If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS KYRESHA LEFEVER, FOR PUBLICATION April 1, 2021 Plaintiff-Appellee, 9:15 a.m. v No. 353106 Wayne Circuit Court LANESHA MATTHEWS, LC No. 19-103263-DP Defendant-Appellant. 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 to 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. I. FACTS & PROCEDURAL HISTORY This case arises out of the dissolution of the parties’ relationship and 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 course of 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, -1- the Michigan Department of Health and Human Services’ Division of 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 US 644; 135 S Ct 2584; 192 L Ed 609 (2015). The parties continued co-parenting 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 …
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