Same-Sex Marriage Cases Go Constitutional

A federal law suit filed last year by two California same-sex couples (one gay; one lesbian) has raised constitutional issues in the gay marriage context and is unfolding in a momentous trial.  In Massachusetts, another federal case tests whether a federal statutory provision that draws a sexual-preference distiniction is constitutional.

The complaint in Perry v Schwarzenneger, filed in the Northern District of California and assigned to Judge Vaughn R. Walker, has high-powered lawyers seeking far-reaching relief for the rights of (gay) individuals.  The case is another chapter in the tumultuous world of 21st Century Californian sex-gender politics.  The "all-in" nature of the Perry case, however, will have effects that touch most families in America.

You may or may not recall that back in 2004, the newly-elected young and dashing San Fransisco mayor Gavin Newsom made an international splash by presiding over same-sex civil marriage ceremonies conducted at City Hall.  The California Supreme Court squashed the practice in about 30-days, voiding all the marriage licenses issued as a result of Gavin's project.

In a May 2008 change of course, the California Supreme Court decided (4-3) the case known as In Re Marriage Cases, holding that any California laws, "that treat persons differently because of their sexual orientation should be subjected to strict scrutiny..."  The California high court decision struck down proposed state legislation seeking to ban same-sex marriage on the grounds the initiative violated the California constitution.

Six months later, in yet another change of course, the California electorate (narrowly) approved Proposition 8, defining marriage as between opposite-sex couples only.  The California Supreme Court swiftly followed suit in Strauss v Horton, upholding the passage of Proposition 8, but applying that referendum prospectively, thereby preserving the approximately 18,000 marriages that had been performed prior to the passage of the referendum; and perhaps unwittingly creating an arbitrary class of persons to which other gays can point in an equal protection analysis.

Enter the lesbian couple Kris Perry and Sandy Stier (Berkeley) and gay couple Paul Katami and Jeff Zarrillo (San Fernando Valley), pictured in the above link emerging from the federal courthouse following the first day of court proceedings.  The couples, very carefully selected by well-funded and well-connected gay rights activists, were apparently up for the arduous task of prosecuting constitutional federal litigation.  Neither couple were among the tens of thousands to take advantage of the narrow 6-month window to obtain a marriage license in mid-2008, making them ideal constitutional-litigants.

Some gay rights activists have criticized the suit as premature and ahead of the public opinion curve on the same-sex marriage issue.  While the concept seems to be gaining ground in abstract opinion polls, to date, only 5-states allow same-sex marriages:  Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont.  On the other hand, 29-states (including Michigan) have amended their Constitutions to outright ban gay marriage by defining a marriage as between a man and a woman.

Many in the front-lines of the gay rights movement prefer the slower, state-by-state approach to "resolving" the same-sex marriage issue.  They worry that the Supreme Court could hand their movement a serious setback by issuing a neutral or worse, an anti-gay, decision along the lines of the 1986 Bowers v Hartwick decision (upholding a Georgia sodomy law on the basis there was no constitutional protection for sexual privacy).  It took the high court 17-years to reverse the dubious Bowers decision in the seminal 2003 case of Lawrence v Texas, which expressly overruled their prior decision as defining the liberty and privacy interests of two consenting adults too narrowly to survive a Due Process analysis.

There is also a notion that gay-marriage was removed via the ballot box and that's where the battle should be won.  In our Democracy, however, core individual rights (once defined) are not subject to the ebb and flow of majority rule.

Other gays are tired of waiting, however, genuinely offended by the series of referendums passed which discriminate against their sexual orientation.  For example, California already has a progressive civil union statute to protect property rights and employment benefits.  But the Perry case is about much more than property rights and benefits; it is about individual liberty and the sacred right to chose one's life partner, one's spouse, without interference from the state.  Court watchers equate the Perry case to that of Brown v Board of Education (abolishing the "separate but equal" fallacy in public schools) and Loving v Virginia (holding that a state could not prohibit interracial marriages).

Whatever the outcome of the trial, an intermediate appeal to the Ninth Circuit is guaranteed to send this one to the United States Supreme Court.  Plaintiffs are represented by the unlikely but outstanding duo of Ted Olson and David Boies of Bush v Gore fame.  The former represented Bush as Solicitor General; the latter represented Vice President Al Gore in the famous case settling the 2000 presidential election.

