Thursday, July 14, 2011

Ohio Supreme Court rules against nonbio mom

Over the scathing dissent of a single judge, the Ohio Supreme Court this week ruled that a bio mom, Kelly Mullen, revoked her co-parenting agreement with her ex-partner Michele Hobbs,and that therefore Hobbs could not obtain a hearing on whether she should have joint custody of her now six year old daughter, Lucy. I wrote about the oral argument in the case here.

Ohio does allow a nonbio parent to obtain custody. The legal test is whether the "parent, by her conduct with a nonparent [sic], entered into an agreement through which the parent permanently relinquished sole custody of the parent's child in favor of shared custody with the nonparent." Although Mullen and Hobbs had numerous documents in which Mullen said that she considered Hobbs her child's "co-parent in every way," the court held that the documents were revocable and that Mullen revoked them.

The court reiterated the rule that no written agreement was required to meet the test, yet every nonbio mom in Ohio can count on retaining her status only if she in fact has a written agreement and it contains some magic words that the bio mom is permanently relinquishing sole custody. I say this because the documents in this case appear to do just that but did not have such magic words and somehow the court found them revocable.

The court did not rely on the status of the semen donor in reaching its result, but it did note some things about the semen donor that are worth mentioning because they are atypical (although by no means unheard of). There was a donor agreement between Mullen and the donor, Scott Liming, who was a friend of Hobbs. Hobbs was not a party to the agreement (note to Ohio nonbio moms: be a party to any written donor agreement!). The agreement said Liming's name would be on the birth certificate but that he would have no parental rights and so would have no custody rights and no obligation to pay child support (note to all in Ohio: it was not an issue here, but if everyone agrees the donor is not a parent, keep his name off the birth certificate!). During the litigation, Mullen and Liming revoked their donor agreement. In my earlier post, I wrote about Liming's support for getting rid of Hobbs as a parent. By the way, there was as separate ceremonial birth certificate listing Hobbs and Mullen as Lucy's parents, which the court disregarded along with all the other written documents indicating Hobbs's parental status.

The Ohio Supreme Court repeatedly commented upon Mullen's refusal to sign a shared custody agreement with Hobbs. But, as the dissent points out, the issue of signing such an agreement arose AFTER the relationship between the couple started to fail. Mullen did sign numerous documents before the child was born, and did create a two parent family, and did have the child call Hobbs "Momma," and did go to a lawyer who drew up all those documents precisely to protect Hobbs's relationship with the child. To the fact that the documents referred to Hobbs as a "co-parent," the court said that term was "not synonymous with an agreement to permanently relinquish sole custody in favor of shared legal parenting." The court continued: "'Coparenting' can have many different meanings and can refer to many different arrangements and degrees of permanency."

As I wrote those last words I found myself in pain and furious. It is completely clear what this couple did. They planned for a child together. They had a child and raised her as two moms for more than two years. They wrote documents to protect Hobbs's relationship as the child's parent. The lawyer who wrote those documents testified that he wrote the documents "to protect the rights of the co-parent to be a full co-parent." When they split up, Mullen made an argument that the court bought that removed Hobbs from Lucy's life. "Coparent" may mean different things in different circumstances, but in this case its meaning was clear and the court disregarded it.

I do find myself wondering if the presence of a "father" for the child influenced some on the court. As I wrote about here, Mullen and Liming gave a tv interview in which they said they really wanted Lucy to have one mom and one dad so she would not be confused. Add to that the fact that the Alliance Defense Fund and Liberty Counsel both supported Mullen's position, and you can see this erasure of Hobbs for the rewriting of history that it is.

In some states, a nonbio mom can't even get her foot in the door. (That's you, New York, unless the nonbio mom was married to or in a civil union with the bio mom, or adopted the child). Ohio does let a nonbio mom in the door, but this case suggests that what she has to prove will make it much harder than it should be to protect the child's parental relationships.

The dissent ends with the following: "Mullen taught her daughter to call another woman "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." Lots of parents wish they had not had children with a former spouse/partner. That's a common feeling when the couple's relationship deteriorates and one parent wishes she could raise the child without ever interacting with the other parent. But creating a child together has consequences, and it does tie parents to each other long after their relationship fails. That's the rule for different-sex couples and it should be the same rule for same-sex couples. I'm sorry the Ohio Supreme Court disagrees.


suburban dyke said...

I am a non-bio mom from NJ. This makes me scared and sad. I am in a civil union because NJ allows it and now would automatically be a parent but I had to adopt my kids way back when. This kid was planned for and loved by two moms. I get sick when I think that someone could say that non-bio moms are not in fact a mom.

Nancy Polikoff said...

Thanks for your comment, but please make sure others in new Jersey know that even with a civil union the nonbio mom should get a court order -- either a parentage order or an adoption. All the lawyers who do LGBT family law around the country give this advice to clients. States that do not recognize a civil union may not recognize parentage deriving from a civil union. But every state must respect a court order establishing parentage. So what you did way back when is still what couples need to do!

Lissa Alwaysjaniesmom said...

I lost my child in MN, as well. What I find so ironic is that what is considered a felony for legal parents--withholding a child, is a protected right for a lesbian biological mother who does the same.

It's counter-intuitive to think that removing a parent, indeed, any truly loved one, from a child is good practice. Children cannot have too much love and support.

I find it a horrific thought that a child is, in truth, left behind with the most emotionally incapable parent when a court rules against the non-legal one. Honestly, only an emotional void would hurt a child and former loved one so profoundly. In my case, my ex-partner's abusive behavior towards me during the course of our relationship was well-documented, yet that was the parent thought best.

There is another aspect to this scenario that I never see addressed: in our LGBTQ community we struggle to have our families recognized as legitimate by the larger society. Therefore, in order to get the support to actively undermine those values by withdrawing parental rights, the legal mother must paint the other as a monster. A monster so horrible that separation is imperative. It's abusive and painful.

Finally, it is notable that this issue gets very little attention in the marriage equity struggle. I view it as the single most important protection accorded by marriage. A child's relationship with a parent outstrips every other issue addressed by marriage rights. Why is it ignored?