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.
Showing posts sorted by relevance for query mullen. Sort by date Show all posts
Showing posts sorted by relevance for query mullen. Sort by date Show all posts
Thursday, July 14, 2011
Thursday, February 3, 2011
Ohio Supreme Court hears argument in claim by nonbio mom
Last year about this time I wrote about three cases in which a bio mom was teaming up with the sperm donor to force a nonbio mom out of a child's life. One of those cases, In re L.K.M., was argued yesterday before the Ohio Supreme Court. Lambda Legal represents Michelle Hobbs, and Lambda Senior Staff Attorney Christopher Clark did a terrific job on her behalf. You don't have to take my word for it; you can watch the oral argument here. You can also read all the briefs filed in the case here, something that is rare in state appeals courts. (And so this is where you can see that this case involves yet another bio mom who accepted help from the virulently anti-gay Alliance Defense Fund and Liberty Counsel, each of whom filed a separate friend of court brief on her behalf.)
The sperm donor's lawyer took only one minute of argument time, but it was enough time for him to say that he is the child's father and never relinquished his rights to Hobbs. The lawyer for bio mom, Kelly Mullen, also made clear that the biological father is exercising legal rights to the child and that Mullen had revoked her agreement with him not to do so. That agreement referred to Hobbs as Mullen's life partner, although she was not a party to it.
Much about this case is the expected scenario, and I reviewed the facts in my earlier post. I predict the court will split, but I could not count enough votes either way to be certain how they will rule. (Out of seven justices, I could really only predict the votes of three of them, and I would put them 2-1 in favor of Hobbs. But any appellate lawyer will tell you that predicting outcome from oral argument is an imperfect business at best).
Because of the relevant statutes, Hobbs' case turns on whether the court finds that Mullen relinquished some of her parental rights. One justice seemed inclined to require a written agreement before finding such a relinquishment, but even Mullen's lawyer did not argue that a written agreement was required. There were some written documents, including a will and a power of attorney giving Hobbs the right to make decisions for the child.
Speaking of their written documents, an important issue that does not get a lot of attention surfaced early in the argument. The couple sought legal advice from one lawyer, Scott Knox, a lawyer with expertise in protecting gay and lesbian families. That's what couples do when they are a happy family, because they are seeking protection as a unit and both women agree about what they want. But one of the justices said in the opening minutes that the lawyer could only represent one partner, and that was Mullen, the bio mom. When Hobbs' lawyer, Christopher Clark said that there was no testimony that Knox advised them of other options (like having separate lawyers or the critical importance of a written co-parenting agreement), the justice commented that he was not required to advise Ms. Hobbs about anything. Later on in the argument, Clark noted that Hobbs had sought advice from Knox earlier on a different issue (although this fact might not have been in the trial record) and that it was not clear who Knox represented.
Not clear who the lawyer represented? This is my idea of a legal ethics nightmare. Lawyers who do this work regularly agonize over when each partner needs a separate lawyer. When the couple shows up and each partner has a different legal status, that difference gives each a distinct position. Would having two separate lawyers have averted this litigation? We can't know, but the fact that the issue loomed large in the oral argument conveys just how important it is.
The sperm donor's lawyer took only one minute of argument time, but it was enough time for him to say that he is the child's father and never relinquished his rights to Hobbs. The lawyer for bio mom, Kelly Mullen, also made clear that the biological father is exercising legal rights to the child and that Mullen had revoked her agreement with him not to do so. That agreement referred to Hobbs as Mullen's life partner, although she was not a party to it.
Much about this case is the expected scenario, and I reviewed the facts in my earlier post. I predict the court will split, but I could not count enough votes either way to be certain how they will rule. (Out of seven justices, I could really only predict the votes of three of them, and I would put them 2-1 in favor of Hobbs. But any appellate lawyer will tell you that predicting outcome from oral argument is an imperfect business at best).
Because of the relevant statutes, Hobbs' case turns on whether the court finds that Mullen relinquished some of her parental rights. One justice seemed inclined to require a written agreement before finding such a relinquishment, but even Mullen's lawyer did not argue that a written agreement was required. There were some written documents, including a will and a power of attorney giving Hobbs the right to make decisions for the child.
Speaking of their written documents, an important issue that does not get a lot of attention surfaced early in the argument. The couple sought legal advice from one lawyer, Scott Knox, a lawyer with expertise in protecting gay and lesbian families. That's what couples do when they are a happy family, because they are seeking protection as a unit and both women agree about what they want. But one of the justices said in the opening minutes that the lawyer could only represent one partner, and that was Mullen, the bio mom. When Hobbs' lawyer, Christopher Clark said that there was no testimony that Knox advised them of other options (like having separate lawyers or the critical importance of a written co-parenting agreement), the justice commented that he was not required to advise Ms. Hobbs about anything. Later on in the argument, Clark noted that Hobbs had sought advice from Knox earlier on a different issue (although this fact might not have been in the trial record) and that it was not clear who Knox represented.
