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Contact:  Ed Mullen, 614-224-0400

Columbus, OH – July 12, 2011

Ohio Supreme Court Rules Against Same-Sex “Co-Parent” in Custody Battle

Today, the Ohio Supreme Court announced its decision in In re Mullen (Slip Opinion No. 2011-Ohio-3361) and made it more difficult for a non-biological parent in a same-sex relationship to prove permanent shared custody of a child.  Although Ohio law allows for shared permanent custody without explicitly requiring a written agreement, the Court’s decision today effectively makes such an agreement a requirement in the event of a breakup, adding additional uncertainty and burden to families of same-sex couples in Ohio.

After being in a committed relationship for several years, Kelly Mullen and Michele Hobbs jointly agreed to have a child.  Kelly gave birth to Lucy Mullen after in vitro fertilization from a friend of Michele’s, for which the couple shared financial responsibility.  Michele was present at Lucy’s birth and cut the umbilical cord.  Although the donor’s name appeared on Lucy’s official birth certificate, the donor signed an agreement relinquishing custody and Kelly and Michele drafted a ceremonial birth certificate that listed themselves as Lucy’s parents.  Kelly also listed Michele as the “co-parent” on three documents -- her will, a health care power of attorney and a durable power of attorney, writing that she considered Michele to be Lucy’s co-parent “in every way.”  

For two years, Kelly and Michele co-parented Lucy and held themselves out as a family.  Thereafter, the relationship deteriorated and Kelly moved with Lucy out of the house that she and Michele had shared.  Michele then filed for permanent shared custody of Lucy.  The magistrate judge decided that Kelly and Michele had agreed to co-parent Lucy and that it was in the best interests of the child to maintain ties with Michele.  Therefore, the magistrate judge recommended that Kelly and Michele share permanent custody of Lucy.

Today, the Ohio Supreme Court held in a 4-3 decision that, despite all of the evidence of co-parenting, the trial court did not err in deciding that Kelly did not agree to permanently share custody with Michele. The Court based its decision primarily on two factors:  first, the documents in which Kelly named Michele as her co-parent were revocable; and second, the Court found that the term “co-parent” did not indicate a desire to share permanent custody.  

Justice Paul Pfeifer, writing separately in dissent, responded by arguing that an agreement to be a “co-parent in every way” cannot exclude shared custody.  He further argued that the question should not be whether the relevant documents were revocable, but whether they were revoked before the pair separated.  Because they were not revoked until after the breakup, Justice Pfiefer reasoned that shared permanent custody had been the intent of the couple:  “The question was whether Kelly intended to share permanent custody of Lucy with Michele, not whether she later came to regret that decision.” 

Justice Pfiefer further stated:  “The law has not caught up to our culture, and this court has failed to craft a rule that addresses reality.  . . .  A maternal relationship existed between [Michele] and Lucy.  [Kelly] 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.”

“This ruling is yet another example of how children raised by same sex couples and people in same sex relationships are harmed by the inequalities in Ohio law.  The only court that even considered the best interests of the child ruled that it was in the best interest of Lucy to maintain ties with Michele and that Michele should be granted joint custody.  And the end result is that child has been separated from the woman she knows as ‘Momma’ because the Court set an artificially high barrier for same sex couples to express an intent to share permanent custody,” says Ed Mullen, Executive Director of Equality Ohio.

This ruling is disturbing for two reasons in particular.  First, the trial court, the appellate court, and the Ohio Supreme Court did not consider the best interests of the child, finding that Lucy’s interests were only relevant if Kelly had intended to share permanent custody.  The only court that did consider Lucy’s interests, the original magistrate judge, found that Lucy should maintain ties with Michele.  Thus, children of same sex couples are at the mercy of the Court’s ex post facto determination of one parent’s intent, not of the child’s best interests and how the child has actually been raised.  

Notably, research on the issue of the well-being of children raised by same-sex parents demonstrates that children raised by same-sex parents are well-adjusted.  (See American Psychological Association, Policy Statement on Lesbian and Gay Parents,
http://www.apa.org/about/governance/council/policy/parenting.aspx; American Medical Association, AMA Policy Regarding Sexual Orientation,
http://www.ama-assn.org/ama/pub/about-ama/our-people/member-groups-sections/glbt-advisorycommittee/ama-policy-regarding-sexual-orientation.shtml).  Bias against same-sex couples should not drive decisions on shared custody, explicitly or implicitly.

Second, although the Ohio Supreme Court states that a written shared custody agreement is not necessary to find an intent to share custody permanently, its ruling suggests otherwise.  Indeed, its ruling calls into question how much detail is necessary in the terms of a shared custody agreement for it to be enforceable.  Same-sex couples are already disadvantaged by the legal hoops they need to jump through (and the associated expense) to obtain basic legal protections for their children that opposite sex couples take for granted in Ohio.  The Ohio Supreme Court’s ruling today will require same sex couples to hire a lawyer to draft explicit shared custody agreements, and for those currently raising children in same-sex households to review their agreements to determine whether they will withstand scrutiny after today’s decision.

Equality Ohio is saddened when the lack of legal rights granted to same-sex couples in Ohio is used by a member of the lesbian, gay, bisexual and transgender community to obtain personal advantage.  As Justice Pfiefer wrote:  “Mullen was able to use the law as a weapon because same-sex coparents lack legal rights.” 
This case highlights the need for same-sex couples and their families to be treated equally under Ohio law. 

About Equality Ohio

Equality Ohio advocates and educates to achieve fair treatment and equal opportunity for all Ohioans regardless of their sexual orientation or gender identity or expression.  Equality Ohio envisions an Ohio where everyone feels at home.

For more information on this case and for the full text of the court’s decision, visit:

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