THIS WEBSITE IS MEANT FOR INFORMATIVE PURPOSES ONLY. IT DOES NOT CONSTITUTE LEGAL ADVICE.

Are you, or do you know a gay, lesbian, bi-sexual or transgender person who may have questions about legal issues? The GLBT Legal Hotline provides legal advice over the telephone to the GLBT population to address their legal issues.

The GLBT Legal Hotline is a FREE service provided by Elder Law of Michigan,  Inc., a  private, non-profit organization. The GLBT Legal Hotline assists the GLBT community with many personal legal issues particularly  regarding estate, probate & partnership issues (such as Last Wills and Testaments, Powers of Attorney, Joint Tenancy, Advance Directives, Pensions, Caregiver concerns, Trusts, etc.)

There are no income or age restrictions for callers from the GLBT community. The GLBT Legal Hotline features a friendly staff of attorneys and assistants who care about these special needs and situations.

THIS WEBSITE IS MEANT FOR INFORMATIVE PURPOSES ONLY. IT DOES NOT CONSTITUTE LEGAL ADVICE.

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MARRIAGE/DOMESTIC PARTNERSHIP:

A Brief Discussion of Michigan Marriage and Domestic Partnership Law Issues For Gay, Lesbian and Bisexual Couples
(This is just some food for thought; it is not dispositive.)

Marriage/Domestic Partnerships in Michigan for Same-Sex Couples

LGBT persons who have lifetime partners, or who wish to marry, may want to know a little about the legal landscape in Michigan as they make their plans. Currently, Michigan law does not embrace gay marriages; even alternative arrangements sometimes known as “civil unions” are not in favor.

A marriage among a same-sex couple performed in Michigan would not normally be recognized. Same-sex marriages can be performed in other countries or jurisdictions where they are legal, i.e. Massachusetts, but the couples, upon returning to Michigan, arrive to a rather gray legal landscape as to whether their marriage will be recognized.

Because this area of the law can be dynamic, such couples should keep their eye on the news or this website or the websites of others (i.e. www.lambdalegal.org/our-work/states/michigan.html or www.aclumich.org/modules.php?name=News&new_issue=4). In addition, LGBT couples can also take other practical measures already available to any competent adult in Michigan. These practical protective measures include such things as:

1. Drafting and executing a will or trust or both
2. Setting up a durable power of attorney (for finances and business affairs)
3. Establishing a designation of patient advocate (sometimes called a medical power of attorney or even a living will)
4. Considering joint property arrangements or partnership documents
5. Reviewing possible tax and gift issues   

The following are some of the key federal and state laws dealing with marriage and domestic partnerships for same-sex couples in Michigan:

Federal Law:

The Defense of Marriage Act (DOMA) was signed by then President Clinton in 1996; this law operates in two ways. First, no state (or other political subdivision within the United States) need recognize a marriage between persons of the same sex, even if the marriage was concluded or recognized in another state. Second, the Federal Government may not recognize same-sex or polygamous marriages for any purpose, even if concluded or recognized by one of the states.

Marriage is limited to one man and one woman (DOMA).  1 U.S.C. § 7 (for federal purpose, marriage refers to one man and one woman) and 28 U.S.C. § 1738(c) (no state is required to give legal recognition to same-sex marriages performed in another state).  This law was upheld as constitutional in Wilson v. Ake (Middle District of Florida, 2005). This case held that DOMA did not violate the Full Faith and Credit Clause of the Constitution (the Clause gives effect to one state’s decision when trying to execute upon that decision in another state); there is a public policy exception to the Full Faith and Credit Clause that allows one state not to uphold a same-sex marriage performed in another state once a couple from the other state tries to have their marriage recognized in our state.
Michigan Law:

M.C.L. (Michigan Compiled Laws) 551.1: Marriage between same sex, invalidity.
Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting that unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.