Olson's conservative credentials have led some to wonder whether he is serving as a "double agent" planted to hand the movement a serious setback at the high court.  Olson should be taken at his word, however, when he states that, separate is not equal and that a "civil union" is not the same as a marriage.  With 44-wins already before the high-court, Olson likes his chances at that level and genuinely believes he's on the correct side of this issue.

In the meantime, the Perry case has already been to SCOTUS; Judge Walker's decision to televise the trial on YouTube was appealed from the other end of the state by Senator Dennis Hollingsworth.  The appeal stayed the trial judge's decision to stream the trial to the Internet and subject all of us to reading about the case, or suffering through a painful re-enactment of the trial.  Several key depositions (Paul Nathanson and Katherine Young) taken last fall, however, have been leaked to YouTube, and effectively convey the background surrounding what is shaping-up as our next great civil rights struggle.

5-votes will be required to establish precedent once a writ of certiorari is inevitably issued by the high-court in the case.  Olson and Boies will probably need to persuade Justice Anthony Kennedy, an oft-breaker of ties at the Court.

SCOTUS-watchers figure the so-called liberal bloc of Justices (Ruth Bader Ginnsburg, Sonia Sotomayor, Stephen Breyer, and John Paul Stevens) will vote to condemn Proposition 8 as unconstitutional on Equal Protection grounds.  Since Justice Stevens announced his retirement on Friday, effective at the close of this session of the Court in June, President Obama's second high-court nomination takes on critical importance in the Perry case.  Justice Stevens' replacement will most-likely be a confirmed sitting Justice by the time Perry is on the high-court's docket sometime in 2012; the day-after-tomorrow from the Supreme Court's usual long-range perspective.

Of note:  Perry is not the only "gay-rights" case percolating through the federal courts at the moment.  Also destined for certiorari is Gill v Office of Personnel Management.   That case presents a more narrow constitutional challenge to a specific provision of the Defense Against Marriage Act preventing same-sex couples from receiving benefits that other non-gay federal employees receive for their families.

Plaintiff's counsel in Gill, Mary Bonauto, prevailed in the Massachusetts case that legalized gay-marriage.  While Bonauto acknowledges that her more-recent federal case is not the left-coast headline-generator that Perry is, she is mindful that both cases seek to expose the federal government's "double standard" when it comes to same-sex marriage; the feds recognize a wide-variety of marriages once they are licensed by a state, except in the case of gay-marriages.  Bonauto and other legal professionals fear that Perry seeks too momentous and far-reaching relief; the decision, after all, could invalidate anti-gay-marriage laws in nearly 40-states.

Michigan Connection:  In addition to those of us who have a family member involved in a same-sex union (my brother) or who are themselves involved in such a union, the left-coast Perry case could invalidate the 2004 Marriage Amendment to Michigan's constitution.

Also, the electronic divorce attorney (yours truly) will be admitted to the bar of the United States Supreme Court on the final day of this session, June 21st; Justice Stevens' final day of his long career on the high-court.

Stay tuned for the outcomes of these cases folks as we strive to keep you informed of significant developments.

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Child Support Still Owed When Parental Rights Involuntarily Terminated

There has been some buzz among family law practitioners this week concerning the Michigan Court of Appeals' decision in the DHS vs Beck case.

The COA held that a father, so neglectful and abusive that his parental rights were terminated, nevertheless remained obligated to pay child support for his two children.  The decision, arising from an Oakland County abuse case, will be published and thus binding on all Michigan family courts.

The father did not appeal the termination of his parental rights; only the family court's ruling that he remained obligated to pay support for his children.  On appeal, the father argued that he was denied due process because he was arbitrarily deprived of his property (i.e. his support payments).  The intermediate appellate court, however, was unimpressed, ruling that the father failed to articulate how, exactly, his due process rights were implicated.

One of the issues to arise in the Beck case was that the parental termination provisions of the Juvenile Code are silent as to the corresponding "parental responsibilities".

The Court went on to analyze the rights and duties implicated by a family court's decision to terminate parental rights while continuing to obligate support payments.  Michigan common law has long established a minor child's right to support from both parents.  The Court also recognized a parent's right to the "companionship, care, custody and management of his or her children."

In upholding the Oakland County Family Court, the COA ruled that a child's right to support cannot be bargained away in a termination proceeding.  The Beck panel decided that if the legislature had intended to terminate a parent's obligations along with his parental rights, it would have said so in the statute.

The Court also relied on it's earlier decisions that held support obligations continued in the wake of a voluntary termination or adoption.

