By Kevin J. McGiness and Elisabeth D. Brin

The Supreme Court’s ruling in Obergefell in the summer of 2016 was a change in how the U.S., as a whole, was to legally view same-sex marriages. As a result of this decision, the U.S. Constitution is now interpreted as requiring all states to recognize and uphold a marriage between people of the same-sex. The logistics and overall impact of the Obergefell ruling are not easily apparent. The task of changing or reinterpreting legislation to reflect such a decision, and the case law to follow, provide a daunting task ahead for all involved. Included in that task is dealing with same-sex couple adoptions.

According to MCL 710.24(1), only a single individual or a married couple can adopt in Michigan. Prior to the Obergefell decision, same-sex couples could not adopt together because Michigan did not recognize the marriage. Nor could the second-parent of a same-sex marriage adopt his or her spouse’s biological or adopted child. This meant the non-adoptive parent had no rights regarding education, medical, legal, and or other important life decisions regarding the minor child he or she was assisting in raising. In addition, if the non-adoptive parent were to pass away without proper estate planning, the minor child would have no rights to inherit from the person he or she had always considered a parent. Furthermore, in the event of a separation, the non-adoptive parent had no legal basis to claim custody or parenting-time rights of the child and could simply be excluded from the child’s life.

After the ruling of Obergefell, same-sex couples are permitted to jointly adopt children in Michigan. However, there are still a number of open questions over who is legally recognized as the parent in a same-sex family. Prior to Obergefell, in Michigan, if a child was born during a marriage, the husband was legally presumed to be the father unless the court ordered otherwise. Post Obergefell, a question remains as to whether the non-biological parent of a child, born during a same-sex marriage, has the same presumptive rights. The way Michigan’s laws currently stand, it is unclear if the non-birth parent would have any inherent parental rights.

The trend for same-sex couples is do a “second-parent adoption.” While Michigan currently does not have a statute authorizing second-parent adoption, there are laws providing for “stepparent adoptions.” This is a similar avenue that accomplishes the same goal – providing parental rights to the second-parent. In a second-parent or stepparent adoption, the non-biological and/or non-custodial parent would be legally considered the parent of the minor child and given the same rights as the biological parent. Until there is further clarification and changes to the established law, it would be wise for any non-custodial and/or non-birth parent to do a stepparent adoption. Otherwise, a parent may discover that he or she is not legally a parent at a time when it is most needed, such as when their minor child is facing a medical crisis.

The process the same-sex couple took to have or adopt a child will dictate the process that needs to be followed to go forward with a stepparent adoption. In all cases, parental rights of the other biological “parent” have to be terminated. This includes the rights of an unknown sperm donor or a surrogate. The reality is, that post Obergefell, there are still extra steps that same-sex couples need to take in order to ensure they have properly recognized parental rights. As with families, each case is individual and unique in nature, which is why the knowledge and experience of an adoption attorney is helpful. The good news is that with these adoptions, often times, everyone is on the same page about moving forward for the best interests of the minor child.


For further information regarding these matters, please contact Mr. McGiness or Ms. Brin at 248.528.1111 or via email.