CASCADE TOWNSHIP, Mich. (WOOD) — The American Civil Liberties Union does not usually get involved in child custody disputes, but the parenting battle between a same-sex couple in Kent County may have constitutional ramifications.
Two women who spent more than eight years raising children together broke up last year and the biological mother took her children to a new home with a new partner.
Joy Phillips remains in the Cascade Township home where the two girls she calls her children were raised. She once lived there with her longtime partner Amber Berndt. Phillips collects toys and stocking stuffers from birthdays and holidays that she has not spent with the two girls she considers her children. The items remain on the bed in the children’s room.
The main issue here is achingly familiar to any of the 50 percent of parental relationships that end with a break-up — child custody and parenting time.
But what makes this case different is that this couple raised children at a time when they were not allowed to get married. Same-sex marriage only became legal nationwide in June 2015 as the result of a landmark U.S. Supreme Court decision. Before that, it was banned in Michigan after a 2004 ballot question.
Now, the biological mother, Berndt, says she alone should determine what is best for her 7- and 10-year-old children.
It has drawn the attention of the ACLU, which supports Phillips.
“We strongly believe that you cannot deny a co-parent, who was part of a same-sex couple, the recognition as a parent because for many years Michigan unconstitutionally denied a same-sex couple the right to marry,” said Jay Kaplin, an ACLU attorney who specializes in LGBTQ issues.
The couple was in a long-term relationship when they decided to try to have children with the help of a male friend a decade ago.
“I want what every parent wants. I want to be with my children,” Phillips said. “I did everything that a parent does for their children and now they’re gone.”
After the relationship ended, Phillips says Berndt picked up the children from their Forest Hills school on Sept. 14 and they have not returned the home since.
Berndt’s attorney, Scott Sherlund, did not want to speak on record Thursday but has argued in court that the law is clear and the failure to marry means Phillips has no legal standing with the children.
They say the pair could have gone out of state or to Canada to get married, but chose not to.
Berndt’s side says the state cannot impose marriage. They also say that the case’s publicity only harms the children and that is why they have refused to comment on the record.
“They could’ve gone to Canada and got married, it would have meant nothing in Michigan, part of Michigan’s prohibition on same-sex couples marrying was also that Michigan would not recognize those marriages from other jurisdictions,” Kaplin said.
Kaplin also says the fact that a gay person would be using the anti-gay and unconstitutional ban on same sex marriage as a weapon in a custody dispute is disappointing.
Phillips’ attorney, Christine Yared, says the children remain in limbo as the case drags on.
“The harm here for the kids is that while this is going on, the kids aren’t getting to see one of their parents,” Yared said.
In Kent County, a family court judge is expected to hear arguments about whether Phillips can prove the couple had an intent to marry but were forbidden to do so and whether Phillips truly acted as a full parent to the girls.
Judge Kathleen Feeney wrote in her decision that it would be “unacceptable and inequitable to allow the vestiges of this unconstitutional circumstance to linger any longer.”
But it is unlikely that case will be heard before the fall, according to Yared.
It is likely this fight will end in the Michigan Supreme Court, where other similar cases are headed. Berndt’s legal team is expected to seek an appeal of a local court’s decision to not dismiss the case.
“I won’t stop fighting for them. I love them more than anything. They’re worth it,” Phillips said.