Former partner of woman loses battle for shared custody of child
The Columbus Dispatch
The Ohio Supreme Court has a message for gays and others hoping to continue raising a child if their relationship with the biological parent should end.
You’d better get it in writing.
In a 4-3 decision yesterday, the justices upheld lower-court rulings that a Cincinnati woman did not agree to shared legal custody of her daughter, now 5, despite planning the in-vitro pregnancy with her partner and naming her a “co-parent” in power-of-attorney documents.
Biological mom Kelly Mullen voided those documents after she and Lucy, then 2, moved out of the house they shared with Michele Hobbs in 2007. Hobbs’ name appears on the ceremonial birth certificate, and she helped raise and financially support Lucy.
The legal dispute is one of several in Ohio and nationally to test the parental rights of people who are not biologically related to a child but have assumed parental responsibilities.
In his majority opinion, Justice Robert R. Cupp pointed to evidence that Mullen intended to share custody and evidence that she did not. Using “co-parenting” terminology in legal documents is not the same as agreeing to permanently relinquish sole custody for shared parenting, he said.
“Co-parenting can have many different meanings and can refer to many different arrangements and degrees of permanency,” Cupp wrote.
Though the high court stopped short of requiring couples to sign a written contract changing custodial rights, it said that is the best way to protect their rights.
In a dissent, Justice Paul E. Pfeifer faulted the Hamilton County Juvenile Court for basing its decision almost entirely on how Mullen felt after her relationship with Hobbs ended – not during. Sadly, the best interests of Lucy were never considered, he said.
“Besides Hobbs and Lucy, common decency is another victim in this case,” Pfeifer wrote. “Mullen was able to use the law as a weapon because same-sex co-parents lack legal rights. The law has not caught up to our culture, and this court has failed to craft a rule that addresses reality.”
The ruling is a setback for gay-rights groups left wondering why Hobbs lost her case.
“There were written agreements in this case,” said Christopher Clark, one of her attorneys and a senior staff attorney with Lamda Legal’s Midwest regional office. “They were not court-approved shared custody agreements, but there were numerous legal documents that in my view very clearly discussed the intent of the parties.”
A will and the power-of-attorney papers signed, and later voided, by Mullen referred to Hobbs as a “co-parent in every way.” She also encouraged Lucy to call Hobbs “Momma.”
Columbus lawyer Doug Dougherty, who represented Mullen in the Supreme Court, applauded the court for affirming biological parents’ constitutional right to raise their children. He likened the shared-custody agreements preferred by the justices to prenuptial agreements.
“If this relationship doesn’t work out, here’s what we’re going to do regarding the child,” he said. “The more detailed the better. The greater the clarity of the document the better.”
Justices Evelyn Lundberg Stratton, Terrence O’Donnell and Judith Ann Lanzinger joined Cupp in the majority. Chief Justice Maureen O’Connor, in a dissent joined by Yvette McGee Brown, said the court was wrong to take the case because the majority opinion set no new governing principle.
O’Connor added, however, that couples still would be wise to get custody arrangements in writing.
Ohio State University professor Marc Spindelman said it is not surprising the Supreme Court deferred to the juvenile judge’s view of the evidence. That decision was upheld by the 1st District Court of Appeals.
“Under the right set of facts, the court appears ready to uphold a shared-custody agreement.”
As the case moved through Ohio’s courts, Hobbs continued seeing Lucy for six hours every Saturday. That temporary, court-ordered visitation is likely to end since the case is settled.
“This is pretty devastating for a little girl,” Clark said. “We’ve been arguing for several years in different courts that this is about a relationship a very small child has with a woman she knows as her mother.”