Debate Forum Topic, 7/26/11

In same-sex couple custody decision; court rules for birth mother

The Supreme Court of Ohio last week upheld lower court rulings that a biological mother, Kelly Mullen, who acknowledged her same-sex partner, Michele Hobbs, as a “co-parent” of her daughter while the two women were in a relationship did not permanently give up her sole custody of the child to create legal shared custody with the partner.
In a 4-3 decision authored by Justice Robert R. Cupp, the Court affirmed a First District Court of Appeals ruling that competent evidence supported the Hamilton County Juvenile Court’s judgment that although Mullen shared the responsibilities of parenting her daughter Lucy with former partner Hobbs, Mullen’s actions did not confer on Hobbs a permanent right to shared custody of Lucy after her relationship with Mullen ended.

Shortly after Lucy’s second birthday, Mullen and Lucy moved out of the house they had shared with Hobbs. Hobbs filed a complaint in juvenile court seeking equal and shared custody and visitation rights with Lucy. Hobbs claimed that Mullen’s acknowledgement of her role as Lucy’s “co-parent” in several documents and Hobbs’ participation in parenting duties during the time she and Mullen shared a home had created a contractual agreement between the women to permanently share legal custody of the child.

A magistrate who reviewed the evidence concluded that Mullen had created a binding agreement to permanently share partial custody of her daughter with Hobbs. The two women had jointly planned Mullen’s insemination and pregnancy. After Lucy’s birth, they shared parental duties. Furthermore, Hobbs had been identified as Lucy’s “co-parent” in documents including a ceremonial birth certificate and Mullen had named Hobbs in her will to act as Lucy’s guardian in the event of her death. She also executed general and health care powers of attorney allowing Hobbs to make school, health care and other decisions for Lucy.

Mullen filed objections to the magistrate’s report, pointing out that each of the documents in which she had granted Hobbs some form of “parental” rights over Lucy had been revocable and that Mullen had in fact revoked them. She also noted that although Hobbs had suggested executing a written agreement (known as a Bonfield agreement) explicitly granting Hobbs shared custody of Lucy on several occasions, Mullen had declined to do so.

Writing for the majority, Justice Cupp said past Supreme Court decisions have held that “the determination of whether a parent relinquishes rights to custody is a question of fact. While acknowledging that Hobbs presented significant evidence in support of her claim to partial custody, Justice Cupp noted that the juvenile court had also considered counter-evidence submitted by Mullen disputing that claim.” He wrote: “The court noted that all the documents created by Mullen which purported to give Hobbs some custodial responsibilities not only were revocable, but were, in fact, revoked by Mullen. Testimony supported Mullen’s statement that she did not intend to relinquish sole custody of the child to Hobbs.

The juvenile court also stated that the evidence did show “Mullen consistently refused to enter into or sign any formal shared custody agreement when presented with the opportunity to do so.”

Chief Justice Maureen O’Connor and Justice Paul E. Pfeifer entered separate dissenting opinions. “Nothing in Bonfield or our prior decisions mandated that an agreement to relinquish sole custody be in writing. But as the facts of this case show, prudence now dictates that the agreement be documented.”

Justice Pfeifer wrote that the trial court relied in error upon certain testimony. “He stated in his dissent that the evidence presented by Hobbs was more than sufficient to establish that Mullen had agreed to cede partial custody to Hobbs. Justice Pfeifer stated the trial court had incorrectly relied on testimony that Mullen had declined to execute a written agreement explicitly granting Hobbs shared custody of Lucy. Pfeifer wrote, “The lack of a Bonfield agreement does not negate the fact that an agreement to share custody already existed before Lucy was even born.” In his dissent Pfeifer also wrote that the trial court had erred in concentrating on the revocability of the documents.

 

Forum Question of the week:

Did the Ohio Supreme Court make the right decision in the Mullen/Hobbs case involving a same-sex custody dispute, when it ruled for the birth mother and against the shared-parenting and visitation rights of the “social” mother?

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