Not clear who the lawyer represented? This is my idea of a legal ethics nightmare. Lawyers who do this work regularly agonize over when each partner needs a separate lawyer. When the couple shows up and each partner has a different legal status, that difference gives each a distinct position. Would having two separate lawyers have averted this litigation? We can't know, but the fact that the issue loomed large in the oral argument conveys just how important it is.
Wednesday, January 20, 2010
When a semen donor teams up with a bio mom...
I write often about the cases in which a legally recognized mom (through birth or adoption) seeks to deprive her children of their other mom, her former partner. Arguments against the second mother invariably invoke a narrow definition of "parent" and sometimes, as in the highly-publicized Miller-Jenkins case, are downright homophobic.
But the cases take a sinister turn when the semen donor teams up with the bio mom. That's what's happening in a California case that's getting attention this month. Bio mom Maggie Quale has become romantically involved with the donor whose semen contributed to the birth of twin boys, and Quale now seeks to disestablish her former partner Kim Smith as a parent of the children. Smith qualifies as a presumptive parent in California because the couple brought the children into their home and held them out as the children of both of them. (Smith's name is on the birth certificate, but, contrary to the excellent Mombian commentary on the case, that's not enough to make her a legal parent. It's the conduct that gives Kim the presumption of parentage.)
Quale's website makes a big point that she and Smith were not married or domestic partners and that they did not do a second parent adoption. But California already defines parentage to presumptively include a woman in Smith's situation, without requiring marriage, DP or adoption. Straight couples do not need to marry in order to both be recognized as a child's parents; the law did away with the stigmatized status of "illegitimacy" decades ago and our community must not recreate it. I don't want two classes of children of lesbian couples, a privileged one for those whose parents marry or enter DPs and a disadvantaged one for those whose parents don't. Given California law, the only reason Quale can argue that Smith is not a parent is because she and the donor have teamed up and can argue that he, not Smith, is the child's other parent. So the case turns on the presence or absence of a father figure and plays on the right-wing trope that every child should be raised by its biological mother and father -- preferably married. (Hmmm. I wonder if Quale and the donor will wind up marrying, or if, given their plea for funds, they might accept legal help from Liberty Counsel or the Alliance Defense Fund as Lisa Miller and other bio parents have.)
Meanwhile, in Ohio, an appeals court ruled against a non bio mom last month in a similar case. The donor and the bio mom have not begun a romantic relationship, but they have teamed up to argue that they should be able to raise their 4 year old child without the non bio mom. Basically, this is the story:
Kelly Mullen and Michelle Hobbs planned for a child together. Kelly was inseminated with semen from Scott Liming, who signed an agreement that he would not be the child's parent. Michelle was present when the child, Lucy, was born. Both women's names appear on the child's ceremonial birth certificate; both women jointly cared for Lucy and themselves out as a family; Kelly, Lucy, and others referred to Michelle as "Momma;" Kelly executed documents giving Michelle the ability to make school, health, and other decisions for Lucy and naming Michelle as Lucy's guardian if Kelly died. The couple split up when Lucy was 2 years old.
Prior Ohio law makes clear that a bio parent can agree to share custody with a non bio parent, thereby partially relinquishing parental rights. The agreement does not have to be in writing and can be proven by conduct. Nonetheless, the appeals court upheld a trial court ruling that Kelly had not partially relinquished her parental rights to Lucy.
In an interview about the litigation last year, the semen donor, Scott, said that he and Kelly "really wanted it to be one mom and one dad so that [Lucy] would not be confused as an adult." Scott and Kelly sat down with a local tv station to set out their case that they are the child's parents. You would never know from that interview that Scott signed an agreement with Kelly that he would not claim parental rights -- an agreement that the court is not holding him to. The trial court ruled that Scott could file for an allocation of rights and responsibilities to Lucy, and Kelly does not appear to oppose that. Scott's presence in the litigation wasn't necessary for the court to erase Michelle from her daughter's life, but I can't believe it had no impact.
The gay rights legal group GLAD also handled a custody challenge involving a bio mom who teamed up with a known donor to challenge parentage conferred on the bio mom's civil union partner. GLAD briefly describes the case, C.P. v. R.D., in a 2009 publication (scroll to page 11). Their lawyers have told me that the case settled, so there will be no precedential court ruling from it.
