You know how when judges run for office, they promise not to “legislate from the bench?” Well, the truth is that judges have to legislate from the bench every day. That’s because laws don’t have enough detail to answer every possible situation that could ever happen in real life. Judges are often called to answer the question of: “But what about in this case? The law doesn’t say what should happen when…”
Case on point: homosexual marriages. Homosexual marriage is legal in every state. And the law doesn’t say what should happen when a homosexual marriage ends in divorce, with minor children.
Does the non-biological parent have a right to seek custody? What about an obligation to pay child support? What about the biological father? Does it make a difference if the biological father had sex with the mother, or if the mother conceived using a fertility clinic, or if she saved herself some cash and found the goods on craigslist?
As these cases come through the legal system, courts seem to be answering the question in different ways.
A Kansas court recently ruled that a craigslist sperm donor is not on the hook for child support. The court said that the biological mother’s ex wife is the child’s other parent. Kansas has a law that protects sperm donors, but only in the event they go through a fertility clinic. So the fact that craigslist donor isn’t on the hook for support makes this court’s decision is a landmark case for the Sunflower State.
California went the opposite way, and ruled that a child may have more than two legal parents. If the court believes that an arbitrary limit of two legal parents is detrimental to the child, then why not name them all legal parents, they decided. The court can fashion parenting time for all the parents, and split child support obligations among them.
It looks like Michigan is going to end up more like Kansas than like California. In 2015, the Michigan Court of Appeals ruled in Milliron v Milliro. The court said that the ex-wife of a biological mother has both the rights and obligations of a legal parent. She may seek custody or parenting time, and she must pay child support as ordered.
The court decided that a situation like this is like a case where a husband is not the biological father of a child born during the marriage. In that case, the rule is that where the husband has acted like the father and wants to continue to be the father, he can have father status, as long as he is willing to pay child support.
The Milliron case did not say anything about the biological father. The Milliron case was silent on whether Michigan will ever recognize more than two legal parents. But, in other places, Michigan law references a child as having two parents (MCL 722.26a(3) says that a child should have continuing contact with “both” parents).
One of the fun things about practicing law is that the law always changes and grows. At Razavi Law, we seek to help you protect and exercise your full rights under the law. To set up a consultation to discuss your rights, contact us.