Michigan Custody and Visitation Law
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Michigan courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the child(ren).
Michigan law states: “‘Best interests of the child’ means the sum total of the following factors to be considered, evaluated and determined by the court: (a) The love, affection and other emotional ties existing between the parties involved and the child; (b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any; (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care and other material needs; (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity; (e) The permanence, as a family unit, of the existing or proposed custodial home or homes; (f) The moral fitness of the parties involved; (g) The mental and physical health of the parties involved; (h) The home, school and community record of the child; (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference; (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents; (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child; (l) Any other factor considered by the court to be relevant to a particular child custody dispute. …
“If a child custody dispute is between the parents, between agencies or between third persons, the best interests of the child control.”
In a 2000 case, Ulvund v. Ulvund, the appeals court stated that a court may consider a parent’s sexual orientation where it is relevant to the statutory factors, i.e., whether it impacts the best interests of the child. In this case the trial court generally considered the plaintiff’s (mother’s) stable relationship with her same-sex partner as a factor in favor of her gaining physical custody of her son during the school year. The trial court’s opinion only mentioned her sexual orientation when discussing four of the 12 best-interest factors. In discussing factor C — the plaintiff’s capacity and disposition to provide for the child’s material needs — the court included her partner’s income. In discussing factor E, the permanence of the family unit, the court observed that plaintiff and her partner may face societal pressures because of their relationship, but concluded that they are sufficiently mature and wise to deal with the burden. The court concluded that the parties were equal concerning both these factors.
In a 1980 case, Irish v. Irish, the appeals court affirmed the trial court order that allowed the lesbian mother visitation with the condition that no intimate sexual conduct was to take place between her and her lover in the children’s presence and that the children could not stay overnight if the lover did.
In another 1980 case, Hall v. Hall, the trial court granted the father custody. The mother appealed, arguing that the court found her unfit because she was in a same-sex relationship. The appeals court found that the trial court “fully and fairly considered all of the evidence … we are also persuaded that the trial court correctly regarded the [mother’s] homosexuality as only one factor in its determination of moral fitness. Consideration was clearly given to [father’s] lifestyles as well in this regard.”
Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
Custody and Visitation for Same-Sex Co-Parents
Michigan courts have not granted custody or visitation rights to the non-biological parent of a child.
Michigan law states: “A third person may bring an action for custody of a child if the court finds either of the following: (a) Both of the following: (i) The child was placed for adoption with the third person under the adoption laws of this or another state, and the placement order is still in effect at the time the action is filed; (ii) After the placement, the child has resided with the third person for a minimum of six months; or (b) All of the following: (i) The child’s biological parents have never been married to one another; (ii) The child’s parent who has custody of the child dies or is missing and the other parent has not been granted legal custody under court order; (iii) The third person is related to the child within the fifth degree by marriage, blood or adoption.”
In one 1995 case, McGuffin v. Overton, Leigh and her children moved in with Carol until Leigh’s death. Leigh had executed a power of attorney delegating all of her parental powers to Carol and also purported to make Carol guardian of the children in her will. The father of the children petitioned for custody and asserted that Carol did have standing to ask for custody. The trial court agreed that Carol did not have standing to ask for custody. The appeals court agreed, noting that the Legislature has been very specific in limiting those third parties who may bring action for custody, and until the state Supreme Court or Legislature states otherwise, Carol and people similarly situated do not have standing to petition for custody unless they gave been appointed guardian or meet the other criteria listed in the state custody law.
Citations: MICH. COMP. LAWS § 722.23; MICH. COMP. LAWS § 722.25 Sec. 5; Ulvund v. Ulvund, 2000 Mich. App. LEXIS 946 (Mich. Ct. App. 2000); Irish v. Irish, 300 N.W.2d 739 (Mich. Ct. App. 1980); Hall v. Hall, 291 N.W.2d 143 (Mich. Ct. App. 1980); MICH. COMP. LAWS § 722.26c; McGuffin v. Overton, 542 N.W. 2d 288 (Mich. Ct. App. 1995).
The legal information provided on this page is provided as a courtesy to the public. It is not designed to serve as legal advice. HRC does not warrant that this information is current or comprehensive.
Last Updated: 10/13/2004