Wednesday, April 21, 2010

Michigan court finds nonbio mom a parent if evidence supports agreement with bio mom

Last month I blogged about Renee Harmon's efforts to maintain her relationship with the 10 year old girl and 7 year old twin boys born during her 19 year relationship with their biological mother, Tammy Davis. Well last week, Michigan Family Court Judge Kathleen McCarthy ruled that Renee will have the opportunity to prove that "an agreement was made to bring these children into this relationship to be jointly raised by these parties." If she can show this by clear and convincing evidence, the court will hold a hearing on custody based on the children's best interests. (To read the court ruling, click on this news story and then on the PDF link to the right of the story.)

Judge McCarthy reviewed the numerous Michigan statutes and court rulings that make a nonbiological father the "natural parent" of a child. Michigan has recognized a nonbiological father as an "equitable parent;" cases following the doctrine of "equitable estoppel" have also refused to permit a man to escape the responsibilities of parentage when he raised a child as his own knowing he was not the child's biological father; a man is also treated as a child's "natural parent" if he and the mother sign an acknowledgement of his parentage.

The court concluded that the thread throughout the statutes and case law is "the existence of an obligation to undertake the responsibilities of a parent as to the child." The court found the status of being a "natural parent," however achieved, a permanent status, constitutionally protected, that can be terminated only under the same circumstances as a biological parent.

The judge noted that a fit biological parent possesses the constitutional right to make childrearing decisions, including the decision that another individual will become the parent of her child. A woman does this, for example, when she marries a man that both she and he know is not the biological father of the child she will give birth to. If Davis exercised her constitutional right to enter into a parenting agreement with Harmon, the court ruled, she cannot unilaterally dissolve the parent-child relationship to the detriment of both Harmon and the children.

According to a news report, Davis plans to appeal the ruling, but the trial judge has refused to stay the order pending appeal.

Of course all of the cases cited in the ruling concern nonbiological fathers. I was half-expecting Judge McCarthy to offer an Equal Protection analysis requiring equal treatment of nonbiological fathers and nonbiological mothers. She did not do this; she just applied the principles in the cases in a gender-neutral manner. If Davis's lawyer argues on appeal that the precedent should be limited to men, I hope Harmon, and perhaps a friend-of-the-court brief, argue the point made so eloquently by expert psychologist Michael Lamb at the Perry v. Schwarzenegger trial:

There is now a significant body of evidence documenting that ... what's important for children's development and adjustment is the quality of the parenting that they obtained from the people who are raising them, and that the gender is not one of those important dimensions.

Because children can (and many do) have two parents of the same gender, the Michigan appeals court should apply the many ways a nonbiological father can be a "natural parent" to this nonbiological mother, Renee Harmon. Equal Protection demands it, and, more importantly, the best interests of these children demands it.

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