Ohio court finds bio mom cannot block nonbio mom's custody action by allowing her subsequent husband to adopt the child

After bio mom, J.L.G., and nobio mom, M.L.G., split up, J. married a man and the couple completed a stepparent adoption of M.E.G., the child born to J.  An Ohio judge held last week, in In re M.E.G., that the adoption did not divest the court of the ability to hear the nonbio mom's petition for custodial rights to the child.  The stepparent adoption took place after a nine day trial over a six week period in the fall of 2010, after which a Magistrate ruled that the bio mom had, through her actions, ceded part of her custodial rights to the nonbio mom.  The adoption was finalized in January 2011, and the next month the bio mom tried to use that as a basis to dismiss nonbio mom's custody action.

Ohio does not permit second parent adoption, but it does have a doctrine whereby a nonbio mom can retain some rights to the child after the couple splits up if the court finds the bio mom relinquished partial custody rights to her ex-partner.  In this case, the Magistrate found that she did, and the judge reviewing that ruling agreed.  The bio mom relied on last year's dreadful In re Mullen decision from the Ohio Supreme Court (which I wrote about here), claiming that the lack of a written co-custody agreement defeated her ex-partner's claim.  The judge cited language from that opinion, however, to the effect that, while such a writing would be the best way to safeguard each party's rights, a written agreement is not a requirement.

The court's opinion cites what by now is a familiar litany of co-parenting decisions.  The couple planned for and jointly paid for the donor insemination conception and birth of the child, and the nonbio mom fully participated in the pre-natal care and birth; the child's name derived from that of the nonbio mom, and the child called her "mommy;" the couple shared all parenting for more than five years and chose caregivers and school together; the couple held themselves out as a family; the nonbio mom was listed as a parent on school forms, even after the couple separated. The nonbio mom also changed her last name to that of the bio mom so that she and the child would have the same last name. The bio mom testfied that she never intended to relinquish her custodial rights, but the court found that the "overwhelming" evidence demonstrated otherwise.  The reviewing judge also agreed with the Magistrate's decision that the finding was in the child's best interests, and noted that the bio mom had already been found in contempt of court for her refusal to honor temporary court orders.

It remains a source of fury to me that I have to count this case in the "win" category because the bio mom did not succeed in completely removing the nonbio mom from their child's life.  But the court did make clear that the nonbio mom did not have the right to block bio mom's husband from adopting the child because she was not the child's parent.  Except she is her daughter's parent.  And she would be her legal parent in Washington, New Mexico, Oregon, and Washington DC based on her participation in the child's conception, and in California, Colorado and Delaware based on functioning as a parent, otherwise known as "holding the child out" as her child. I look at that list of states and it looks so short, and leaves so many parent-child relationships unprotected.