined effect of the CCA and the marriage amendment of the Michigan Constitution
unlawfully denies plaintiff standing.4 The application for leave to appeal should be
granted.
1
Atkinson v Atkinson, 160 Mich App 601 (1987).
2
Van v Zahorik, 460 Mich 320 (1999).
3
MCL 722.21 et seq.
4
Const 1963, art 1, § 25.
2
FACTS AND PROCEDURAL HISTORY
Plaintiff and defendant had a same-gender domestic relationship for 19 years,
during which time defendant bore three children through artificial insemination. The
relationship ended in 2008, and plaintiff moved out of their shared residence. A period of
shared parenting ensued, although the parties disagree about its length and about whether
they had an agreement concerning parenting time. Eventually, defendant refused plaintiff
any parenting time.
Plaintiff filed a petition seeking enforcement of what she alleged had been the
parties’ agreed custody arrangement and parenting time. She alleged that they had a “de
facto legal custody arrangement” from the time she moved out of their home until
September 2009. Plaintiff further claimed that, after that date, defendant had
unreasonably refused to allow her any parenting time with their children. Plaintiff later
amended her petition to raise numerous constitutional claims and request a court
determination that she has standing as a parent to seek custody of and parenting time with
the children.
After argument of counsel, the court ruled that plaintiff lacked standing as a “third
person” under the CCA. It opined that she might have standing as a “natural parent” on
the basis of her past assumption of parental obligations. Thus, it scheduled an evidentiary
hearing to determine whether the parties had an agreement that both would raise the
children. The court indicated that, if they had such an agreement, it would hold a best-
interests hearing to determine custody, support, and parenting time issues.
Defendant sought leave to appeal in the Court of Appeals, which reversed the trial
court’s decision by peremptory order. It held that plaintiff did not have standing under
any theory.5 On remand, the trial court dismissed the case.
LEGAL BACKGROUND
The CCA defines “parent” as “the natural or adoptive parent of a child”6 and a
“third person” as “an individual other than a parent.”7 MCL 722.26c sets forth the
circumstances in which a third person may bring an action for custody under the CCA.8
5
Harmon v Davis, unpublished order of the Court of Appeals, entered July 8, 2010
(Docket No. 297968).
6
MCL 722.22(h).
7
MCL 722.22(j).
8
MCL 722.26c provides in relevant part:
3
In Atkinson, the Court of Appeals recognized the doctrine of equitable parenthood.
Under that doctrine, Michigan courts recognize a legal relationship between a de facto
parent and a child “when [the de facto parent] desires such recognition and is willing to
support the child [and] wants the reciprocal rights of custody or visitation afforded to a
parent.”9
This Court considered the scope of the equitable-parent doctrine in Van.10 The
majority declined to extend the equitable-parent doctrine to parties who were never
married to one another. Because the CCA provided no basis for the children’s de facto
father to sue for custody, the majority concluded that he lacked standing to bring a
paternity action.11
In 2004, Michigan voters approved Proposal 2, the marriage amendment to the
Michigan Constitution, now article 1, section 25. It provides that “the union of one man
and one woman in marriage shall be the only agreement recognized as a marriage or
similar union for any purpose.”
(1) A third person may bring an action for custody of a child if the court
finds either of the following:
(a) Both of the following:
(i) The child was placed for adoption with the third person under the
adoption laws of this or another state, and the placement order is still in
effect at the time the action is filed.
(ii) After the placement, the child has resided with the third person for a
minimum of 6 months.
(b) All of the following:
(i) The child’s biological parents have never been married to one another.
(ii) The child’s parent who has custody of the child dies or is missing and
the other parent has not been granted legal custody under court order.
(iii) The third person is related to the child within the fifth degree by
marriage, blood, or adoption.
MCL 722.26b(1) also grants “a guardian or limited guardian of a child” standing to bring
a CCA action. Because plaintiff is not and has never been a guardian of the children who
are the subject of this dispute, MCL 722.26b is irrelevant to the instant case.
9
Atkinson, 160 Mich App at 610.
10
I dissented from the majority opinion in Van, as did Justice BRICKLEY, joined by
Justice CAVANAGH.
11
Van, 460 Mich at 331.
4
ISSUES RAISED
Plaintiff raises several related claims in asserting that she has standing to seek
custody of the minor children in this case. First, she claims that the Court of Appeals
erroneously interpreted Van as excluding her from consideration as a natural parent under
the CCA. Plaintiff argues that, because Michigan law recognizes the equitable-parent
doctrine, she is entitled to the benefit of that doctrine because she is a de facto parent of
the children.
Second, plaintiff alleges that Van’s interpretation of the CCA’s standing
requirements violates her equal protection and due process rights. Moreover, she asserts
that Van’s interpretation of the CCA is unconstitutional because that interpretation,
coupled with the subsequent enactment of the marriage amendment, leaves no legal way
for her to acquire standing. This is so because, to have standing as a parent under the
CCA, one must qualify as a natural parent or an adoptive parent. Plaintiff cannot legally
marry defendant in this state, and Michigan does not currently allow second-parent
adoption. Thus, plaintiff contends, the current legal scheme is irrationally discriminatory
in that it discriminates against plaintiff and others who are similarly situated.
CONCLUSION
Plaintiff’s application raises significant constitutional questions that this Court has
not yet considered. Courts across the country are grappling with similar issues.12 Their
jurisprudential significance is underscored by the fact that the ACLU Fund of Michigan
and Family Watch International have already filed briefs amicus curiae.
Yet the majority today declines to consider plaintiff’s arguments and lets stand a
peremptory order from the Court of Appeals that does not address plaintiff’s
constitutional claims. This case cries out for a ruling by the state’s highest court.
CAVANAGH and HATHAWAY, JJ., would grant leave to appeal.
12
See, e.g, VC v MJB, 163 NJ 200 (2000); Jones v Barlow, 154 P3d 808 (Utah, 2007).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 22, 2011 _________________________________________
p0719 Clerk