Custody Issues For Same-Sex Couples in Michigan (Part 2)

In a previous article we discussed the fact that same-sex couples, just like heterosexual couples, deal with all kinds of issues when their marriages come to an end. However, when dealing with custody, same-sex couples have additional complications due to the way the law views the rights of biological parents versus non-biological parents.


This is no more clear than in the case of Berndt vs. Phillips, where a same sex couple who stayed together for eight years and brought two children into the world together, are now battling out their custody issues in court.


What makes their case different is the fact that Joy Phillips and Amber Berndt began their relationship during a time when same sex marriage wasn’t legal. For this reason, the two daughters they raised together are only legally considered to be the children of Berndt, as she was the biological mother. Phillips, who was involved in every aspect of the pregnancy and child-raising as a partner, presumably has no legal claim to the children.


After the pair parted ways, Berndt picked the two children up at school and never returned home. She has denied Philips access to the children in the form of custody or visitation, and claims that Phillips has no legal right to parent them, or be a part of their lives. She and her new partner then relocated, taking the children with them. Phillips then petitioned the court for formal custody.


According to Berndt’s attorney, the fact that the couple didn’t get married meant that they did not plan to remain together permanently, and therefore Phillips should have no rights to Berndt’s biological children. But Phillips claims that the law did not allow the couple to marry, and that failure on the part of legislation should not now be used as leverage against her in the custody battle.


According to attorneys at the American Civil Liberties Union who have stepped in to defend Phillips in this case, this is a problem that is likely to become more common in the coming years. As of now, the case is scheduled to be heard by the Michigan Supreme Court, and whatever decision they make will have an enormous impact on how these cases are handled in the future.


As family law attorneys who have been practicing in Michigan for many years now, we understand how complex the issue of custody can be. We would strongly encourage all same sex partners who are considering marriage, to meet with an experienced attorney in order to discuss their options before moving forward. Having taken a little time to plan ahead now can save years of grief and frustration in the future.