The Ohio Supreme Court has affirmed lower court rulings that a lesbian co-parent could not seek "shared custody" of the child she was raising with her former partner, finding that there was evidence in the record from which the juvenile court could conclude that the women had not expressly agreed to shared custody. Two of the seven justices dissented on the ground that the majority opinion did not make any new law, so review should not have been granted. But one member of the court, Justice Paul E. Pfeiffer, filed an impassioned dissent, 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." In re Mullen, Slip Opinion No. 2011-Ohio-3361 (July 12, 2011).
The case begins with a fairly typical scenario, as Michele Hobbs and Kelly Mullen met in May 2000, fell in love, moved in together, and in 2003 initiated the steps of having a child. Hobbs asked a friend, Scott Liming, to donate sperm so that Mullen could become pregnant. Mullen and Liming executed a "Donor-Recipient Agreement on Insemination" under which Liming would be listed on the legal birth certificate but would 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 Hobbs and Mullen were listed as the parents; the legal birth certificate filed with the state listed Mullens as the mother and Liming as the father.
Shortly after Lucy was born, Liming moved from Atlanta back to Ohio and began visiting the child. When Lucy was two years old, the relationship between her mothers was deteriorating and fell apart in October 2007, when Mullen and Lucy moved out of the house. Soon thereafter, Hobbs filed a complaint seeking shared custody in Hamilton County Juvenile Court. Liming also petitioned the court for a shared custody order. Ultimately Liming was dropped from the case, as he was negotiating his own visitation arrangement with Mullen.
The case was referred to a magistrate. After hearing from the parties and conducting fact-finding, the magistrate issued the only sensible decision in this case, finding 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 Hobbs, so the magistrate's report recommended granting Hobbs' petition. But the juvenile court rejected the magistrate's recommendation, focusing instead on legal relationships. Contrary to the magistrate, the juvenile court concluded that although there was evidence on both sides of the question, "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 dismissed Hobbs' complaint for shared custody, and was affirmed by the court of appeals, which found that the juvenile court's decision was supported by "competent, credible evidence." The Supreme Court granted discretionary review.
Writing for the court, Justice Robert Cupp observed that under Ohio law dating back to the 2002 case of In re Bonfield, 780 N.E.2d 241, Ohio does not recognize an informal "shared parenting" arrangement as being legally binding in the event of a break-up of a same-sex couple who are raising a child together. "Rather," he wrote, "a parent may voluntarily share with a non-parent the care, custody, and control of his or her child through a valid shared-custody agreement," which involves "the purposeful relinquishment of some portion of the parent's right to exclusive custody of the child." In the event there is such an agreement, it is only enforceable to the extent that the juvenile court determines that enforcement is in the best interest of the child.
Thus, in this case, the majority of the court took the position that Hobbs would only have a legal claim to shared custody if she could show that Mullen had "purposefully relinquished" her right to exclusive custody by making an express agreement to that effect with Hobbs. While the court reiterated several times that such an agreement did not have to be in writing, it insisted that it was not sufficient to establish the existence of such an agreement to bring together various bits of evidence from which such an agreement could be found by implication. Thus, it was not enough to bring forth the ceremonial birth certificate, or the reference to Hobbs as a "co-parent" in various legal documents, or the actual evidence of day-to-day shared parenting activity during the first two years of the child's life.
Justice 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 under R.C. 2151.23(A)(2) establishing the scope of the legal custody that the parent desires to share, or both," but he noted that past decisions had not invariably required a writing.
Hobbs had argued that the references to her as "co-parent" in various legal documents should be construed as creating the necessary express agreement, but the court was not persuaded. "Finally, we do not agree with appellant's argument that 'coparent' equals 'shared custody' and that because the parties' statements and various documents used the 'coparent' terminology, the parties therefore clearly agreed to 'shared legal custody,'" wrote Cupp. "'Coparenting' is not synonymous with an agreement by the biological parent to permanently relinquish sole custody in favor of shared legal parenting. 'Coparenting' can have many different meanings and can refer to many different arrangements and degrees of permanency. The parties' use of the term, together with other evidence, however, may indicate that the parties shared the same understanding of its meaning and may be considered by a trial court in weighing all the evidence.'" In this case, however, the juvenile court had stressed that the documents containing that term were "revocable" and, indeed, were revoked by Mullen after the relationship fell apart.
