Tuesday, June 14, 2011

Ohio appeals court overturns contempt finding and allows bio mom to withhold visitation from nonbio mom

An Ohio trial judge granted Julie Rowell temporary visitation with the daughter she raised for five years with her former partner, Julie Smith. The child was conceived through donor insemination while the couple was together. When Smith refused to allow the court-ordered temporary visitation, the trial judge held her in contempt of court. Last week, an Ohio appeals court in Rowell v. Smith overturned, in a 2-1 vote, the contempt finding, ruling that the trial court lacked the authority (and therefore the subject matter jurisdiction) to issue a temporary visitation order to a non-parent unless there was pending an action for dissolution of a marriage or child support.

This is an outrageous decision. The appeals court does not dispute that the court has the power to hear Rowell's petition for custody of the child. But a custody case can drag on for a long time. Point of fact: this custody action began in October 2008. Procedural manuevering, as well as the standard length of time it takes to prepare a contested custody case, means that a final hearing on custody can take a very long time. Without a temporary visitation order, the nonbio mom loses contact with her child and thereby reduces the likelihood she will prevail at the ultimate trial.

This case is the story of a bio mom who simply refused to comply with a trial court's order, requiring the nonbio mom to return to court for enforcement. To the credit of the trial judge, that judge refused to budge from the temporary visitation order and ultimately held the bio mom in contempt and ordered her jailed for three days unless she allowed visitation and paid Rowell's attorneys fees. That contempt order was subject to review by an appellate court, and it is that review which resulted in this terrible opinion.

It is settled in Ohio that a nonbio mom can share custody with a bio mom when there has been an agreement to do so. The agreement can be proven through conduct. In February I wrote about In re Mullen, currently pending in the Ohio Supreme Court. That case will determine whether the presence of a known semen donor who now wants a role in the child's life and who has teamed up with the bio mom can negate a nonbio mom's claim.

The two judge majority in this opinion really stretched to decide the way it did. The forceful dissent cited rulings from the Ohio Supreme Court and other appeals courts allowing nonbio moms to obtain visitation and shared custody. The dissent chastises the majority for relying on a case in which grandparents sought visitation only and were denied it. In this case, the dissent notes, Rowell is seeking shared custody, which she is allowed to do, and a temporary visitation order is simply designed to maintain the status quo until custody can be decided. Since the court has subject matter jurisdiction to determine custody, it is also authorized by rule to make temporary orders such as this one.

Winning in court makes for good law, but the clients who go through these grueling cases mostly care about maintaining their parent-child relationship. A nonbio parent who wins and faces a recalcitrant bio parent doesn't get what she and her child deserve. The most famous recalcitrant bio mom in the country is, of course, Lisa Miller of the infamous Miller-Jenkins cases. Several levels of courts in two states have ruled against her and still Janet Jenkins has no relationship with her child.

I hope this case goes to the Ohio Supreme Court and is reversed. If it stands, bio moms can drag out custody proceedings almost indefinitely and eliminate a child's second mother by the sheer passage of time.


Vicki Ferrara said...

Totally "grueling",and it is so frustrating when the law and/or courts cannot catch up with the reality of the child's life. This reminds me of the very frustrating cases we have in Connecticut under Roth v. Weston and Troxel. Thanks for keeping us posted on these cases! Vicki Ferrara

Maddie's mom said...

How dare you jump to conclusions about my life and my family and then spit them out as fact on your website. While you are certainly entitled to your opinion, I would suggest you preface your "opinions and assumptions" accordingly.

Ms. Rowell never functioned as a “parent” or in a “parent-like” role with my daughter. This fact has been assumed throughout this case in order for Ms. Rowell and her lawyers to whip up the GLBT community.

Because Ohio statutory law doesn’t authorize gay adoption, Ohio courts recognize and encourage gay parents to enter into custody agreements as a way to formalize and legalize non-birth parental rights. GLBT lawyers have made thousands of dollars in legal fees drafting and executing such agreements on behalf of gay families and now are making hundreds of thousands of dollars trying to convince courts they are not necessary. I did not enter into such an agreement with Ms. Rowell.

For the past 3 years, however, these same GLBT lawyers have waged a full-frontal assault on gay parents by injecting the courts, court personnel and lawyers into the lives of gay families like mine. In a hypocritical display of financial and political self-dealing, they have essentially said, “Gay parents, you’re too stupid to manage your own families and we (the system) know better. For the right price, there’s no need for a custody agreement, we’ll get the courts to force one.”

In case after case, gay moms and dads are being targeted for a life full of judicial and legal intervention solely because they’re gay. The consequences of such blatant discrimination are dire and incredibly destructive: personally, financially and to GLBT families everywhere. And this is happening without even a hearing being held on the merits!

I am a gay mom who intentionally did not enter into a shared custody agreement with my then girlfriend for reasons that are my own. A fact that was not a secret to Ms. Rowell or anyone else close to us. When Ms. Rowell and I split, while Ms. Rowell was still living in my home and had daily contact with my daughter, she chose to sue me rather than actively participate in the mediation I arranged and paid for in an effort to arrive at an amicable solution. During the 975 days these so-called “temporary orders” were pending, I’ve watched Madison go from being a secure and happy child to withdrawn, needy and confused because a court forced her to be away from her only mom—me for days and weeks at a time, I didn't have a right to say no and she is now told to call a woman she knew as "Julie", as mom. That’s right, Ms. Rowell hasn’t had to prove her case and still, she was given what amounts to shared custody of this child in time and decision making authority.

I’m writing you because these GLBT lawyers want it both ways: they want to take Gay parents’ money to execute agreements and on the other hand, they have been willing to place Constitutional rights on the back burner and cannibalize their own. I’m writing this because I think we can agree such hypocritical behavior merely reinforces the notion that GLBT parents are “separate and NOT equal” and ensures the relegation of us to "second class citizen status." After all, if we allow the degradation of the most fundamental of all rights, the right to raise our children as we see fit, what's next?

It is time for the truth the come out in this case and for these GLBT lawyers to stop bankrupting, destroying and stripping their own of everything from their children to their Constitutional rights all under the guise of advancing the cause. The Machiavellian "ends really DON'T justify the means." There is a right way to go about such change. Sacrificing our own, sacrificing Constitutional rights and sacrificing our children is not the right way to forge progress.


Julie Smith

Nancy Polikoff said...

My opinion about the law remains the same even after reading your comment. The appeals court said a trial judge has no authority, in any factual situation, to issue a temporary visitation order to someone in your ex-partner's position. I think that is wrong. I have no knowledge of the facts of your family's life, and it is for a judge to sort out the facts if you and your ex disagree about them. But the law made by this case says that, even when the evidence of co-parenting by agreement is uncontested, the judge cannot order visitation while the case is pending. That will deprive a child of a person they consider a second parent and is, in my opinion, bad law.

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