Also of note in the dicta of the Court's decision was an express acknowledgment of the current "times of difficult financial circumstances."  The Beck panel realized that in such difficult economic times, public policy is served by not shifting all support and maintenance obligations onto the custodial parent or, in some cases, the state.

Finally, in deciding the case, the COA was careful to avoid the unintended consequence of encouraging the neglect and abuse of innocent children by seeking a parental termination.  Since an irresponsible parent cannot escape his support obligations by abusing or neglecting his children, the better interests of those children are served.

This is a sound decision by the intermediate appellate court.  Good thing the COA granted father's delayed application for leave to appeal (a discretionary appeal as opposed to an appeal of right).  Making a parent pay for their children despite their neglect is in both the child's and the community's best interest.

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No Joke: What's the Difference Between a Divorce and a Tatoo?

This blog post is from the SBM Blog and is the original content of the State Bar of Michigan.

As Michigan lawyers go about the work of convincing our state legislators that a tax on legal services would be a fundamental and costly mistake (see "Unfair, Unwieldy, Unwise, Unethical, and Unconstitutional"), we face the same response again and again:  "if we exempt one service we have to exempt them all."  In Georgia, policymakers are also gearing up for a tax on services, and a recent white paper from Georgia's venerable Tax Foundation asks: "Can anyone really keep a straight face while justifying a tax exemption for legal services, tattoos, haircuts, car repair,health club memberships and other common services?"  Well, we can.  In fact, we wonder how serious policymakers can keep a straight face equating legal services with personal grooming and adornment services.Bottom line: government shouldn't tax behavior that is good for society. We're all better off when people get the legal advice they need to secure justice or comply with the law.  Tatoos, not so much.

UM Law School Challenges Constitutionality of Felony Child Support Statute

The mighty UM Law School has its hands all over the recent constitutional challenge to the felony child support statute.  The case was originally charged by UM Law Alumni and Michigan Attorney General Mike Cox.  The appellant-defendant in the case is represented by the Michigan Innocence Project, run out of the UM Law School by Professor David Moran.

The case, People vs Likine, was the subject of a one-day jury trial in the Oakland County Circuit Court back in November 2008.  Years earlier, Selesa Likine was ordered to pay child support for her three minor children pursuant to her divorce proceedings; also in Oakland County.  The criminal case against Likine charged that she fell behind on the support payments from 2005 through 2008, creating arrears in the amount of nearly fifty thousand dollars.

Ms Likine attempted to assert the defense of an "inability to pay" the support ordered by the family court.  She claimed disability via the Social Security Administration stemming from her diagnosis of Schizoaffective Disorder and Major Depressive Disorder.  Likine also asserted that she was unemployed due to a lengthily hospitalization at the beginning of the charging period.  She further claimed that her support obligation was erroneously calculated by the family court, as it was based on a "phantom" imputed income of $5000 per month; a wage she claims she never earned in her entire life.

The felony child support statute is one of strict liability.  The Michigan Court of Appeals ruled in a 2004 published case (People v Adams) that a defendant cannot assert a defense at trial of his or her, "inability to pay" the court-ordered child support.

Accordingly, in the Likine case, the Attorney General requested trial judge John McDonald to preclude Likine from introducing any of the above facts regarding her disability and resulting lack of income from jury consideration.  The AG's motion was granted based on the Court of Appeals' Adams ruling.

Just prior to the beginning of her criminal trial, Likine's attorney moved for reconsideration of Judge McDonald's evidentiary ruling; this time arguing that precluding her from presenting evidence of her "ability to pay" and of her employment history, violated Likine's constitutional Due Process rights under the 14th Amendment to the United States Constitution.  The motion was again denied.

Not surprisingly, Likine was convicted by the jury of failing to pay court-ordered child support and sentenced to one-year probation.  When the jury was deliberating her case, however, they sent out a note to Judge McDonald asking for information about Ms Likine's employment history.  Due to his earlier rulings in the case, Judge McDonald refused to answer the jury's query.

Following her jury trial, Likine secured appellate representation from UM's Professor Moran, who filed a motion for new trial; this time asserting that Likine's conviction violated the Michigan Constitution.  McDonald, stating that he sometimes disagreed with the Court of Appeals' Adams decision, nevertheless denied the motion.

In her appeal currently pending before the Michigan Court of Appeals, Likine relies on a Michigan Supreme  Court decision from 1889 which held that statutes cannot criminalize conduct which, through no fault of the defendant, is impossible to avoid.  Professor Moran asserts that such a criminal law lacks the requisite, "voluntary actus reus" (bad act).

