HRC Blog

Ohio Supreme Court Rejects Non-Biological Mom’s Petition for Joint-Custody

This post is by  Roddy Flynn, Summer 2011 McCleary Law Fellow:

Yesterday, July 12, 2011, the Ohio Supreme Court held that Michele Hobbs, who supported her partner Kelly Mullen through in vitro and raised their child together for two years, did not have the right to joint-custody of the five-year-old child.  In its decision, the Supreme Court affirmed decisions by the Ohio Court of Appeals and the trial-level Juvenile Court.  Both lower courts found against Hobbs in her petition for joint-custody. 

Hobbs and Mullen began their relationship in May of 2000.  After being together for three years, the pair jointly decided to have a child.  They contacted a friend of Hobbs, Scott Liming of Georgia, and asked him to donate his sperm so Mullen could have an in vitro fertilization procedure.  Mullen and Liming signed an agreement, relieving Liming of any responsibility or obligation to the child.  However, Liming was still listed as the child’s father on the birth certificate.

Hobbs and Mullen shared all of the expenses of the in vitro process.  Their child was born in July, 2005.  The two women raised the child together for two years before separating in 2007.  Soon after their separation, Hobbs sued Mullen for joint-custody of their child. 

In Ohio, a biological parent and a non-biological-parent may enter into a contract creating a permanent shared-custody arrangement.  Such agreements will be upheld as valid contracts when the juvenile court determines the non-biological co-custodian is a “proper person” who can “assume the care, training, and education of the child,” and that the agreement is in the best interests of the child. 

The Court considered the substantial evidence of a co-parenting relationship.  This evidence included Hobbs’s involvement in the in vitro process and the presence of Hobbs’s name on a ceremonial birth certificate.  Of particular importance to the Court were documents which Mullen signed which named Hobbs as the child’s guardian and gave Hobbs a durable power-of-attorney and a health-care power of attorney, granting her the ability to make school, health, and other decisions for the child. 

However, despite this evidence, the Court’s decision against co-parenting ultimately hinged on the fact that all of the signed documents were unilaterally revocable by Mullen.  The Court also considered the fact that Mullen had “consistently refused” to enter any formal shared-custody or co-parenting agreement with Hobbs.

Finally, the Court looked at the presence of the child’s biological father.  Since Hobbs and Mullen ended their relationship, Liming, the sperm-donor, has moved to Ohio and is actively participating in the child’s life.  Liming had signed a sperm-donation agreement which stated he had no obligation to the child, but he waived that agreement.  The court found this waiver, along with Liming’s presence on the birth certificate, strong evidence that the child currently had two parents participating in her upbringing.

The four-Justice majority decided that there was insufficient evidence that Mullen’s conduct created an agreement to permanently relinquish sole custody of the child to Hobbs.  Ohio has an expansive Defense of Marriage Act, which prohibits any government body, including courts and municipalities, from recognizing any same-sex relationship or creating for non-married couples any recognition which “approximate[s] the design, qualities, significance or effect of marriage.”

Justice Pfeifer issued a dissent suggesting that Hobbs be considered a co-parent.  Justice Pfeifer found that the fact that the documents signed by Mullen were revocable was not important in determining a co-parenting relationship.  The Justice looked at intent at the time that Mullen signed the document, and he believed that the documents show a clear intent to create a permanent, co-parenting relationship. 

Chief Justice O’Connor and Justice McGee issued a dissent protesting the Supreme Court’s decision to hear this case.  The Justices believed the law governing this dispute is “well settled,” and the Court of Appeals decision should not have been reviewed.

Laws regarding the availability and definition of a non-biological co-parent vary significantly from state to state. The Ohio Supreme Court’s decision is not binding on any court outside of Ohio.

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