A Loathsome Loophole: How Some LGBT Michiganders Use Discriminatory Law

Affirmations New Executive Director Exploits Anti-LGBT Tactic in Custody Fight

BY AJ TRAGER

The Obergefell v. Hodges decision by the U.S. Supreme Court last June (which made same-sex marriage legal across the country) has created a potentially new legal landscape for child custody cases involving same-sex parents in Michigan. Right now, six family law cases currently being processed through the Michigan court system are using a longstanding statute that allows for discrimination against LGBT parents as the basis for their legal argument. Some parents who were denied access to children after a breakup have decided to fight for legal standing (and thus visitation rights) in the aftermath of SCOTUS' decision.

Of the six cases, one in particular is striking and lends itself to a multitude of unanswered questions.

Newly appointed Executive Director of Affirmations Susan Erspamer is being represented by attorney Jim Rasor in an equitable parenthood case filed July 31 of last year. Erspamer and her former partner, Robbin Sawyer (represented in court by Amanda Shelton), pursued motherhood during their 16 year relationship that ended in 2009. Erspamer gave birth to a boy in 2002 and adopted a young girl five years later.

The couple maintained a co-parenting relationship for a few years following the split; however, Sawyer was denied access or visitation to the children in 2012. Rasor is seeking a motion for summary judgment, using the equitable parenthood statute to argue that Sawyer has no legal standing since the couple was not legally married.

BTL requested comment on the case and Erspamer asked that all responses come directly from her lawyer.

"My client is a mother of two school-aged children who is following her lawyer's advice as to best protect those children from an unstable and violent person who last had contact with them in 2012 when she violently attacked my client and her wife in front of the children. Keeping in mind that this person chose to end her relationship with the children in 2009 by finding someone else online and moving out of the house and out of the child's lives," Rasor told BTL.

Shelton refutes the claim of domestic violence noting, "Ms. Erspamer's legal position is to deny the children she raised with Ms. Sawyer the right to have two legal parents - to deny them the love, affection, and support of Ms. Sawyer who raised them since the eldest child was born and the youngest child was adopted.

"Ms. Erspamer is using the allegations of domestic violence, which are demonstrably false, to deflect attention from the true nature of this case. It is critical to note that Ms. Erspamer has kept the children from Ms. Sawyer for nearly four years by hiding behind Michigan's horrible discriminatory laws which, until the Supreme Court's ruling in Obergefell v. Hodge, left Ms. Sawyer without any legal rights to their children. Ms. Erspamer's reliance and exploitation of laws that discriminate against LGBTQ parents not only hurts the children in this family but is damaging to all LGBTQ families in Michigan," said Shelton.

BTL confirmed with Rasor that no police reports or formal complaints exist regarding the domestic violence claim.

Affirmations

BTL reached out to the board president of Affirmations for comment.

"The board has not yet had a chance to discuss this issue. My perspective is, this is a significant and important issue to the LGBT community, but it would be inappropriate for Susan's (Erspamer) employer to get involved with or comment on her personal custody litigation," Affirmations board president Frank Aiello said.

Family law attorney Jennifer LaTosch from Miller Canfield said she was extremely disappointed to learn that Erspamer is a defendant in one of the six cases currently using this historically anti-gay legal tactic to their benefit. Affirmations just went through major staff changes following the sudden resignation of executive director Darrious Hilmon in November, after only six months on the job. LaTosch was hoping that the organization would get a break, but now questions the new executive director's ability to lead while using a longstanding anti-gay tactic that has historically inflicted harm on many non-biological LGBT parents.

"I think it's exceptionally disappointing and could be astronomically devastating to our community. We are already fractured right now as a state despite the huge win in June. For any member of our community to use an anti-gay law to harm another individual in our community and potentially harm our entire community is completely irresponsible and, in my opinion, morally reprehensible," LaTosch said. "That's for any member of the community. But if you put yourself out there as a leader, whether it be in the political realm or the social realm or in the legal realm, it is even more impactful and devastating."

