Year: 2025
Type: article
Abstract: Obergefell v. Hodges , 576 U.S. 644 (2015) appeared to settle certain issues in family law by allowing same gender individuals to marry. Unfortunately, Obergefell left some areas of inequality between same gender and heterogeneous households, including visitation and family support rights and obligations, especially rights outside of and before and after marriage. A non‐marrying biological parent, whose relationship one can prove via DNA, enjoys the right to start and maintain relationship with and parallel obligations of supporting biological children. Medicare, the local County Prosecutor's Office, and Friends of the Court work together to force support obligations upon non‐custodial, biological different gender parents. In distinct contrast, same gender parents not biologically related to a child face an uphill battle to establish legal rights and enforce support obligations on the biologically related custodial parents. It falls upon State courts, as exemplified by Michigan in this paper, to what degree, if at all, to uphold or ignore these rights and obligations, and court considerations may well ignore the “best interests of the child” in favor of other values. This paper proposes that through the doctrines of “de facto” parent and “parent by estoppel,” and, “equitable parent,” biologically unrelated same gender parents of non‐married couples or pre‐Obergefell parents can successfully assert and become subject to the normal bonds of parenthood, creating legal equality between them and DNA linked heterogeneous parents, so preserving the parent's liberty interest as well as the “best‐interests of the child.” This paper will examine this situation through looking at a single state, Michigan, and looking at an imaginary couple to explore the possible impact. This note will close with suggestions as how to build a more final solution to the issues here discussed. However, ultimately, only a Supreme Court decision or national or state law change in the law can resolve the legal inequality presented.
DOI: 10.1111/jfcj.70009
Author: Daniel R. Fruit
Institution: Michigan State University
Language: English
Topic: Family and Matrimonial Law
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: hybrid
Estimated APC paid: $2,900
OpenAlex ID: W4412518433