Supreme Court rules for biological mom in lesbian custody dispute
Updated: Tuesday, July 12, 2011 02:24 PM
The Columbus Dispatch
A lesbian who shared parenting duties for her partner's biological daughter does not retain parental rights after the relationship ends, a divided Ohio Supreme Court ruled this morning.
The 4-3 decision upheld rulings of two lower courts.
Hamilton County Juvenile Court declared that although Kelly Mullen of Cincinnati shared the responsibilities of parenting her daughter Lucy with former partner Michele Hobbs while the women lived together, Mullen's actions did not confer on Hobbs a permanent right to shared custody of Lucy after her relationship with Mullen ended. An appeals court agreed.
In his majority opinion, Justice Robert Cupp recognized that Hobbs presented significant evidence to back up her push to obtain partial custody of Lucy, and Mullen provided evidence to
"The (juvenile) court noted that all the documents created by Mullen which purported to give Hobbs some custodial responsibilities not only were revocable, but were, in fact, revoked by Mullen," Cupp wrote.
"Testimony supported Mullen's statement that she did not intend to relinquish sole custody of the child to Hobbs. The juvenile court also stated that although the evidence was unclear whether a shared custody agreement was actually drafted by the parties or presented to Mullen, the evidence did show that Mullen consistently refused to enter into or sign any formal shared custody agreement when presented with the opportunity to do so."
Cupp said a key factor is that ruling is that "although Mullen and Hobbs had shared responsibilities for the child, Mullen had not agreed to permanently cede partial custody."
But he also noted that the lower court was barred from considering "whether Hobbs is a suitable person to be a custodian of the child or whether shared legal custody is in the child's best interests."
Justices Evelyn Lundberg Stratton, Terrence O'Donnell and Judith Ann Lanzinger agreed with Cupp.
Dissenting were Chief Justice Maureen O'Connor and Justice Yvette McGee Brown. Justice Paul E. Pfeifer issued a separate dissenting opinion.
O'Connor said although the law does not require a written agreement, "It is the preferred method of demonstrating the knowing and intelligent surrender of the parent's fundamental right, in whole or in part, and reinforces to both the parent and the proposed custodian the concomitant rights and responsibilities that are associated with custody of a child."
Pfeifer said, "The law has not caught up to our culture, and this court has failed to craft a rule that addresses reality,"
He said the agreement to sharing parenting was inherent even before Lucy was born.
"Can an agreement that another person is a coparent in every way possibly not include a right to custody? It cannot," Pfeifer said.
"The trial court seems to agree, and thus turns its emphasis on the fact that the documents were revocable. But the question before the court was whether Mullen agreed to share custody of her child with Hobbs, not whether she eventually came to regret that decision. Whether the documents were revocable is a red herring. The true question is when they were revoked.
"Executed before Lucy was born, they were not revoked when Lucy was born, when she was one year old, or even when the couple sought counseling because of difficulties in the relationship. Not until the pair separated after Lucy's second birthday did Mullen revoke the statement, 'I consider Michele Hobbs as my child's co-parent in every way.' Any reliance on what Mullen did after she separated from Hobbs was error."
Pfeifer concluded: "A maternal relationship existed between Hobbs and Lucy. Mullen taught her daughter to call another woman 'Momma' and to love her as a mother. She now wishes she hadn't, and for the majority, that's enough. It shouldn't be."
A gay legal rights group ripped the ruling.
"This decision is a tragedy for the child, above all else," said Christopher Clark, senior staff attorney for Lambda Legal's Midwest regional office in Chicago, in a statement. "The court disregarded the overwhelming evidence that Ms. Mullen agreed to parent Lucy with Ms. Hobbs 'in every way.' Regrettably, the decision severs a parent-child relationship between Lucy and the person she knows to be her mother.
"All Ohio families should be alarmed by this, as a child with a non-biological parent could be taken from their mom or dad in the event of a separation."
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