West Michigan Child Custody Case Not Clear Cut

BY AJ Trager

GRAND RAPIDS - A West Michigan judge will soon decide if Michigan's former ban on same-sex marriage will impact a child custody case currently being disputed in Kent County.

Joy Phillips, 41, and Amber Berndt, 37, were together for over 10 years and purchased two homes together. They took on an added financial responsibility when Berndt gave birth to two girls (now ages 10 and 7). The children bare the name Berndt-Phillips.

Phillips and Berndt broke off their relationship last year. After Berndt's new partner got a job in Petoskey, Berndt discussed her intention to move with Phillips, who then petitioned the court to have Berndt deal with custody issues.

Phillips opposes the move and claims that Berndt has denied her access to the children in person and by phone. MLive reports that Berndt's attorney claims to have attempted to work out an arrangement in mediation, but the other side wants the case to be heard in court.

The question before Kent County Family Court Judge Kathleen Feeney is whether documents disclosing that both Phillips and Berndt were primary caregivers of the children while together is evidence enough to legally bind them as equal parents to the two young girls.

The relationship dissolved by December 2014 and, at the time, had a 50-50 co-parenting agreement until sometime this past summer. Christine Yared, Phillips' attorney, says the fact that the couple was denied marriage under a state law that was deemed unconstitutional in June of this year should give her client standing to make a valid claim towards parenthood of the children she helped raise for the past decade.

Berndt's lawyer, on the other hand, insists that Phillips has zero legal right to claim custody of the children.

Like many couples before the marriage equality decision in June, Berndt and Phillips did not pursue a legal confirmation of their union. They wore rings but did not have an official ceremony.

ACLU LGBT Project attorney Jay Kaplan has filed a brief to the court in favor of Phillips' argument, stating that not recognizing Phillips as a parent of the children would be unconstitutional.

"It is of vital importance that children of LGBT parents are afforded the same legal protections as children of heterosexual parents and that such children are not discriminated against because of the marital status and or sexual orientation of their parents, particularly when their parents were unconstitutionally prohibited from marrying," the brief reads.

When the children were born, Michigan did not recognize same-sex marriages. A couple cannot second-parent adopt in the state unless they are married, so Berndt and Phillips were prevented from pursuing a joint adoption. Now that the U.S. Supreme Court has ruled same-sex marriage bans unconstitutional throughout the country, cases like this have become murky.

"This case, and other equitable parenthood cases, are important at this time in history - post-marriage equality - because they focus on LGBT couples and families that were unable to obtain this protection associated with marriage, because they (the same-sex partners) were prevented from marrying by laws like Michigan's during their relationships. Should parents be erased out of their children's lives due to the whims of the former partner (who is the legal parent) and should kids lose those relationships because their parents were unconstitutionally denied the right to marry, and thus the benefits of marriage, which include equitable parenthood? We (ACLU of Michigan) think not and eventually Michigan's appellate courts and the Legislature will have to grapple with this issue," Kaplan told BTL.

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