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### STATE OF MICHIGAN

COURT OF APPEALS

JENNIFER STANKEVICH, a/k/a JENNIFER MILLIRON,

Plaintiff-Appellant, FOR PUBLICATION November 19, 2015 9:00 a.m.

v No. 310710 Dickinson Circuit Court LEANNE MILLIRON, LC No. 12-016939-DP

Defendant-Appellee.

ON REMAND

Before: R IORDAN , P.J., and M ARKEY and K. F. K ELLY , JJ.

P ER C URIAM

. Plaintiff appeals as of right t he trial court order granting d efendant’s motion for summary disposition for failing to state a claim under MCR 2.116(C)(8). Pursuant to the dictates of the United States Supreme Court in Obergefell v Hodges , ___ US ___; 135 S Ct 2584; 192 L Ed 2d 609 (2015), we remand this matter fo r proceedings consistent wi th this opinion.

I. BACKGROUND

In our October 17, 2013 opinion in this matter, we summarized the factual background of the case:

The parties entered into a same-sex marriage in Canada in July 2007. Before that date, defendant had been artificially inseminated, and later gave birth to a child. Defendant is the bi ological mother of the child.

The parties’ [sic] separated in March 2009. While they initia lly agreed to a visitation schedule, they subs equently found that they could not agree. Thus, plaintiff filed a verified compl aint, asserting that she fully participated in the care and rearing of the minor child. She requested relief from the trial court, which included an order dissolving the ma rriage, an order affirming t hat she is the parent of the child, and orders regar ding custody, parenting time, and child support.

Defendant, however, filed a mo tion for summary disposition pur suant to MCR 2.116(C)(8). She asserted tha t plaintiff did not have stan ding to petition for-2- custody of the child. The trial court granted defendant’s moti on. Plaintiff now appeals. [ Stankevich v Milliron , unpublished opinion per curiam of the Court of Appeals, issued October 17, 2013 (Docket No. 310710), p 1, vaca ted and remanded 498 Mich 877 (2015).]

In our previous opinion, we uphe ld the grant of summary dispos ition to defendant because plaintiff lacked standing to bring this action. Stankevich , unpub op at 1. We noted that the Child Custody Act (CCA) defines “parent” as the “natural or adoptive parent of a child.” Id

. at 2, citing MCL 722.22(h). 1 Plaintiff is not a parent under this definition because she i s not an adoptive parent and because she is not related to the child by blood. Id ., citing Random House Webster’s College Dictionary (2005) (defining “natural” as, in part, “related by blood rath er than by adoption: one’s natural parents .”). Likewise, we rejected plaintiff’s request to apply the equitable parent doctrine that was adopted in Atkinson v Atkinson , 160 Mich App 601, 608-609; 408 NW2d 516 (1987). Stankevich , unpub op at 3-5. The basis of our conclusion was that applying the doctrine in this case would be contrary to Van v Zahorik , 460 Mich 320, 330-331; 597 NW2d 15 (1999), in which the Michigan Supreme Court decline d to extend the equitable parent doctrine outside the context of marriage, because recogn izing plaintiff’s same-sex union as a marriage under the equitable parent doctrine would violate the constitutional and statutory provisions defining marriage. Stankevich , unpub op at 3-5.

On November 25, 2013, plaintiff filed an application for leave to appeal with the Michigan Supreme Court. In light of the pending appeals from t he decision in DeBoer v Snyder

, 973 F Supp 2d 757 (ED Mich, 2014), rev’d 772 F3d 388 (CA 6, 201 4), rev’d sub nom Obergefell , 135 S Ct 2584, on April 25, 2014, our Supreme Court entered a n order holding the application in the instant matter in abeyance. Stankevich v Milliron , ___ Mich ___; 844 NW2d 724 (2014).

With the United States Supreme Court’s decision in Obergefell, on September 11, 2015, the Michigan Supreme Court vacated our judgment in this case an d remanded it to us for reconsideration. Stankevich v Milliron , 498 Mich 877; 868 NW2d 907 (2015).

II. SUMMARY DISPOSITION

A. STANDARD OF REVIEW

We review the grant of summary disposition de novo. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). “A mo tion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint,” and “[a]ll we ll-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant.” Id. at 119. Furthermore, the motion only should be granted when the claims are “so clearly unenforceable as a matt er of law that no factual development could possibl y justify recovery.” Id. (quotation marks and citation omitted).

