LeFever v. Matthews

Decision Date01 April 2021
Docket Number353106
Citation336 Mich.App. 651,971 N.W.2d 672
Parties Kyresha LEFEVER, Plaintiff-Appellee, v. Lanesha MATTHEWS, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Regina D. Jemison and National Center for Lesbian Rights (by Catherine P. Sakimura and Christopher F. Stoll ) for defendant.

Bassett & Associates, PLLC, Ann Arbor (by Jane A. Bassett ) for Professors of Family Law, amicus curiae.

American Civil Liberties Union Fund of Michigan (by Jay D. Kaplan, Livonia and Daniel S. Korobkin) and American Civil Liberties Union Foundation (by Taylor Brown and Leslie Cooper ) for American Civil Liberties Union, American Civil Liberties Union of Michigan, Center for Reproductive Rights, Center for Genetics and Society, and Pro-Choice Alliance for Responsible Research, amici curiae.

Before: Gleicher, P.J., and K. F. Kelly and Riordan, JJ.

Riordan, J.

In this child custody case, defendant, Lanesha Matthews, appeals as of right the trial court's order of parentage, custody, and parenting time. The trial court awarded sole legal custody and sole physical custody of plaintiff's and defendant's two minor children to plaintiff, Kyresha LeFever, granted parenting time to defendant, and ordered defendant's name be removed from the children's birth certificates. The custody order was premised on an earlier determination that defendant was merely a third party and not a parent of the children because, although she gestated and birthed the children, she did not have a genetic connection to them, unlike plaintiff, whose ova were used in the procreation of the children.

However, we conclude that the trial court improperly interpreted the term "parent" as defined by MCL 722.22(i) in the Child Custody Act (CCA), MCL 722.21 et seq. , as requiring a genetic connection and misapplied the Surrogate Parenting Act (SPA), MCL 722.851 et seq. Accordingly, we vacate the trial court's order and remand this case for further proceedings.


This case arises out of the dissolution of the parties’ relationship and the subsequent custody dispute over their two minor children, twin girls. Plaintiff and defendant, both women, began a romantic relationship in 2011. At some point during the relationship, they decided to have children together using plaintiff's eggs, fertilized by a sperm donor and implanted in defendant's womb. The in vitro fertilization

resulted in defendant's pregnancy with the twins. Although the parties intended for defendant to give birth in Ohio, where both women could be listed on the birth certificates, defendant gave birth two months early in Michigan. At that time, the Michigan Department of Health and Human Services Division for Vital Records permitted one father and one mother to be listed on a birth certificate. As a result of this practice, defendant was listed as the twins’ mother, and although plaintiff was not listed on the birth certificates, the twins were given plaintiff's last name.

The parties cohabitated and parented the twins together until they separated in 2014—before statutes excluding same-sex couples from marriage were declared unconstitutional in Obergefell v. Hodges , 576 U.S. 644, 135 S. Ct. 2584, 192 L.Ed.2d 609 (2015). The parties continued coparenting the twins and shared custody until defendant experienced serious health concerns in 2016. At that time, plaintiff became the twins’ primary caretaker until 2018, when a custody dispute arose.

In November 2018, plaintiff filed a complaint for custody of the twins as well as a motion to establish interim custody and parenting time. The matter was heard by a referee, who determined parentage should first be established. The case was dismissed and resubmitted by plaintiff as a complaint to establish parentage.

The trial court held a hearing to establish plaintiff's standing as a parent. Plaintiff argued that she was the twins’ "natural mother" by virtue of her genetic connection to the children and that defendant, the "gestational surrogate," was merely "the woman who carried the eggs of [plaintiff] and the sperm of an anonymous donor[.]" Plaintiff also raised due-process and equal-protection arguments. Defendant countered that the SPA applied in such a way that it invalidated any surrogacy contract between the parties. Defendant reasoned that because there is no valid surrogacy contract, she is the twins’ "natural parent" by default because she gave birth to them. Defendant further argued that Michigan law provides no avenue for conferring maternity on a party except by way of birth and delivery of a child and that, therefore, plaintiff lacked standing to seek custody. Defendant asserted that the parties decided not to have plaintiff recognized as a legal parent of the children at the time of their birth and that plaintiff must now live with the consequences of that decision.