Along the same lines, Professor Moran raises a claim of violation of federal Due Process under the U.S. Constitution.  In this fashion, Likine argues on appeal that the Court of Appeals' Adams decision wrongly eliminates the actus reus requirement of the felony child support statute, rendering it unconstitutional on its face.

In response, the Attorney General asserts that Adams remains controlling in felony child support convictions. The AG's argument is that the Michigan Constitution is not offended when a "prior judicial determination" establishes a payment obligation for which it is a crime to ignore.  Since Likine's support obligation was established by the family court, she was afforded Due Process.

In a somewhat surprising move given the high-powered counsel on both sides, the Court of Appeals has submitted the case to a 3-judge panel for decision without the benefit of oral argument.  The order to dispose of the case solely on the briefs was issued last week, despite both sides filing timely briefs which requested oral argument.

The losing side on this one will probably try to take the issue before the Michigan Supreme Court.

Update:  The Court of Appeals "changed its mind" and, on its own motion, granted the parties a very brief oral argument on March 4, 2010; ten minutes for each side.

The Court of Appeals issued it's unpublished per curiam opinion affirming Defendant's conviction on grounds her constitutional right to Due Process was not violated.  The Court held that, because she availed herself of numerous hearings in the family court, she was afforded Due Process.

When I discovered this opinion had been issued, I contacted Professor Moran to get his take on the result.  He simply stated that he did not believe the panel fully understood the facts of Ms. Likine's case.  Also, Professor Moran said he was applying for certiorari to the Michigan Supreme Court and then, if necessary, on to SCOTUS.

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2009 Michigan Child Custody Update

This post summarizes some of the more interesting 2009 family law decisions from the Michigan Court of Appeals dealing with child custody.

In 2009, the Court of Appeals looked at the interplay between the juvenile code and the child custody act in two important cases.  The first case discussed was published and thus binding precedent; the second case is unpublished and does not bind subsequent courts in Michigan.

In a case from Wayne County, In the Matter of A.P., Mother had sole custody of her child from a paternity action.  She was accused of abusing the child.  The resulting juvenile proceedings re-introduced the child’s biological father into the child’s life.  In the lengthily proceedings, the juvenile court’s rulings intersected and conflicted with prior orders from the family court.

The Court of Appeals held that the juvenile court supersedes the family court:

Once a juvenile court assumes jurisdiction over a child and the child becomes a ward of the court under the juvenile code, the juvenile court’s orders supersede all previous orders, including custody orders entered by another court, even if inconsistent or contradictory. In other words, the previous custody orders affecting the minor become dormant, in a metaphoric sense, during the pendency of the juvenile proceedings, but when the juvenile court dismisses its jurisdiction over the child, all those previous custody orders continue to remain in full force and effect. 

 DHS v Gunther is significant as it also addresses jurisdiction via the juvenile code over children that are already under the jurisdiction of the family court.  In this case, Mother had “physical custody” of the parties’ children resulting from a divorce judgment.

The Gunther children came to the attention of DHS due to school truancy allegations resulting in temporary placement of the children with their father.  Mother moved for their immediate return, asserting that the juvenile court referee could not alter the children’s “established custodial environment” without first conducting a hearing, as required by the Child Custody Act.

Again, the Court of Appeals held that once a juvenile court assumes jurisdiction over a minor pursuant to the juvenile code, the juvenile court’s orders supersede all other previous orders; including those issued from a family court.

In Pobanz v Pobanz, the Court of Appeals decided the issue of whether a 17-year old could be court-ordered to participate in parenting time within the context of a custody challenge.  As in the two other cases discussed in this post, Pobanz also featured a co-occurring neglect petition in the juvenile court. 

The trial court stated that it would not force a 17-year to participate in parenting time when she stated that she did not want to see her Father.  Although the Pobanz panel agreed with the trial court that a seventeen year old’s reasonable custody preference is given wide-deference, it held that the lower court erred by not conducting an evidentiary hearing to determine whether the many other statutory factors supported the decision.  The case was sent back to the Huron County Family Court to conduct the hearing.

Surprisingly, the Court of Appeals allowed the trial court to change judges based on the subsequent juvenile case.  The family court judge was first assigned to the Pobanz family in the divorce proceedings, but the trial court transferred the divorce, and Father’s custody motion, to the judge presiding over the subsequent juvenile proceedings.

