By JULIE CARR SMYTH
COLUMBUS, Ohio – An Ohio woman’s quest for shared custody of a girl whose conception she planned with a same-sex partner ended in defeat this week, but experts say the Ohio Supreme Court’s decision in her case leaves open the possibility of more legal co-parenting agreements in a state that has banned gay marriage.
In a 4-3 decision, the Ohio Supreme Court ruled in favor of the child’s biological mother, Kelly Mullen, who claimed sole custody. Mullen’s former partner, Michele Hobbs, shared parenting and financial support of the girl, a 5-year-old named Lucy, before the women split up in 2007.
Hobbs argued that the two jointly planned Mullen’s pregnancy and documents- including a ceremonial birth certificate and will-listed Hobbs as Lucy’s “co-parent.” She said that represented a binding contractual agreement between the women, and a magistrate who initially reviewed the evidence agreed.
But the high court on Tuesday sided with a later decision to the contrary by the 1st District Court of Appeals.
Justice Robert Cupp, writing for the majority, acknowledged that Hobbs presented significant evidence to support her claim to partial custody, but he said Mullen produced opposing evidence.
“The 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,” he wrote. “Testimony supported Mullen’s statement that she did not intend to relinquish sole custody of the child to Hobbs.”
Mullen’s attorney Douglas Dougherty said the case had nothing to do with the women’s sexual orientation.
“My client is a lesbian and proud of it, and she thinks lesbians should have all the rights that straight people have, and so do I,” he said. “The problem here wasn’t that it was a lesbian or gay relationship, it was that they didn’t love each other anymore, and very sadly didn’t respect each other anymore, and my client felt a clean break was in the best interest of the child.”
Chief Justice Maureen O’Connor, Yvette McGee Brown and Paul Pfeifer dissented in the case.
O’Connor’s opinion, joined by McGee Brown, said the court was wrong to accept the case in the first place because it established no new governing principle. One thing it did show, she said: Couples would be prudent to get custody arrangements in writing.
Ohio State University law professor Marc Spindelman said justices seemed to be largely in agreement on that point, and that could have broad implications for unmarried couples in Ohio.
He said the majority opinion was carefully framed around the facts of the case, especially Hobbs’ lack of a written shared custody agreement.
“It’s not insignificant, and it’s important to remember, that the majority’s opinion provides a way to resolve that dilemma,” he said. “It puts power in hands of people who are co-parenting a child to put in place shared custody agreements, and to do that within the law.”
Ohioans voted in favor of a gay marriage ban in 2004 that stripped same-sex couples of many legal protections, and Spindelman said “lots of people believed the outcome of this case would mark not only a defeat for this particular woman but a major setback for lesbian and gay rights in the state of Ohio.”
Hobbs’ attorney, Christopher Clark of the gay-rights law project Lambda Legal, agreed- but he said it was still a devastating day for his client.
He said the rights of nonbiological parents, grandparents and other caretakers have been upheld in numerous other cases where there was much weaker evidence.
“When same-sex couples and the LGBT community are trying to seek legal protections, it is often the response, `Why do you need the law to change, because you can just go to a lawyer and draw up the paperwork you need to protect yourself?”‘ he said. “This case, unfortunately, highlights that you can do everything possible to protect your family and your children and the system can break down.”
In his dissent, Pfeifer said Hobbs presented more than enough evidence to back up her claim.
“Can an agreement that another person is a co-parent in every way possibly not include a right to custody? It cannot. The trial court seems to agree, and thus turns its emphasis on the fact that the documents were revocable,” he wrote. “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.”
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