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February 11, 2011

Shared parent rights challenged in Ohio top court

Columbus--The Ohio Supreme Court has heard a case that could whittle away at gay and lesbian couples’ right to shared parenting agreements.

That right came in 2002 as a result of the Ohio Supreme Court’s 6 to 1 ruling for a lesbian couple, Teri Bonfield and Shelly Zachritz, and their six children.

The 2002 case, In re Bonfield, has become one of the bedrock Ohio cases protecting non-traditional families. At the time it was decided, the couple was opposed by the anti-LGBT establishment, which has since attempted to weaken it through later cases, all rebuked at the district court level.

The case heard by the high court on February 2 was brought by a former couple, Kelly Mullen and Michele Hobbs.

Mullen, the biological mother of a five-year-old girl, wants sole custody of the child.

The sperm donor, Scott Liming, has joined the suit on Mullen’s side and appears to be making a move to assert parenting rights he previously set aside in a donor-recipient agreement.

According to testimony and the case’s record in lower courts, Mullen and Hobbs jointly paid for the fertility procedure that created the child, and represented themselves as a committed couple jointly parenting the child.

The lower courts found as fact that the couple had agreed to co-parent the child and told the child she had two mothers.

However, when the relationship soured and the couple split in 2007, Mullen was able to convince those lower courts, Hamilton County and the First District Court of Appeals, that she had never relinquished sole parenting rights because there was no written agreement to that effect.

The lower courts found in her favor, even though the magistrate who heard the case found Mullen’s testimony about the agreement to be untrue.

The Bonfield ruling has not required that parenting agreements be written and filed with the courts, but if the justices find for Mullen that could change, putting non-traditional families of all types in jeopardy.

Not surprisingly, the friends of the court filings on both sides are similar to those filed in Bonfield, with the ACLU, social workers and the National Center for Lesbian Rights siding with Hobbs, and the anti-gay Liberty Counsel and Alliance Defense Fund with Mullen.

Sallee Fry, the Cincinnati attorney who represented the couple in Bonfield, wrote the NCLR’s amicus brief.

Hobbs is represented in this case by Christopher Clark of Lambda Legal in Chicago and Lisa Meeks of Cincinnati.

Mullen is represented by Columbus attorney Douglas Dougherty. Liming is represented by Cincinnati attorney Terry Tranter.

Two of the seven justices, Paul Pfeifer and Evelyn Lundberg Stratton, were present when Bonfield was decided and voted in the majority.

Prior to oral argument, the high court ruled in Hobbs’ favor on a motion allowing visitation while the courts decide the matter.

“We ask the court today to hold,” began Clark, “that if a parent agrees to co-parent with another adult, then as a matter of law, the parent has relinquished exclusive custody in favor of shared custody.”

“This holding would be consistence with the prior precedence of this court,” Clark continued. “A parent, under those precedents, may not evade an agreement to co-parent with another adult by simply refusing to reduce that agreement [to] writing.”

“We submit it was a legal error for the juvenile court to conclude on the one hand that there was an agreement to co-parent, but on the other that Ms. Mullen had not relinquished full custody in favor of shared custody simply because she later refused to reduce that agreement to writing,” Clark said.

The first justice to question Clark was Yvette McGee Brown, the newest member of the court, and its only Democrat.

Brown was concerned that if the court accepted Hobbs’ argument, any person with nearly any relationship to a parent of a child could assert parental rights.

Brown said it is up to courts to decide the nature of the relationships, and that in this case, Hobbs and Mullen bought rings, celebrated anniversaries, and lived as a couple with a child.

Stratton questioned Clark about the possibility of creating “implied” parenting contracts.

While answering Chief Justice Maureen O’Connor, Clark also addressed Stratton: “The totality of the circumstances indicated that the relinquishment [of exclusive parenting rights by Mullen] had occurred based on the decision to have the child together, to be co-parents, and the fact that they acted in accordance with that agreement.”

Clark said there are children all over the state being raised in non-traditional households, and that ruling in favor of Mullen would put at risk all of the ones that aren’t covered by written agreements.

Dougherty had no time for opening remarks before being interrupted by Justice Robert Cupp, who was interested in the nature of the sperm donor-recipient agreement between Mullen and Liming.

In answering Cupp, Dougherty asserted that the Ohio statute controlling artificial insemination does not apply in this case because the child was created through in vitro fertilization, and there is no statute controlling donor rights in those cases.

“To the extent that you give the former girlfriend any custodial right, it necessarily is going to take away some of the rights of the biological mother and the biological father,” Dougherty argued.

Dougherty told the court that the sperm donor-recipient agreement, which mentions Hobbs as Mullen’s “life partner” has been revoked “so that the biological father can exercise more of his parental rights.”

Justice Pfeifer said the case is about “whether or not by her actions, by the documents they executed while they were getting along, did Ms. Mullen demonstrate that she was relinquishing some of her custodial rights to Ms. Hobbs.”

Dougherty agreed with Pfeifer, but not the “standard of review” Pfeifer was suggesting. Dougherty asserted, arguing with Pfeifer, that the constitutional relinquishment of Mullen’s parental rights didn’t occur.

Justice Judith Lanzinger questioned Dougherty on the importance of getting these agreements in writing.

Though Dougherty conceded that Bonfield does not require a written agreement, he was interrupted by O’Connor, who said, “Counsel, there’s all kinds of challenges to written documents as well, and that’s why courts are in business.”

“I’m concerned that whatever decision we make goes beyond this case,” Brown said, asking Dougherty what type of agreement should be required.

The court is expected to rule on the case in about three months.

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