1 MCL 722.22(h) was subsequently amended by 2015 PA 51, effectiv e September 7, 2015. The definition of “parent” remains the same, although it is now cod ified under MCL 722.22(i).-3- “Whether a party has legal standing to assert a claim constitu tes a question of law that we review de novo.” Heltzel v Heltzel , 248 Mich App 1, 28; 638 NW2d 123 (2001).

B. ANALYSIS

Because of the United States Supreme Court’s opinion in Obergefell , plaintiff has standing under the equitable pare nt doctrine si nce Michigan now is required to recognize the parties’ same-sex marriage, and pl aintiff’s complaint alleges f acts that, if proven, are sufficient to establish equitable parenthood. 2

“Generally, a party has standing if it has some real interest in the cause of action, . . . or interest in the subject ma tter of the controversy.” In re Anjoski , 283 Mich App 41, 50; 770 NW2d 1 (2009) (quotation marks a nd citation omitted; alteration in original). Yet, “this concept is not given such a broad applica tion in the context of child c ustody disputes involving third parties, or any individual ot her than a parent[.]” Id. (quotation marks and citation omitted; alteration in original).

However, this Court adopted the equitable parent doctrine in Atkinson , 160 Mich App at 608-609, holding:

[W]e adopt the do[c]trine of equi table parent and find that a husband who is not the biological father of a child born or conceived durin g the marriage may be considered the natural father of that child where (1) the hu sband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is wi lling to take on the responsibility of paying child support.

This Court stated that, given its recognition that “a person wh o is not the biological father of a child may be considered a parent against his will, and conseque ntly burdened with the responsibility of the support fo r the child[,]” such a person, in being treated as a parent, may also seek the rights of custody or parenting time. Id . at 610. This Court also has applied the equitable parent doctrine in lat er cases. See, e.g., York v Morofsky , 225 Mich App 333, 335, 337; 571 NW2d 524 (1997); Soumis v Soumis , 218 Mich App 27, 34; 553 NW2d 619 (1996). However, as mentioned supra , our Supreme Court declined to ext end the equitable parent doc trine outside the context of marriage in Van , 460 Mich at 337.

2 The remaining aspects of our previous opinion are unaffected b y Obergefell because the opinion only affected our analysi s of the equitable parent doct rine. Our application of the definition of “parent” under the CCA does not run afoul of Obergefell because now that definition applies equally to same-sex and opposite-sex married couples. See MCL 722.22(i) (previously MCL 722.22(h)).-4- In our previous opinion, we concluded that the equitable parent doctrine should not be expanded to include same-sex coupl es, such as the parties in th is case, because Michigan statutory and constitutional provisions precluded recognition o f the parties’ same-sex marriage, and Van limited the application of the equitable parent doctrine to th e confines of marriage. Stankevich , unpub op at 3-5. However, now with Obergefell , Michigan is required to recognize the parties’ same- sex marriage.

In Obergefell , 135 S Ct at 2604-2605, the United St ates Supreme Court held,

[T]he right to marry is a fundamental right inherent in the lib erty of the person, and under the Due Process and Equal Protection Clauses of the F ourteenth Amendment couples of the same-sex may not be deprived of that r ight and that liberty. The Court now holds that same-sex couples may exercis e the fundamental right to marry. N o longer may this liberty be deni ed to them. . . .

The Supreme Court therefore held invalid state laws, including Michigan’s constitutional provision defining marriage as a union between one man and one woman, Const 1963, art 1, § 25, Obergefell , 135 S Ct at 2593, “to the extent they exclude same-sex couple s from civil marriage on the same terms and conditions as opposite-sex coupl es,” id . at 2605.

The Court also addressed “wheth er the Constitution requires St ates to recognize same-sex marriages validly performed out of State[]” and concluded that “the recognition bans inflict substantial and continuing harm on same-sex couples.” Id . at 2607. Accordingly, the Court held that “same-sex couples may exercise the fundamental right to ma rry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in ano ther State on the ground of its same-sex character.” Id . at 2607-2608. Thus, under Obergefell , the holding in Van limiting the equitable parent doctrine to the confines of marriage is no lon ger a barrier to the application of that doctrine in this case, Van , 460 Mich at 337, and we are required to conclude that plainti ff is not barred from asserting the a pplicability of the equitable pa rent doctrine.