This ruling is interesting in that it seems to violate the “one family, one judge” concept set forth in 1996 with the creation of the family courts across the state.  According to the reorganization statute, multiple cases involving the same family were all to be assigned to the first judge in the county assigned to that family.

In Bonner v Bonner, the Court of Appeals decided the issue of whether a child could be compelled to testify at hearing on his parents’ competing change of custody motions.  The case featured the open-court testimony of the parties’ minor child, limited to matters of alleged abuse by the Mother.

The case is most interesting for featuring the testimony of a well-respected psychologist that had observed the parties and child at the court hearing(s).  The psychologist then provided testimony to the family court as to his observations of both parents and the child.  Note: The family court judge did not find the child’s testimony about the conditions of his Mother’s home to be credible.

Also, the case is significant in that a child was compelled to testify in order to satisfy his parents’ right to due process.  Unlike in camera testimony of children called into a judge’s chambers to express their custodial preference under seal, this case featured the open-court testimony of a son against his own Mother.

Next, the Court of Appeals, in Roguska v Roguska, examined whether a family court could reject a settlement agreement on custody reached at court-ordered mediation by both parties and their respective attorneys.  In that case, the Mother subsequently attested that her husband lied during mediation, that she and her husband had serious communication problems, and that she subsequently obtained a PPO against the husband.

The Roguska panel held that such facts freed the family court from having to follow the settlement agreement on the custody issue.  In cases of domestic violence, arbitration and mediation are allowed, but disfavored due to the coercion that can sometimes be brought to bear against the victim of abuse.

The case of Hoeve v Hoeve continues the series of Court of Appeals decisions holding that the parents' school-district decision may be, by itself, proper cause to change custody.  In Hoeve, the pre-school child spent week-on-week-off with mom and dad.  Father sought and was awarded sole physical custody, however, once the child became eligible for kindergarten.

The parents lived about 70-miles apart.  Father's motion to acquire sole physical custody succeeded at trial and was affirmed on appeal.

According to family law appellate attorney Scott Bassett, the Hoeve case suggests that parental school choice disputes is the "new frontier" in child custody litigation.

This is a summary of what came out of the Court of Appeals on matters of custody in 2009.  Many other decisions addressed the important issues of domicile and parenting time which will be addressed in future posts.

Only time will tell what 2010 will bring.

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Washtenaw County Guardianship Spotlights Problematic Surrogacy Arrangements

A recent Washtenaw County Probate matter received national attention over the weekend by appearing on the front page of the Sunday NYT, in an "above-the-fold" article by Stephanie Saul.  The guardianship case involved a surrogacy contract between a Kent County couple and the surrogate mother from Ypsilanti.

Amy Kehoe and her husband contracted with both egg and sperm donors, then arranged for Laschell Baker to serve as the gestational surrogate.  The Grand Rapids couple located Baker from the surromomsonline web site.  The would-be parents also contracted for services with IVF Michigan, a fertility clinic.

Neither the Kehoes nor Ms. Baker had any legally recognized biologic connection to the babies; twins born in July.  The babies spent their first month with their would-be parents, the Kehoes, but were then removed by the surrogate's successful probate petition for temporary guardianship.

Problems arose when the Kehoes appeared in the Washtenaw Probate Court for the agreed upon guardianship transfer from the surrogate to the Kehoes.  According to the NYT, Mr. Kehoe disclosed at the hearing that his wife had been treated for a mental disorder. 

In Michigan, the Surrogate Parenting Act prohibits contracts for gestational surrogacy services in exchange for fees as void on public policy grounds.  In addition, surrogacy for profit is a five-year felony.  The Act does not create parental rights for would-be parents who arrange for the creation of a baby.

In 1992, the Michigan Court of Appeals upheld the constitutionality of the Act in the case of John Doe -v- Michigan Attorney General, holding:

As overwhelmingly repugnant as the thought may be, unbridled surrogacy for profit could encourage the treatment of babies as commodities. Whatever sense of idealism that may motivate a fertile woman into hosting a pregnancy for an infertile couple is rent asunder by the introduction of the profit motive. It could be only a matter of time before desirable, healthy babies would come to be “viewed quantitatively, as merchandise that can be acquired, at market or discount rates.” O'Brien, Commercial Conceptions: A Breeding Ground for Surrogacy, 65 NCLR 127, 144 (1986). As the New Jersey Supreme Court commented in In re Baby M, 109 N.J. 396, 440, 537 A.2d 1227 (1988): “In a civilized society, there are some things that money should not be able to buy.” In our opinion, babies ought to be one of those things.