M.C.L. 551.271: Marriage solemnized in another state validated (at least those marriages between a man and a woman)
(1) Except as otherwise provided in this act, a marriage contracted between a man and a woman who are residents of this state and who were, at the time of the marriage, legally competent to contract marriage according to the laws of this state, which marriage is solemnized in another state within the United States by a clergyman, magistrate, or other person legally authorized to solemnize marriages within that state, is a valid and binding marriage under the laws of this state to the same effect and extent as if solemnized within this state and according to its laws.
(2) This section does not apply to a marriage contracted between individuals of the same sex, which marriage is invalid in this state under section 1 of chapter 83 of the revised statutes of 1846, being section 551.1 of the Michigan Compiled Laws.

Michigan’s Version of DOMA:(Article 1, Section 25 of the Michigan Constitution):  “To secure and preserve the benefits of marriage for our society and for future generations of children, 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.”

What’s Happening Now?

There is a case currently working its way through Michigan’s court system that is dealing with whether Michigan’s DOMA applies to domestic partnerships and the like (National Pride at Work v. Granholm). At the Circuit Court level, for this case, in Ingham County, it was held that government organizations could still provide health benefits for domestic partners of employees. Later, on February 2, 2007, a unanimous three-judge panel for the state Court of Appeals ruled that this portion of our State Constitution bans domestic partner benefit plans. The ruling dismissed Pride at Work's claim that the amendment deprives same-sex couples of the equal protection of the law. "Consistent with the state's long public policy tradition of favoring the institution of marriage," the court wrote, "the marriage amendment's purpose, 'to secure and preserve the benefits of marriage for our society and for future generations of children...' is neither arbitrary nor invidious on its face." Pride at Work immediately appealed this ruling, and the Michigan Supreme Court granted leave for appeal in May of 2007.
The governor, as a precautionary measure, suspended all state benefits for same-sex couples until this issue is resolved by the courts. 

The Attorney General for the State of Michigan has issued two (non-binding) opinions dealing with this issue: 
1. Opinion No. 7171 interprets Michigan’s DOMA to prohibit any government entity from offering benefits to same-sex domestic partners.
2. Opinion No. 7160 argues that same-sex marriages performed in other states are not valid in Michigan, based on M.C.L. 551.1 and 551.271 and a ‘public policy exception’ to the Full Faith and Credit Clause of the federal Constitution. Further, the opinion is based off of In re Miller’s Estate, a 1927 Michigan Supreme Court case holding that a type of marriage specifically prohibited in Michigan would be invalid in Michigan, even if it was performed in a state where it was valid.

Proponents of gay marriage and human rights have and will continue to make counterarguments to this legislation. They point to Loving v. Virginia, a 1967 United States Supreme Court case striking down anti-miscegenation laws (which prohibited marriage or sexual relations between people of different races) as unconstitutional and holding that marriage is a “basic civil right of man” protected by the 14th Amendment’s Due Process requirement, and Lawrence v. Texas, a 2003 United States Supreme Court case striking down anti-sodomy laws as unconstitutional because of the liberty interest protected by the 14th amendment (overruling Bowers v. Hardwick, a 1986 United States Supreme Court case holding that Georgia's sodomy statute did not violate the fundamental rights of homosexuals). The proponents argue that gay marriage should be guaranteed by the 14th amendment.

Michigan has passed a constitutional amendment limiting recognition to only those marriages between a man and a woman (Michigan’s DOMA). Thus, because such an amendment exists, any similarities between the Supreme Court’s reasoning in Loving and Lawrence will not extend to a case where someone seeks the right to “marry” in Michigan. A domestic partnership or civil union is more likely possible under Michigan’s amendment; however, even that issue is working its way through the courts (see National Pride at Work v. Granholm above). 

Citations: National Pride at Work v. Granholm, 274 Mich. App. 147 (2007); National Pride at Work v. Granholm, 478 Mich. 862 (2007); In re Miller’s Estate, 239 Mich.455 (1927); Loving v. Virginia, 388 U.S. 1 (1967); Lawrence v. Texas, 539 U.S. 558 (2003); Bowers v. Hardwick, 478 U.S. 186 (1986).

Of Note: There are people that have compiled a list of state laws (i.e., New York laws) involving marital relations to show just how much of an effect banning gay marriage has on homosexual couples, in terms of not falling under these laws because they cannot get married. The link to this list of New York laws, compiled by The Empire State Pride Agenda Foundation and The New York City Bar Association and entitled "1324 Reasons for Marriage Equality in New York States," is http://www.nycbar.org/pdf/report/marriage_v7d21.pdf.

