Last year about this time I wrote about three cases in which a bio mom was teaming up with the sperm donor to force a nonbio mom out of a child's life. One of those cases, In re L.K.M., was argued yesterday before the Ohio Supreme Court. Lambda Legal represents Michelle Hobbs, and Lambda Senior Staff Attorney Christopher Clark did a terrific job on her behalf. You don't have to take my word for it; you can watch the oral argument here. You can also read all the briefs filed in the case here, something that is rare in state appeals courts. (And so this is where you can see that this case involves yet another bio mom who accepted help from the virulently anti-gay Alliance Defense Fund and Liberty Counsel, each of whom filed a separate friend of court brief on her behalf.)
The sperm donor's lawyer took only one minute of argument time, but it was enough time for him to say that he is the child's father and never relinquished his rights to Hobbs. The lawyer for bio mom, Kelly Mullen, also made clear that the biological father is exercising legal rights to the child and that Mullen had revoked her agreement with him not to do so. That agreement referred to Hobbs as Mullen's life partner, although she was not a party to it.
Much about this case is the expected scenario, and I reviewed the facts in my earlier post. I predict the court will split, but I could not count enough votes either way to be certain how they will rule. (Out of seven justices, I could really only predict the votes of three of them, and I would put them 2-1 in favor of Hobbs. But any appellate lawyer will tell you that predicting outcome from oral argument is an imperfect business at best).
Because of the relevant statutes, Hobbs' case turns on whether the court finds that Mullen relinquished some of her parental rights. One justice seemed inclined to require a written agreement before finding such a relinquishment, but even Mullen's lawyer did not argue that a written agreement was required. There were some written documents, including a will and a power of attorney giving Hobbs the right to make decisions for the child.
Speaking of their written documents, an important issue that does not get a lot of attention surfaced early in the argument. The couple sought legal advice from one lawyer, Scott Knox, a lawyer with expertise in protecting gay and lesbian families. That's what couples do when they are a happy family, because they are seeking protection as a unit and both women agree about what they want. But one of the justices said in the opening minutes that the lawyer could only represent one partner, and that was Mullen, the bio mom. When Hobbs' lawyer, Christopher Clark said that there was no testimony that Knox advised them of other options (like having separate lawyers or the critical importance of a written co-parenting agreement), the justice commented that he was not required to advise Ms. Hobbs about anything. Later on in the argument, Clark noted that Hobbs had sought advice from Knox earlier on a different issue (although this fact might not have been in the trial record) and that it was not clear who Knox represented.
Not clear who the lawyer represented? This is my idea of a legal ethics nightmare. Lawyers who do this work regularly agonize over when each partner needs a separate lawyer. When the couple shows up and each partner has a different legal status, that difference gives each a distinct position. Would having two separate lawyers have averted this litigation? We can't know, but the fact that the issue loomed large in the oral argument conveys just how important it is.