The trial court found that plaintiff is the twins’ "natural and legal mother" and ordered that the birth certificates be amended to add plaintiff. The trial court also awarded joint legal custody on an interim basis and set forth a parenting-time schedule. However, during the preliminary hearing, the trial court raised the issue of defendant's standing as a "natural parent" and ordered additional briefing on the matter. Defendant moved for reconsideration of the trial court's orders; the trial court denied the motion.

Regarding defendant's standing, plaintiff then argued that defendant was not the twins’ natural parent because she shared no genetic connection with them. In response, defendant maintained her position that her biological connection to the twins, by way of gestation, made her the twins’ natural parent too. Defendant argued that neither the statute, nor the dictionary definition, limit "natural parent" to mean only a genetic parent and that such a narrow interpretation of the term is antithetical to the purpose of the CCA and would violate her constitutional rights to substantive due process and equal protection. Defendant also argued that she has "standing by agreement" by way of the parties’ comaternity arrangement and that plaintiff's action to revoke defendant's parentage of the twins was barred by the limitations period in MCL 722.1437(1) of the Revocation of Paternity Act, MCL 722.1431 et seq.

The trial court concluded that the SPA applied to the facts of this case because the act broadly defines a surrogate-parentage contract as encompassing any arrangement in which a female agrees to conceive a child through artificial insemination or in which a female agrees to surrogate gestation. The trial court further reasoned that the SPA identifies the "mother" as a party with a genetic connection to the child, whereas a "surrogate carrier" gestates and births a child to whom she has no genetic relationship. The trial court recognized that the SPA does not indicate which party should have custody to the resultant offspring but, rather, directs courts to apply the CCA.

The trial court noted that this case presents a matter of first impression in Michigan, but it considered the various outcomes in other jurisdictions under similar factual circumstances. The trial court was persuaded by the public policy rationale in Belsito v. Clark , 67 Ohio Misc. 2d 54, 644 N.E.2d 760 (1994). The trial court also considered MCL 722.1003 of the Acknowledgment of Parentage Act, MCL 722.1001 et seq ., the Safe Delivery of Newborns Law, MCL 712.1 et seq ., the Michigan Adoption Code, MCL 710.21 et seq ., and finally, the CCA, which defines a parent as "natural" or "adoptive," MCL 722.22(i). The trial court concluded that "the [L]egislature of this state has established that it is the public policy of this state to identify a parent as a person with a biological connection to the child." In this case, the trial court concluded that plaintiff, by way of her genetic connection to the twins, was the only party to establish a biological connection. As a result, this finding created a presumption that the best interests of the twins were served by awarding plaintiff custody, while the SPA granted defendant standing as a third party.

Defendant sought leave to appeal in this Court, but the application was dismissed for lack of jurisdiction because the opinion issued by the trial court was not a decision on a dispositive motion. LeFever v. Matthews , unpublished order of the Court of Appeals, entered October 23, 2019 (Docket No. 351133). Accordingly, the matter progressed to trial where defendant was required to show by clear and convincing evidence that it was in the twins’ best interests for her to have custody.

After a six-day trial, the court concluded that defendant failed to carry her burden to establish parentage. Plaintiff was awarded full legal and physical custody, and the trial court ordered that defendant's name be removed from the twins’ birth certificates. However, the trial court granted parenting time to defendant because of her standing as a third party under MCL 722.27(1)(b). Defendant now appeals and challenges the trial court's finding that she is not a natural parent. She argues that the trial court misinterpreted the CCA when it found that she is not a "natural parent," that it misapplied the SPA to the facts of this case, and that the trial court's order implicates her federal constitutional rights to substantive due process and equal protection under the law.


Legal standing constitutes a question of law that we review de novo. Heltzel v. Heltzel , 248 Mich. App. 1, 28, 638 N.W.2d 123 (2001). Because it relates specifically to "the resolution of a child custody dispute," the CCA provides that "all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue." MCL 722.28. "A clear legal error occurs when the...

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