Two females become life partners with one of them becoming a biological mother through artificial insemination and the other taking on the role of the "social" mother, holding themselves out to the community as a family. What happens when the same sex couple ends up in Splitsville?
Do non parent partners have visitation rights in Ohio? Last week, the Ohio Supreme Court dismissed without comment a case filed on behalf of a biological mother, Julie Smith, seeking the court's immediate determination that a juvenile court is without authority to allow a non parent social mother visitation rights. The matter will now return to Franklin County for a trial on the non parent social mother's motion for shared parenting leaving unanswered an important legal question as to whether existing statutes do provide lower courts with authority to order visitation for a non parent partner.
When will a non parent partner have shared parenting rights? In May of this year, the Ohio Supreme Court accepted the discretionary appeal of a case out of Hamilton County, In re: Lucy Kathleen Mullen, which may provide some direction for same sex couples intending to co-parent children. The case is to be scheduled for oral arguments yet this year.
Under existing law, a parent can voluntarily give up his or her rights to exclusive custody in favor of shared parenting to a non parent in one of two ways. First, a parent can enter into a written shared parenting arrangement with a non parent and petition the court for approval. In the case of In re Bonfield, the Ohio Supreme Court held that a shared parenting agreement between a same sex couple will be judicial accepted provided that due consideration is given to all known factors in determining what is in the best interests of the children and the non parent is found to be a proper person to assume the care, training, and education of the child.
Do non parent partners have visitation rights in Ohio? Last week, the Ohio Supreme Court dismissed without comment a case filed on behalf of a biological mother, Julie Smith, seeking the court's immediate determination that a juvenile court is without authority to allow a non parent social mother visitation rights. The matter will now return to Franklin County for a trial on the non parent social mother's motion for shared parenting leaving unanswered an important legal question as to whether existing statutes do provide lower courts with authority to order visitation for a non parent partner.
When will a non parent partner have shared parenting rights? In May of this year, the Ohio Supreme Court accepted the discretionary appeal of a case out of Hamilton County, In re: Lucy Kathleen Mullen, which may provide some direction for same sex couples intending to co-parent children. The case is to be scheduled for oral arguments yet this year.
Under existing law, a parent can voluntarily give up his or her rights to exclusive custody in favor of shared parenting to a non parent in one of two ways. First, a parent can enter into a written shared parenting arrangement with a non parent and petition the court for approval. In the case of In re Bonfield, the Ohio Supreme Court held that a shared parenting agreement between a same sex couple will be judicial accepted provided that due consideration is given to all known factors in determining what is in the best interests of the children and the non parent is found to be a proper person to assume the care, training, and education of the child.
Second, a parent can by virtue of his or her own conduct and words give up exclusive parental rights. While biological parents have constitutional rights paramount to non parents, numerous Ohio cases hold that a non parent may obtain custody of a child if there is a preponderance of evidence indicating that the parent contractually relinquished custody through words, acts or deeds. However, as noted by the trial court in this matter, these cases tend to be situations where there has been a total relinquishment - not partial relinquishment. In Lucy, the question for the Ohio Supreme Court seems to be whether there were words, actions and deeds to demonstrate conclusively that the biological mother contractually relinquished a portion of her exclusive parenting rights.
Facts in Lucy indicating that biological mother gave up some of her exclusive parenting rights include: non parent partner identified the sperm donor, helped pay costs for biological mother's in-vitro fertilization, was there with biological mother and all birth related appointments, was listed as a parent on ceremonial birth certificate, was named as a guardian for the child in biological mother's will and powers of attorney were signed indicating that bio mom considered social mom a co-parent in every way. However, facts in Lucy indicating that biological mother did not give up exclusive parenting rights include biological mother 's repeated refusal to sign a written shared parenting agreement and her revocation of non parent partner's guardian designation and powers of attorney.
It will be interesting to see how the Ohio Supreme Court decides Lucy. Perhaps the Court will simply require that agreements be in writing, not relying on simply the words, actions or deeds of those involved. After all, in 1991 Ohio eliminated the common law marriage, implied by a couple's holding themselves out as husband and wife. In any event, the Court's direction will help all parties, biological parents, non parent partners, and children alike, to eliminate the difficulty noted by the trial court in Lucy: "It is difficult if even possible to determine how much or what portion of custodial rights a parent would be relinquishing when an implied contract encompasses only a share of custody and is not reduced to writing.”
