Ohio top court amends adoption decision

By Advocate.com Editors

Originally published on Advocate.com December 17 2002 1:00 AM ET

The Ohio supreme court amended an opinion Friday after a lesbian couple seeking equal custody of their children argued that the ruling in their case inadvertently prohibited "second-parent adoption" in Ohio. Shelly Zachritz and Teri Bonfield said the 5-2 August ruling, written by Chief Justice Thomas Moyer, commented on the adoption option even though the high court never has heard a case about it. They feared that the language could infringe on their rights if they ever try to seek such an arrangement. Through second-parent adoption, a gay partner can acquire parental rights without forcing the other partner to relinquish such rights. "Second-parent adoption was never an issue in this case," said Sallee Fry Waterman, the couple's lawyer. "They sort of made a declaration about it without ever hearing arguments on it. It was irrelevant." Without comment, the court agreed to delete three sentences, one of which included the phrase "second-parent adoption is not available in Ohio."

While courts in other states have determined that second-parent adoption is available, Ohio's high court has never ruled whether it is an option in that state. Waterman said the Summit County court of appeals is the only court that has ruled in a second-parent adoption case, but the state supreme court, in a 4-3 vote, declined to review that 1998 case on appeal. In August the supreme court said juvenile courts are allowed to decide custody of children who are not wards of the state, then returned the Zachritz-Bonfield case to the Hamilton County court to decide whether equal custody is in the children's best interests. The juvenile court magistrate had dismissed the joint-custody request and ruled that the court didn't have authority under Ohio law to award parental rights to a person who is not a biological or adoptive parent. The first Ohio district court of appeals upheld the decision.

The suburban Cincinnati couple, who have been together 14 years and have six children between them, argue that they need joint custody in case something happens to one of them. Bonfield adopted two sons in 1996. Using artificial insemination, she gave birth to a son in 1996 and then twins--a boy and a girl--in 1998. Zachritz later gave birth to a son by artificial insemination.