On behalf of Gary Kirk of Kirk Montoute LLP posted in Family Law on Monday, September 5, 2016.
When a couple decides to separate or divorce, there are many legal details to be settled. Sometimes the most contentious is child custody. Although any case can be complicated, two recent rulings in the state of Michigan highlight the particular difficulties facing same-sex couples when they go their separate ways. Though the legalities of same-sex marriage in Michigan differ from those in Alberta, there may be individuals in parallel situations on the northern side of the border.
In two separate cases, women who had split from their female partners after long-term relationships were suing to be granted parental rights. Both plaintiffs’ former partners became mothers during their respective relationships. In one of the cases, all three children born during the 15-year relationship took the last name of the woman now seeking custody.
During the time of both relationships, same-sex marriage was illegal in Michigan. Now that it has been legalized, both women claim they would have married their respective partners had they been able to do so, and they should now be given the rights due a former spouse. Neither woman is currently allowed access to the children.
The judges based their rulings, in part, on their assessments that neither couple would have married had it been an option. And since neither complainant has a biological relationship to any of the children, it was decided to be in the best interests of the children to reject the requests. The Supreme Court has denied any future appeals of the decision.
Same-sex marriage has been legal in Canada since 2005, and unmarried same-sex couples in Alberta may qualify for recognition as being in an adult interdependent relationship. No matter the legal definition of a relationship, it is important to understand one’s rights should that relationship end. Family law, and child custody battles in particular, can be very complicated regardless of sexual orientation. Having a legal professional with experience in the field is a good start towards reaching an agreement.
Source: Metro News, “Top Michigan court rejects appeals in same-sex custody cases”, Ed White, August 3, 2016
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