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.