Table of states recognizing and not recognizing same-sex marriages, civil unions, and domestic partnerships

*The information used in the above table was taken from http://en.wikipedia.org/wiki/Image:US_SSM_Laws.png

**For more illustrations of state law concerning same-sex marriage and other issues pertaining to same-sex couples visit the National Gay and Lesbian Taskforce's website at: http://www.thetaskforce.org/reports_and_research.

CUSTODY/VISITATION INFORMATION:

A Brief Discussion of Michigan Custody and Visitation Law (Parenting Time) Issues For Gay, Lesbian and Bisexual Parents
(This is just some food for thought; it is not dispositive.)

Custody and Visitation (Parenting Time) for Gay, Lesbian and Bisexual Parents

Michigan courts typically will not consider a parent’s sexual orientation in custody and visitation (parenting time) determinations unless it is shown to adversely affect or harm the child(ren).

Michigan law states: “‘Best interests of the child’ means the sum total of the following factors to be considered, evaluated and determined by the court: (a) The love, affection and other emotional ties existing between the parties involved and the child; (b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any; (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care and other material needs; (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity; (e) The permanence, as a family unit, of the existing or proposed custodial home or homes; (f) The moral fitness of the parties involved; (g) The mental and physical health of the parties involved; (h) The home, school and community record of the child; (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference; (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents; (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child; (l) Any other factor considered by the court to be relevant to a particular child custody dispute. …

“If a child custody dispute is between the parents, between agencies or between third persons, the best interests of the child control. If the child custody dispute is between the parent or parents and an agency or a third person, the court shall presume that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.”

In a 2000 case, Ulvund v. Ulvund, the appeals court stated that a court may consider a parent’s sexual orientation where it is relevant to the statutory factors, i.e., whether it impacts the best interests of the child. In this case the trial court generally considered the plaintiff’s (mother’s) stable relationship with her same-sex partner as a factor in favor of her gaining physical custody of her son during the school year. The trial court’s opinion only mentioned her sexual orientation when discussing four of the 12 best-interest factors. In discussing factor C — the plaintiff’s capacity and disposition to provide for the child’s material needs — the court included her partner’s income. In discussing factor E, the permanence of the family unit, the court observed that plaintiff and her partner may face societal pressures because of their relationship, but concluded that they are sufficiently mature and wise to deal with the burden. The court concluded that the parties were equal concerning both these factors.

In a 1980 case, Irish v. Irish, the appeals court affirmed the trial court order that allowed the lesbian mother visitation with the condition that no intimate sexual conduct was to take place between her and her lover in the children’s presence and that the children could not stay overnight if the lover did.

In another 1980 case, Hall v. Hall, the trial court granted the father custody. The mother appealed, arguing that the court found her unfit because she was in a same-sex relationship. The appeals court found that the trial court “fully and fairly considered all of the evidence … we are also persuaded that the trial court correctly regarded the [mother’s] homosexuality as only one factor in its determination of moral fitness. Consideration was clearly given to [father’s] lifestyles as well in this regard.” In this case, it was found that the mother would choose her partner over the children.

Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.

Custody for Same-Sex Co-Parents
Keep in mind for this section that Michigan courts are not likely to grant custody rights to the non-biological parent of a child without first finding the biological parents to be unfit.

Michigan law states: “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 six months; or (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.”

In one 1995 case, McGuffin v. Overton, Leigh and her children moved in with Carol until Leigh’s death. Leigh had executed a power of attorney delegating all of her parental powers to Carol and also purported to make Carol guardian of the children in her will. The father of the children petitioned for custody and asserted that Carol did have standing to ask for custody. The trial court agreed that Carol did not have standing to ask for custody. The appeals court agreed, noting that the Legislature has been very specific in limiting those third parties who may bring action for custody, and until the state Supreme Court or Legislature states otherwise, Carol and people similarly situated do not have standing to petition for custody unless they gave been appointed guardian or meet the other criteria listed in the state custody law.