Plaintiff’s complaint alleges that the parties in the instant matter were married in Canada in 2007 and that defendant’s biological child was born during t he course of that marriage. As Obergefell , 135 S Ct at 2604-2605, requires that same-sex couples be perm itted to exercise the fundamental right to marry on the same terms and conditions as opposite-sex couples, an application of a legal doctrine excluding same-sex married coup les from the doctrine of equitable parenthood goes against the dictates of Obergefell, which we are bound to follow.

Should it be determined by the trial court that the parties’ p roffered marriage was valid pursuant to Canadian, or applicable provincial, domestic relati ons law and other legal and contractual requirements, 3 plaintiff alleges facts that afford her standing to seek the s tatus of an

3 Unlike marriages solemnized in sister states, which are general ly recognized as valid in this state, Michigan has no statute requiring the recognition of mar riages celebrated in foreign nations. Nonetheless, Michigan courts recognize marriages sole mnized in foreign nations as a-5- equitable parent. As previously discussed, the parties claim t hat the child was born during the course of their Canadian marriage. Plaintiff alleges that the parties entered into an agreement to conceive and raise the child with the attendant parental rights and responsibilities. Plaintiff also claims that she assisted with the artificial insemination proce ss through which the child was conceived, that she was present at the child’s birth, and that she fully participated in the care and rearing of the child until defe ndant prevented her from doing s o. Further, plaintiff alleges that, during the parties’ relationship, they shared parental responsi bilities and duties equally. She asserts that she always has ma intained a strong parental role t hat included bonding with the child, providing for the child financially, attending the child’s heal th care appointments, making medical decisions with defendant concerning the child’s care, a nd providing a home for the child. Further, after going their separate ways in March 2009, the parties had a parenting-time schedule for a significant period of time. Plaintiff’s complai nt requests an order that affirms her parental status, an order maki ng custody and parenting time det erminations, and an order of child support.

As set forth, plaintiff’s alle gations would establish factuall y her standing to file this action seeking equitable parenthood. The facts alleged in the complaint, if proven, would support the elements of the equita ble parent doctrine as set fo rth in Atkinson , 160 Mich App at 608-609.

Thus, we remand this matter for an evidentiary hearing to deter mine whether plaintiff is entitled to be deemed an equitable parent.

III. CONCLUSION

Obergefell , 135 S Ct at 2599-2601, 2604-2605, 2607-2608, requires Michiga n to recognize same-sex marriages. Therefore, we reverse the order granting summary disposition in favor of defendant and remand for an evidentiary hearing concer ning the validity of the parties’

matter of comity. It is well settled that Michigan’s law and p ublic policy favor the institution of marriage, Van , 460 Mich at 332; Boyce v McKenna, 211 Mich 204, 214; 178 NW 701 (1920), and Michigan courts have long r ecognized the validity of marria ges celebrated in foreign countries, provided that those marriages are valid in the natio n of celebration and that they are not antithetical to Michigan ’s public policy, see, e.g., Boyce , 211 Mich at 215; People v Imes, 110 Mich 250, 251; 68 NW 157 (1896); Hutchins v Kimmell, 31 Mich 126, 130-131 (1875). The rule in Michigan is that the validity of a foreign marriage mus t be determined by reference to the domestic relations law of the country of celebration. Hutchins , 31 Mich at 131; see also Noble v Noble, 299 Mich 565, 568; 300 NW 885 (1941); In re Osborn’s Estate, 273 Mich 589, 591; 263 NW 880 (1935); 16 Michigan Civil J urisprudence, Marriage, § 4, p 561. Upon remand, the trial court must determine the validity of th e parties’ Canadian marriage by referencing the domestic relations law of the place in which the plaintiff alleges that she was married to the defendant.-6- alleged Canadian marriage and the applicability of the equitabl e parent doctr ine. We do not retain jurisdiction.

/s/ Michael J. Riordan /s/ Jane E. Markey /s/ Kirsten Frank Kelly