For most of the last 20 years, the focus of legal concern with known semen donors has been the potential that they would disrupt the lives of lesbian couples raising children by changing their minds and trying to claim parental rights. These recent developments suggest a new cause for worry -- that, if the lesbian couple raising the child splits up, the donor gives the biological mom a possible trump card in a dispute over custody or visitation. There may legitimately be instances where all three adults should be recognized as parents (DC and Delaware law at the moment hold the potential for producing such a result), but none of these three cases fall into that category. Facutally, these families were all a child/children with two moms as the parents, and the presence of a known donor shouldn't divert a court from recognizing that.
But the cases take a sinister turn when the semen donor teams up with the bio mom. That's what's happening in a California case that's getting attention this month. Bio mom Maggie Quale has become romantically involved with the donor whose semen contributed to the birth of twin boys, and Quale now seeks to disestablish her former partner Kim Smith as a parent of the children. Smith qualifies as a presumptive parent in California because the couple brought the children into their home and held them out as the children of both of them. (Smith's name is on the birth certificate, but, contrary to the excellent Mombian commentary on the case, that's not enough to make her a legal parent. It's the conduct that gives Kim the presumption of parentage.)
Quale's website makes a big point that she and Smith were not married or domestic partners and that they did not do a second parent adoption. But California already defines parentage to presumptively include a woman in Smith's situation, without requiring marriage, DP or adoption. Straight couples do not need to marry in order to both be recognized as a child's parents; the law did away with the stigmatized status of "illegitimacy" decades ago and our community must not recreate it. I don't want two classes of children of lesbian couples, a privileged one for those whose parents marry or enter DPs and a disadvantaged one for those whose parents don't. Given California law, the only reason Quale can argue that Smith is not a parent is because she and the donor have teamed up and can argue that he, not Smith, is the child's other parent. So the case turns on the presence or absence of a father figure and plays on the right-wing trope that every child should be raised by its biological mother and father -- preferably married. (Hmmm. I wonder if Quale and the donor will wind up marrying, or if, given their plea for funds, they might accept legal help from Liberty Counsel or the Alliance Defense Fund as Lisa Miller and other bio parents have.)
Meanwhile, in Ohio, an appeals court ruled against a non bio mom last month in a similar case. The donor and the bio mom have not begun a romantic relationship, but they have teamed up to argue that they should be able to raise their 4 year old child without the non bio mom. Basically, this is the story:
Kelly Mullen and Michelle Hobbs planned for a child together. Kelly was inseminated with semen from Scott Liming, who signed an agreement that he would not be the child's parent. Michelle was present when the child, Lucy, was born. Both women's names appear on the child's ceremonial birth certificate; both women jointly cared for Lucy and themselves out as a family; Kelly, Lucy, and others referred to Michelle as "Momma;" Kelly executed documents giving Michelle the ability to make school, health, and other decisions for Lucy and naming Michelle as Lucy's guardian if Kelly died. The couple split up when Lucy was 2 years old.
Prior Ohio law makes clear that a bio parent can agree to share custody with a non bio parent, thereby partially relinquishing parental rights. The agreement does not have to be in writing and can be proven by conduct. Nonetheless, the appeals court upheld a trial court ruling that Kelly had not partially relinquished her parental rights to Lucy.
In an interview about the litigation last year, the semen donor, Scott, said that he and Kelly "really wanted it to be one mom and one dad so that [Lucy] would not be confused as an adult." Scott and Kelly sat down with a local tv station to set out their case that they are the child's parents. You would never know from that interview that Scott signed an agreement with Kelly that he would not claim parental rights -- an agreement that the court is not holding him to. The trial court ruled that Scott could file for an allocation of rights and responsibilities to Lucy, and Kelly does not appear to oppose that. Scott's presence in the litigation wasn't necessary for the court to erase Michelle from her daughter's life, but I can't believe it had no impact.
The gay rights legal group GLAD also handled a custody challenge involving a bio mom who teamed up with a known donor to challenge parentage conferred on the bio mom's civil union partner. GLAD briefly describes the case, C.P. v. R.D., in a 2009 publication (scroll to page 11). Their lawyers have told me that the case settled, so there will be no precedential court ruling from it.
For most of the last 20 years, the focus of legal concern with known semen donors has been the potential that they would disrupt the lives of lesbian couples raising children by changing their minds and trying to claim parental rights. These recent developments suggest a new cause for worry -- that, if the lesbian couple raising the child splits up, the donor gives the biological mom a possible trump card in a dispute over custody or visitation. There may legitimately be instances where all three adults should be recognized as parents (DC and Delaware law at the moment hold the potential for producing such a result), but none of these three cases fall into that category. Facutally, these families were all a child/children with two moms as the parents, and the presence of a known donor shouldn't divert a court from recognizing that.
Friday, May 4, 2012
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.
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.
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.
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.
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