Citations: MICH. COMP. LAWS § 722.23; MICH. COMP. LAWS § 722.25 Sec. 5; Ulvund v. Ulvund, 2000 Mich. App. LEXIS 946 (Mich. Ct. App. 2000); Irish v. Irish, 300 N.W.2d 739 (Mich. Ct. App. 1980); Hall v. Hall, 291 N.W.2d 143 (Mich. Ct. App. 1980); MICH. COMP. LAWS § 722.26c; McGuffin v. Overton, 542 N.W. 2d 288 (Mich. Ct. App. 1995).

Child custody

ALI (American Law Institute) Principles prohibit the court from considering either the extramarital sexual conduct or the sexual orientation of a parent except upon a showing that such conduct causes harm to the child. ALI Principles §2.12(1)(d).

A parent’s homosexual conduct plays a role in custody decisionmaking. Courts take 3 basic approaches:

1.         homosexuality is evidence of parental fitness per se
2.         homosexuality leads to a presumption of adverse impact that can be rebutted by the parent’s showing of absence of harm;
3.         Custody will be denied only if the parent’s sexual orientation has or will have an adverse impact on the child. This is the emerging trend and the view of the ALI Principles.

Custody (hetero to GLBT relationship):
Initial Child custody:
24A Am Jur 2d Divorce and Separation §937
62 ALR 5th 591                       

Modification of Child custody:
24A Am Jur 2d Divorce and Separation §937

Custody (GLBT relationship):
Traditionally courts have not been receptive to recognition of co-parenting rights after dissolution of a lesbian relationship. See Nancy S. v. Michele G, 279 Cal. Rptr. 212 (Ct. App. 1991); Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991); Titchenal v. Dexter, 693 A.2d 682 (Vt. 1997). Some evidence suggests that the traditional judicial attitude has begun to change. See J.A.L. v. E.P.H., 682 A.2d 1314 (Pa. Super. Ct. 1996)

De facto parental status. ALI principles require that a person regularly perform an equal or greater share of caretaker responsibilities as the parent with whom the child primarily lived, lived with the child for a period not less than 2 years, and acted as a parent for non-financial reasons and with the agreement of the legal parent. ALI Principles §2.03(1)(c).

Visitation (hetero to GLBT relationship):

Visitation:
24A Am Jur 2d Divorce and Separation §975  

Visitation (GLBT relationship):
Traditionally courts have not been receptive to recognition of co-parenting rights after dissolution of a lesbian relationship. See Nancy S. v. Michele G, 279 Cal. Rptr. 212 (Ct. App. 1991); Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991); Titchenal v. Dexter, 693 A.2d 682 (Vt. 1997). Some evidence suggests that the traditional judicial attitude has begun to change. See J.A.L. v. E.P.H., 682 A.2d 1314 (Pa. Super. Ct. 1996)

De facto parental status. ALI principles require that a person regularly perform an equal or greater share of caretaker responsibilities as the parent with whom the child primarily lived, lived with the child for a period not less than 2 years, and acted as a parent for non-financial reasons and with the agreement of the legal parent. ALI Principles §2.03(1)(c).

Additional Resources:
There is a publication you can find off the ACLU’s website entitled “Too High A Price: The Case Against Restricting Gay Parenting” that could also provide some helpful additional arguments. The publication briefly outlines a number of research papers or studies that tackle various arguments that are sometimes made when the issue of “gay” parenting comes up.  It can be found at: www.aclu.org/lgbt/relatedinformation_publications.html.

A hard copy of it can be requested from ACLU by mail using the following address: ACLU, 125 Broad Street, 18th Floor, New York, NY 10004.

FORMS:

Designation of Patient Advocate - Health Care & Mental Health Treatment, HIPAA Authorization, Anatomical Gift Authorization

DEFINITIONS:

For some definitions of terms commonly associated with the GLBT community, visit Outfront Minnesota's website at: http://www.outfront.org/library/definitions.html.

THIS WEBSITE IS MEANT FOR INFORMATIVE PURPOSES ONLY. IT DOES NOT CONSTITUTE LEGAL ADVICE.