Custody Battle Heads to Top Mich. Court

By Michelle Garcia

Originally published on Advocate.com December 23 2010 2:25 PM ET

The Michigan supreme court will decide next month whether it will hear
a case from a lesbian who is requesting joint custody of her
nonbiological children that she and her former partner raised together
until September 2009.

Renee Harmon has not seen the three children — 8-year-old twin boys and an 11-year-old girl — she and Tammy Davis raised in 16 months.

"You have not only me, but my mother, grandmother, and brother who haven't seen the children in 14 months," Harmon told The Advocate in November. "You have children experiencing a huge loss, like a death. I just worry about them. And hopefully we can change things in Michigan."

A lower court ruling gave Harmon and her attorneys, Dana Nessel and Nicole Childers, some hope for the future of their case. Nessel said that trial court judge Kathleen McCarthy provided an exhaustive list of examples of state and federal cases where the role of a parent was not always fulfilled by an adoptive guardian or biological mother or father. However, after Davis filed an emergency appeal with the Michigan court of appeals, the court reversed McCarthy's decision, ordering Harmon's petition for custody be dismissed.

"I wasn't surprised that she appealed," Harmon said. "We expected it. In fact, when the whole process started, we knew we would go to the supreme court level. It's just discouraging that, as a parent, she's not thinking of the children."

"DNA alone does not make a parent," Nessel said in a statement Thursday. According to the Nessel and Childers, Michigan is one of the few states where the laws are interpreted to prohibit the children of gay and lesbian parents from ever having two parents. Many other states either explicitly sanction adoption for same-sex couples or consider nonbiological parents "de facto" guardians.

In April, Davis's attorney, David Viar, told The Advocate that his client's case is not a gay rights case, but simply about a mother protecting her children. Nessel vastly disagrees.

"I think that's literally the most ridiculous thing," she said. "As Renee pointed out, if she was a man, she would have been allowed to marry Tammy, she would have been able to legally adopt those children, we would have gone to a regular parental custody trial, and this would have been resolved over a year ago — in fact a couple of years ago. In the state of Michigan, as the law has been interpreted at this point, there's no law protecting gay and lesbian families. Instead, as interpreted, gay parents and their children have been relegated to status of second class people."