Ohio's Ninth Appellate District, in J.F. -v- D.B., 116 Ohio St 3rd 363 (2007), discussed but declined to follow the Michigan Court of Appeal's Doe case.   To date, only California allows enforcement of surrogacy contracts where the inchoate parents have no biological connection to the baby.

In the Washtenaw County case, the surrogate mother denies there was a commercial surrogacy contract, claiming she carried the twins gratutiously, only seeking reimbursement for her medical expenses.  Ms. Kehoe disputes this, blames Michigan's poor laws on this subject, and views Ms. Baker as a child-thief.

The Washtenaw Probate case draws attention to the lack of laws or guidelines relating to custody issues for children born under such circumstances.  In this case, although neither set of competing parents had a biological connection to the child, although neither set of parents filed for adoption, the surrogate was awarded custody.  

Ms. Kehoe has stated that her health issues are under control, but can no longer afford a sustained legal challenge to the surrogate's petition for guardianship of the twins.  She also claims that lawyers have advised her that custody of the twins is unlikely.  For her part, Ms Baker asserts that she never would have agreed to be the gestational carrier had she known about Kehoe's mental health history.

The case begs the question: does a surrogate mother have parental rights superior to those of a would-be parent that contracts for the creation of an infant?  Intermediate appellate review of the Washtenaw Probate Court, or perhaps some different procedural maneuvers, could have improved Kehoe's chances for temporary guardianship and possible custody.

This issue is sure to surface repeatedly in the context of gay couples, as the battle over gay marriage is waged on a state-by-state basis.  More gay couples want to complete their families with children of their own.  Surrogacy and adoption are the primary means to this end.  For an excellent introduction on the subject of gay surrogacy agreements, view this NYT video clip.  The American Bar Association, offering assistance to state legislatures and family court judges, has published a Model Act Governing Assisted Reproductive Technology.

Updates: The NYT's Ms. Saul stays on the case, reporting on a decision issued in the New Jersey surrogacy case over the holidays.  The New Jersey family court judge ruled that the gestational surrogate was the "legal mother" thus, she had the right to challenge custody of the twin girls she delivered in 2007.  Also see Nathan Koppel's posting on the case in the WSJ's Law Blog.  Stay tuned on this one, as the trial is scheduled for this spring.

With the 21st Century marching forward, some of our more traditional institutions, i.e. "family" and "marriage", are coming under pressure to evolve; to become more inclusive and less exclusive.  Litigated surrogacy contracts are but one marker in this social evolution.

What will the definition of "Mother" be at the end of this new decade?

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Michigan Family Law Updates

Over the past several months, as Michigan and the nation grind through a sustained recession, many articles have appeared pointing to the trend of couples staying together, despite a doomed marriage.  The fact is, divorce is very expensive. 

In the attached article from the Star-Ledger (New Jersey), Attorney Susan Reach Winters answers the editor's questions on this tough subject.  The article focuses on some of the financial aspects of divorce and provides some common-sense answers that readers of this blog may find quite useful in the -painful- contemplation of a divorce proceeding. 

Setting aside the costs of divorce; what about the pain caused when a child results from an ill-fated union between two people, when the woman is married to another man?  This is the subject of a recent Detroit News article, covering a few heart-breaking cases here in Michigan, as well as a proposed change in Michigan's Child Custody Act (CCA).

Currently under the CCA, if a child is born during an intact marriage, and the biological father is not the husband, the bio-dad has no standing in court and thus, no rights to parent his child whatsoever, unless and until a divorce action is filed.  Even in cases where a divorce is filed, the rights of a bio-dad are limited should the bio-dad intervene in the divorce proceeding. 

The bill, introduced by Sen. Michelle McManus of Leelanau County, proposes giving biological fathers a short window (one-year) to bring a proceeding in family court to assert his rights as the father of a child.  Positive DNA results would be required along with a showing that the mother was separated from her husband at the time of conception.  The latter requirement, if added to the Child Custody Act, will guarantee plenty of work for family law attorneys.  Currently, the bill is being vetted by the State Bar of Michigan's Family Law Counsel.  Thus, it may be some time (years) before the CCA is amended along these lines.

If you have family law issues, and you want answers, contact our firm to discuss your options.

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