The majority concluded that "competent, credible, and reliable evidence supports the juvenile court's conclusion that Mullen did not create an agreement to permanently relinquish sole legal custody of her child in favor of shared legal custody with Hobbs. Consequently, the juvenile court may not reach the questions of 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."
Chief Justice Maureen O'Connor and Justice Yvette McGee Brown joined in a dissent, arguing that the appeal should have been dismissed as improvidently granted because, as it turned out, in their view "the law governing this case is well settled and the majority establishes no new law or governing principle." They did stress, in their dissent, that Ohio precedents do not require a written agreement for a biological parent to relinquish sole custody, but, "as the facts of this case show, prudence now dictates that the agreement be documented." In other words, between the four-member majority and these two dissenting members, there seems to be a strong intimation that same-sex couples having children would be well advised to make a written shared custody agreement that uses the precise terminology suggested by the court's discussion.
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. The natural parent cannot simply declare that relationship over. That is what Kelly Mullen attempts to do in this case and what the majority decision allows. 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."
To a significant extent, Justice Pfeifer's disagreement with the majority concerns the quality of fact-determination by the juvenile court, and especially the conclusions that court drew from uncontested facts. "Can an agreement that another person is a coparent in every way possibly not include a right to custody," he asks, and answers: "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. 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."
Thus, Pfeifer concluded that "the trial court's judgment is not based upon competent, reliable evidence. Instead of being based upon the facts of what actually happened during Mullen and Hobbs' relationship and their parenting of Lucy, the decision was based almost entirely on how Mullen felt after the termination of her relationship with Hobbs." 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? 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." He argued that they should have followed the lead of the Wisconsin court in In re Custody of H.S.H.-K., 533 N.W.2d 419 (1993), a widely-followed precedent setting out a four-prong test for determining whether a co-parent should be treated as having a legal right to contest custody and seek visitation after a break-up. The Ohio court had specifically refrained from adopting this test in the Bonfield case, expressing reservations on invading the province of the legislature. But as the majority even noted, the legislature did not take the hint of Bonfield to enter the arena and revise Ohio's family law statutes to reflect the emergence of "nontraditional" families. So, Justice Pfeifer opines, the court should step up.
Pfeifer asserted that the record in this case would support the conclusion that the H.S.H.-K. test had been fully met in this case and Michele Hobbs should have been entitled to a "best interests" determination and, if appropriate, a shared custody decree. "The majority's decision today is the last step in this saga," he commented, "and sadly, the best interests of Lucy will never have been considered at any level. Instead, Mullen's self-interest will be the sole determining factor."
Pfeifer concluded: "Besides Hobbs and Lucy, common decency is another victim in this case. Mullen was able to use the law as a weapon because same-sex coparents lack legal rights. The law has not caught up to our culture, and this court has failed to craft a rule that addresses reality. Mullen and Hobbs employed a well-versed lawyer who represents people in their situation, and with his advice did all they could do to protect Hobbs. A maternal relationship existed between Hobbs and Lucy. Mullen taught her daughter to call another women '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."
Hobbs was represented on this appeal by Lisa T. Meeks of Newman & Meeks and Lambda Legal and Christopher Clark. Mullen was represented by Douglas B. Dougherty of Dougherty, Hanneman & Snedaker. There were numerous amicus curiae. The anti-gay right wing groups were well represented by the Alliance Defense Fund and Liberty Counsel, who urged the court to reject the appeal. Supporting Hobbs were amicus briefs from the National Center for Lesbian Rights, the ACLU of Ohio and the ACLU national LGBT Rights Project, and the National Association of Social Workers.