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The Ohio Supreme Court today announced its decision in In re Mullen (Slip Opinion No. 2011-Ohio-3361) and made it more difficult for a non-biological parent in a same-sex relationship to prove permanent shared custody of a child. Although Ohio law allows for shared permanent custody without explicitly requiring a written agreement, the Court’s decision today effectively makes such an agreement a requirement in the event of a breakup of same-sex couples in Ohio.

After being in a committed relationship for several years, Kelly Mullen and Michele Hobbs jointly agreed to have a child. Kelly gave birth to Lucy Mullen after in vitro fertilization from a friend of Michele’s, for which the couple shared financial responsibility. Michele was present at Lucy’s birth and cut the umbilical cord. Although the donor’s name appeared on Lucy’s official birth certificate, the donor signed an agreement relinquishing custody and Kelly and Michele drafted a ceremonial birth certificate that listed themselves as Lucy’s parents. Kelly also listed Michele as the “co-parent” on three documents — her will, a health care power of attorney and a durable power of attorney, writing that she considered Michele to be Lucy’s co-parent “in every way.”

For two years, Kelly and Michele co-parented Lucy and held themselves out as a family. Thereafter, the relationship deteriorated and Kelly moved with Lucy out of the house that she and Michele had shared. Michele then filed for permanent shared custody of Lucy. The magistrate judge decided that Kelly and Michele had agreed to co-parent Lucy and that it was in the best interests of the child to maintain ties with Michele. Therefore, the magistrate judge recommended that Kelly and Michele share permanent custody of Lucy.

Today, the Ohio Supreme Court held in a 4-3 decision that, despite all of the evidence of co-parenting, the trial court did not err in deciding that Kelly did not agree to permanently share custody with Michele. The Court based its decision primarily on two factors: first, the documents in which Kelly named Michele as her co-parent were revocable; and second, the Court found that the term “co-parent” did not indicate a desire to share permanent custody.

Justice Paul Pfeifer, writing separately in dissent, responded by arguing that an agreement to be a “co-parent in every way” cannot exclude shared custody. He further argued that the question should not be whether the relevant documents were revocable, but whether they were revoked before the pair separated. Because they were not revoked until after the breakup, Justice Pfiefer reasoned that shared permanent custody had been the intent of the couple: “The question was whether Kelly intended to share permanent custody of Lucy with Michele, not whether she later came to regret that decision.”

Justice Pfiefer further stated: “The law has not caught up to our culture, and this court has failed to craft a rule that addresses reality. . . . A maternal relationship existed between [Michele] and Lucy. [Kelly] 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. This ruling is yet another example of how children raised by same sex couples and people in same sex relationships are harmed by the inequalities in Ohio law”

To read the full transcript of the courts decision please Click HERE

*Source:  (Editited) Equality Ohio Press Release

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