Tuesday, February 28, 2012

Trial court gives decisive win to nonbio mom in long-running Ohio dispute

In a 41-page opinion, an Ohio Magistrate has awarded shared legal and physical custody of 8-year-old Maddie Smith to her biological mother, Julie Smith (Smith) and her nonbiological mother, Julie Rowell (Rowell).  This is the latest stage of the long-running Rowell v. Smith dispute I have written about before.  The case has been going on since October 2008, when Rowell and Smith separated and Smith denied Rowell all access to their daughter.

Magistrate Kathleen Knisely devoted most of the 41 pages to factual findings after extensive testimony.  She noted that almost all the facts were disputed.  Smith claimed that Rowell was not involved in planning for the child and had no parental responsibility for her and that she and Rowell were not even life partners.  Rowell presented them as a couple that was equally involved in planning for and raising the child.  The magistrate found that "Smith's testimony, and that of her supporting witnesses, are not credible or supported by any of the ascertainable objective facts and witnesses."  Smith's witnesses for the most part appeared uninformed or misinformed about Rowell's relationship with Maddie.  For example, "each and every one" was surprised to learn that Smith had filled out forms listing Rowell as a parent or co-parent and listing Rowell's parents as grandparents.

Rowell's lawyers, Lee Ann Massucci and Carol Fey, presented overwhelming, detailed evidence about Rowell's involvement in planning for a child, in the pre-natal care and birth, and in making the decisions about Maddie's care for the first five years of her life.  A school administrator testified that the couple presented as equal parents and that the school dealt with them in that way.  Photographs, videos, and such things as mother's day cards and gifts all supported Rowell's version of their family.

The couple had no written agreement nor any wills or other legal documents.  Smith said she never intended to share parental rights with Rowell, never considered her part of her family.  Magistrate Knisely found that "Smith's actions belie her adamant position" and that the failure of both women to prepare important documents was something many individuals did.

The magistrate concluded that Smith "contractually relinquished shared custody of Maddie to Rowell" and that she "acceded to and actively fostered the formation, establishment and growth of a parental relationship between Rowell and Maddie."  Rowell, the magistrate found, "assumed the obligations of parenthood by taking signifcant, equal, responsibility for Maddie's care, education and development as well as contributing financially to Maddie's support without any expectation of financial compensation...Rowell has acted in this parental role for an extended period of time and has a fully developed, bonded parental relationship with Maddie."

The evidence showed that Smith repeatedly violated both the letter and the spirit of temporary visitation orders.  For example, when Rowell was to have Maddie after school at 5 pm, Smith informed the school not to allow Rowell inside the building and arrived at the school herself to walk Maddie out the door, where the child would run to Rowell and leap into her arms.  Smith had twice been found in contempt of court and given three day suspended jail sentences for her noncompliance with visitation orders.  Smith argued that Maddie was afraid of Rowell, but the magistrate found no evidence to support that and furthermore found that it was Smith's actions that caused anxiety for Maddie.

When the magistrate noted that Smith was unlikely to comply with court orders I actually expected her to switch physical custody to Rowell.  She didn't.  She awarded full shared physical custody, on a schedule for each of two full days every week plus three weekend days every other weekend.  Although the couple has shared legal custody, the court gave Smith the right to make final decisions about health care, religion, education, and extracurricular activities.  The order requires consultation with Rowell, something that seems more aspirational than realistic given the history and the magistrate's own findings.

Here are some of my own thoughts about this case.  Rowell is lucky that Maddie continued to feel connected to her and showed happiness (captured on video) at being with her throughout most of the last three years.  When a bio mom succeeds in alienating a child from a nonbio mom, a trial court can feel justified in limiting or even terminating contact.  Given Smith's hostility, I am very skeptical about whether joint physical custody will work.  In fact the research on joint custody after heterosexual divorce shows it is never a good choice in high conflict cases, and Smith turned this into a high confict case.  I know that Maddie has lived with Smith for the three years since the separation, so disrupting that should not be done lightly.  But I can't help but wonder what the court would have done had this been an equally contentious dispute between a formerly married heterosexual couple.  I think it more likely that custody would be switched to Rowell, who could be counted on to allow contact between Maddie and Smith.

Don't get me wrong.  This case counts as a victory for a nonbio mom.  But for all the magistrate's findings about Smith's interference with Maddie's relationship with Rowell, she ultimately gave Smith greater parental authority.

Lurking in the case appears to be a possible move by Smith to be with her new partner, who relocated from Ohio to Boston.  (Smith began this new relationship while she was still living with Rowell).  The order requires either party to notify the court if she intends to move.  This may then lead to a court hearing on whether to modify the time schedule.  Obviously, a move will be the end of shared physical custody.  Perhaps Smith will be concerned about the possibility of switching physical custody to Rowell and will stay in Ohio.  But the fact that the magistrate already gave her greater legal authority may instead embolden her to push the envelope by relocating.  At least we can be confident that Massachusetts will recognize the status granted Rowell by the Ohio court.

Under Ohio law, a husband who consents to his wife's insemination with donor semen is the legal father of the child born of the insemination, when the insemination takes place under medical supervision.  Ohio law is fairly typical of older "artificial insemination" statutes.  Under the newer statutes in DC, New Mexico, and Washington, parentage extends without regard to the gender or marital status of the birth mother's consenting partner.  Rowell and Smith went to the doctor's office together, and Rowell pressed the syringe plunger for the insemination.  Had a gender and marital status-neutral law been in effect, the couple would have been presented with a consent form, and they would have signed it.  That by itself should settle the question of parentage, with no need for the many years of litigation this case represents.

Meanwhile, this opinion is almost certainly not the last word.  Ohio has two levels of appeals courts, and Smith seems likely to keep fighting in spite of the unassailable factual findings of the magistrate.

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