Lack of evidence of “express” custody sharing thwarts claim involving two-year-old daughter
The Ohio Supreme Court has affirmed lower court rulings that a lesbian co-parent could not seek “shared custody” of Lucy, the child she raised from birth for two years with her former partner, finding no evidence the women had expressly agreed to shared custody.
One member of the court, Justice Paul E. Pfeifer, filed an impassioned dissent to the July 12 ruling, arguing that in addition to the co-parent and the child, “common decency is another victim in this case,” and that “this court has failed to craft a rule that addresses reality.”
Michele Hobbs and Kelly Mullen met in 2000, fell in love, moved in together, and in 2003 initiated steps to have a child. Hobbs asked a friend, Scott Liming, to donate sperm so that Mullen could become pregnant, with the biological parents executing a “Donor-Recipient Agreement on Insemination” under which the father would be listed on the legal birth certificate but relinquish parental rights and any future claims to custody or visitation.
Before the child was born, Mullen executed a will naming Hobbs as guardian of her child, as well as a health-care power of attorney and a general durable power of attorney, identifying Hobbs as the “child’s co-parent in every way” and authorizing her to have the same authority as a parent for decision-making. When the child was born, the hospital prepared a “ceremonial” birth certificate on which the mothers were listed as the parents, though the legal certificate listed Mullen and Liming.
In 2007, when Lucy was two years old, the relationship between her mothers fell apart, and Mullen and the child moved out of the house. Hobbs responded by filing a complaint seeking shared custody in Hamilton County Juvenile Court. A magistrate who heard the case found that Mullen had effectively agreed to sharing custody with Hobbs before the child was born, and that it was in the best interest of Lucy to maintain ties with her.
The juvenile court, however, rejected that recommendation, focusing instead on legal relationships and finding that “a preponderance of the evidence did not conclusively demonstrate that Mullen’s conduct created a contract that permanently gave partial custody rights of the child to Hobbs.” The juvenile court’s decision was later affirmed by an appellate court, and the Supreme Court granted review.
One member of the court, Justice Paul E. Pfeifer, filed an impassioned dissent to the July 12 ruling, arguing that in addition to the co-parent and the child, “common decency is another victim in this case,” and that “this court has failed to craft a rule that addresses reality.”
Michele Hobbs and Kelly Mullen met in 2000, fell in love, moved in together, and in 2003 initiated steps to have a child. Hobbs asked a friend, Scott Liming, to donate sperm so that Mullen could become pregnant, with the biological parents executing a “Donor-Recipient Agreement on Insemination” under which the father would be listed on the legal birth certificate but relinquish parental rights and any future claims to custody or visitation.
Before the child was born, Mullen executed a will naming Hobbs as guardian of her child, as well as a health-care power of attorney and a general durable power of attorney, identifying Hobbs as the “child’s co-parent in every way” and authorizing her to have the same authority as a parent for decision-making. When the child was born, the hospital prepared a “ceremonial” birth certificate on which the mothers were listed as the parents, though the legal certificate listed Mullen and Liming.
In 2007, when Lucy was two years old, the relationship between her mothers fell apart, and Mullen and the child moved out of the house. Hobbs responded by filing a complaint seeking shared custody in Hamilton County Juvenile Court. A magistrate who heard the case found that Mullen had effectively agreed to sharing custody with Hobbs before the child was born, and that it was in the best interest of Lucy to maintain ties with her.
The juvenile court, however, rejected that recommendation, focusing instead on legal relationships and finding that “a preponderance of the evidence did not conclusively demonstrate that Mullen’s conduct created a contract that permanently gave partial custody rights of the child to Hobbs.” The juvenile court’s decision was later affirmed by an appellate court, and the Supreme Court granted review.
The court acknowledged that such an agreement did not have to be in writing, but also insisted its existence could not be established by implication by pointing to an array of evidence. Consequently, the court discounted the ceremonial birth certificate, the reference to Hobbs as a “co-parent” in various legal documents, and the evidence of day-to-day shared parenting activity during the child’s first two years. The juvenile court had noted that the documents containing the word “co-parent” were revocable and, indeed, were revoked by Mullen after the relationship fell apart.
Cupp commented that “the best way to safeguard both a parent’s and a nonparent’s rights with respect to children is to agree in writing as to how custody is to be shared, the manner in which it is shared, and the degree to which it may be revocable or permanent, or to apply to a juvenile court for an order… establishing the scope of the legal custody that the parent desires to share.”
Two justices dissented, arguing that review should not have been granted since “the law governing this case is well settled and the majority establishes no new law or governing principle.” They stressed, however, that in cases where a biological parent chooses to relinquish sole custody, “prudence now dictates that the agreement be documented.”
Justice Pfeifer’s dissent focuses on the human tragedy at the heart of this kind of case. “Is filial love something to be dangled and then snatched away, promised and then reneged upon?” he began. “Once a natural parent promises a coparenting relationship with another person and acts on that promise, she has created a relationship between the coparent and the child that has its own life… Now, no court will ever determine whether it is in Lucy Mullen’s best interests to have a continuing relationship with the woman she calls ‘Momma,’ Michele Hobbs. Because the juvenile court in this case at the very least should have gotten to the point of making that best-interests determination, I dissent.”
Pfeifer’s dissent clearly challenged the quality of fact-determination by the juvenile court, arguing, “Can an agreement that another person is a coparent 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. 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… Any reliance on what Mullen did after she separated from Hobbs was error.”
Pfeifer questioned how same-sex couples planning to have children could comply with the court’s suggestion to spell out everything in a shared-custody agreement. “Can they not let the circuitous path of family life determine how they together raise the child?” he wrote. “Must they define roles? Must they establish a visitation schedule to use after an eventual break-up, before a baby is even brought home from the hospital?”
Pfeifer bemoaned the lost opportunity for the court to use this case to “present a more workable analysis for lower courts to employ in cases of disputed custody between a natural parent and a nonparent, an analysis rooted in the intent of the parties as evidenced by the nature of the familial relationship.”
Hobbs was represented on this appeal by Lisa T. Meeks of Newman & Meeks and Lambda Legal’s Christopher Clark. Douglas B. Dougherty of Dougherty, Hanneman & Snedaker represented Mullen, who had the support of amicus briefs from the anti-gay right wing groups Alliance Defense Fund and Liberty Counsel. The National Center for Lesbian Rights, the National Association of Social Workers, and the American Civil Liberties Union and its Ohio affiliate filed briefs supporting Hobbs.
