Ohio Supreme Court Hears Same Sex Parenting Case ~ In re Lucy Mullen

            I just got done listening to oral arguments before the Ohio Supreme Court regarding co-parenting between same sex couples ~ In re Lucy Mullen ~ heard on February 2, 2011.  The Court will render a decision soon, but thought I'd post the link to the arguments.

            Ohio biological parents can give up their custodial rights to children in one of two ways:  sign a contract doing so; or act in a manner that clearly indicates intent to give up custodial rights. 

            In this case, the mother and her girlfriend appeared to have every intention of co-parenting.  However, when the relationship soured, the mother sought legal counsel and refused to sign a co-parenting agreement with the girlfriend; this was a key fact for the lower court in deciding that mother didn't, as a matter of law, relinquish custody to the girlfriend. 

           

            Counsel for the girlfriend seemed to argue, in essence, that if  through your actions you agree to co-parent, that is the same as giving away or relinquishing custodial rights. And you can't later change your mind in the legal sense by refusing to put that agreement in writing. 

            I've wondered whether the Ohio Supreme Court might use this case as a basis, for public policy reasons, to adopt a bright line standard that says:  if you want co-parenting rights, you must enter into a written agreement.   After hearing the arguments, and questions by the Justices, I'm not convinced that will happen.   

           Though new Justice Yvette Brown alluded to the confusion created by the wide variety of ways people can come to court and now argue there is a  non-written but valid parenting agreement,  Douglas Dougherty, attorney for biological mother, stopped short of requesting a "gold standard" requiring written agreements in these situations.  Instead, he seemed to say that courts are equipped to determine whether there is an implied contract based on facts and circumstances. Chief Justice O'Connor also pointed out that having agreements in writing is not a cure-all (lots of written agreements end up in court) and, further, that courts are in business to sort through facts and access credibility.  

         Looking forward to seeing how the Justices bring clarity to non traditional parenting.  

Same Sex Couples and Parenting Rights - Ohio Supreme Court Watch

          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.   

            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.”