For decades lawyers have used marriage as a weapon against LGBT people in court. In this particular case, Rasor told BTL that if Sawyer and Erspamer were a committed couple, they would have pursued marriage, perhaps in another state or country. But post-Obergefell, does that position hold up?

"It's devastating to see in family law. Yes, family law attorneys are advocates for their clients, but I don't think being a good advocate in family law means that you win everything," LaTosch added. "It means that you've provided assistance for your client to get through this process and know their rights have been met, and they can still be a family at the end of it. It's much better for a kid for both their parents to be sitting next to each other at graduation than to be sitting at opposite sides of the auditorium. I think that is part of our job as a family law attorney. To help these families work through this transition."

Judge Karen McDonald of the Oakland Circuit Court is to hear arguments for and against Sawyer v. Erspamer (case No. 15-833465-DC) on Jan. 13.

Unique to Michigan

The concept of equitable parenthood, or "de facto" parenthood, was first introduced in the 1987 case of Atkinson v. Atkinson and was later revisited in 1999 in the case of Van v. Zahorik. Both cases involved a heterosexual couple where the male party was not the father of the child but was seeking custody or visitation rights after a breakup.

In Atkinson, the soon to be ex-husband was granted equitable parenthood due to having a lengthy relationship with the child that was recognized by the mother. In the Van case (10 years later), Michigan Supreme Court Justice Clifford Taylor, writing for the majority, held that the doctrine of equitable parenthood was rooted in marriage - therefore denying any LGBT co-parents legal standing to fight for visitation rights to the children they helped raise.

The precedent set by the state Supreme Court in the Van case determined that equitable parenthood was limited to the context of a legal marriage - a precedent unique to Michigan. Michigan is the only state in which marital status is the determining factor in whether a person has parental rights. LGBT couples were legally barred from getting married until six month ago and did not qualify for equitable parenthood legal standing in state family law cases. Michigan law also states that marriage is a requirement for a couple to second-parent adopt or co-adopt a child. The non-biological parent, with no legal standing, could therefore be denied contact with their children. Any petition to the courts for parenting time was considered frivolous.

However, the SCOTUS decision in Obergefell v. Hodges last June may include some language that could lead to a change in Michigan's law.

Justice Anthony Kennedy, who wrote the majority opinion, showed he understood the importance of marriage for the children saying, "Without the recognition, stability and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples."

ACLU Files Amicus Brief

"The ACLU feels very strongly about this. If Obergefell is to have any meaning, it's that LGBT families are to be treated on equal footing as opposite sex families and you cannot double penalize some people because they weren't afforded the protections from marriage," ACLU of Michigan LGBT Special Projects Attorney Jay Kaplan told BTL.

The ACLU of Michigan has filed a 154-page amicus brief in support of the non-biological mother, Robbin Sawyer.

"And unfortunately all of this is collateral damage as a result of years of laws and policies denying the existence of LGBT relationships and their families, including parent-child relationships," he continued. "But what we always come back to is the harm that's being done to the kids. Why should kids of gay parents not be afforded the protections that equitable parenthood provides in terms of stability?"

"The Supreme Court justices in Obergefell really focused on the social stigma of not allowing and not recognizing these families to get married and the psychological harm it would cause the children not having their family be recognized," said LaTosch.

Since the Van decision, the ACLU of Michigan and many other legal teams across the state have represented same-sex couples in family law court over this very matter. Kaplan, who has seen the direct harm this type of law can have on children, has watched LGBT lawyers even use the "de-facto" parenthood precedent to get cases thrown out of court.

"What is so disheartening is that members of our community have in the past used the fact that you can't get married to justify taking away the kids and basically saying to the courts that our relationships don't count - they're lesser, they're not entitled to protection including parent-child relationships. And it's equally disconcerting now that we have these landmark decisions with Obergefell and Windsor that talk about the harm that comes to children when you deny the parents the right to get married and you deny the protections and the stability," Kaplan said.

"Lawyers representing members of the community will use the bad law and in many cases not deny that there was a parent-child relationship, but they will use the Van precedent to win their case anyway," said Kaplan.

See the full amicus brief here.
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