Michigan Appeals Court Says Trial Court Cannot Refuse to Hear Lesbian Mother's Custody Case

(Detroit, MI, February 20, 2009) — The Michigan State Court of Appeals yesterday held that a Michigan family court cannot refuse to hear a child custody case simply because it involves children whose parents are lesbians, ruling that there is no gay exception to Michigan's child custody laws.

The majority opinion said: "The question is really whether Michigan's legal framework for protecting and promoting the best interests and welfare of the children within its jurisdiction excludes children with a parent or parents who could not have adopted them under Michigan law. We conclude that it does not....The only relevant consideration in this matter is each individual party's established relationship as an adoptive parent with the children, not their relationship with each other."

"It is well established law that Michigan courts must put the best interests of children first and decide child custody cases without regard to the sex, sexual orientation, or marital status of the parents, or whether they adopted their children in another state — there is no gay exception," said Camilla Taylor, Senior Staff Attorney in Lambda Legal's Midwest Regional Office in Chicago. "We are pleased that the appeals court refused to credit the argument that Michigan's antigay constitutional amendment deprives courts of the ability to do what's best for children.

Lambda Legal and the American Civil Liberties Union of Michigan represent Diane Giancaspro, a lesbian mother who, in August 2007, filed papers asking a Michigan trial court to determine custody of the three children she and her ex-partner, Lisa Ann Congleton, adopted together in Illinois before moving as a family to Michigan. When the couple's relationship ended, Congleton moved to dismiss Giancaspro's custody case, arguing that their adoption was invalid under the Michigan Child Custody Act and citing Michigan's antigay constitutional amendment. In September, the trial court granted Congleton's motion, holding both parties' parental rights unenforceable in Michigan, calling into question whether the children were effectively orphans in Michigan and whether both parents would be able to do such essential things as authorize medical treatment at a public hospital, enroll them in school, or recover a lost child from a local police department.

The trial court's ruling left the children in legal limbo, without an enforceable legal connection to either parent. In March 2008, Lambda Legal and the ACLU of Michigan filed a brief with the Michigan Court of Appeals asking the court to reverse the trial court's ruling, arguing that it violated the Full Faith and Credit Clause, which protects the validity of judicial decrees — such as adoptions — across state lines, and pointing out that Michigan's antigay amendment limiting marriage pertains only to adult relationships — and has no effect on a court's ability to hear cases that concern only relationships between parents and children, such as custody cases.  Today's ruling is based on the federal Full Faith and Credit clause and upholds long–standing Michigan law which has always interpreted these matters in the best interests of the children.

 "This is a victory for children in Michigan," said Kary L. Moss, ACLU of Michigan Executive Director. "We are thrilled that the appeals court has reversed the trial court's decision.  Concluding that children of gay parents have no protections in Michigan's courts was not only wrong, but extremely dangerous. Today gay parents and their children can rest easier knowing that they again have access to Michigan courts."

"My concern is the well–being of my children. I want them to live in a place where their rights are protected," said Giancaspro, "I'm relieved that we can go on with our lives without worrying every day about whether I'll be recognized as their parent and able to protect them if, heaven forbid, anything should happen to them."

This is the second appeals court in the nation to address whether an antigay constitutional amendment concerning marriage has any impact on the parenting or custodial rights of gay men and lesbians.  In June of 2008, Lambda Legal won a similar case before an appeals court in Ohio.  In that case, In re JDF, a lesbian mother argued that Ohio's antigay constitutional amendment concerning marriage rendered the agreement she had obtained years earlier to share custody of her son with her former partner unenforceable.  As in this case, the court brushed aside her argument about the constitutional amendment to reaffirm longstanding legal principles prohibiting attacks on child custody orders years after their entry, and providing stability and protection to the children at the heart of custody disputes and, in December 2008, the Ohio Supreme Court  rejected the defendant's effort to use Ohio's antigay constitutional amendment as a weapon to sever the parental relationship between her child and her former partner. 

Camilla Taylor, Senior Staff Attorney in Lambda Legal's Midwest Regional Office in Chicago is lead counsel. She was assisted by Supervising Senior Staff Attorney Kenneth Upton in Lambda Legal's South Central Regional Office, and joined by Jay D. Kaplan, Michael J. Steinberg and Kary L. Moss at the American Civil Liberties Union Fund of Michigan in Detroit.

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Erin Baer 212-809-8585 ext 267; ebaer@lambdalegal.org

Rana Elmir 313-578-6816; relmir@aclumich.org

Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

The American Civil Liberties Union of Michigan is our state's guardian of liberty, working daily in courts, legislature and communities to defend and preserve individual rights and liberties by enforcing the Bill of Rights and advancing its principles.