Ohio Supreme Court Rules Against Lesbian Mom

LGBT activists and parents have expressed outrage after the Supreme Court of Ohio upheld lower court rulings that a biological mother who acknowledged her same-sex partner 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.

The 4-3 decision authored by Justice Robert R. Cupp, affirmed a 1st District Court of Appeals ruling that "competent, credible evidence supported the Hamilton County Juvenile Court's judgment that although Kelly Mullen of Cincinnati shared the responsibilities of parenting her daughter Lucy with former partner Michele Hobbs while the women lived together, Mullen's actions did not confer on Hobbs a permanent right to shared custody of Lucy after her relationship with Mullen ended."

This decision came even as the court acknowledged that the two women had jointly planned Mullen's insemination and pregnancy and shared parental duties; 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 and had also executed general and health care powers of attorney allowing Hobbs to make school, health care, and other decisions for Lucy.

Initially a juvenile court granted Hobbs shared custody but 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 since ending her relationship with Hobbs. She also noted that although Hobbs had suggested executing a written agreement explicitly granting Hobbs shared custody of Lucy on several occasions, Mullen had declined to do so. The court agreed with Mullen, a victory that left many same-sex parents stunned.

"This decision is a tragedy for the child, above all else," said Christopher Clark, senior staff attorney for Lambda Legal's Midwest regional office in Chicago, in a statement. "The court disregarded the overwhelming evidence that Ms. Mullen agreed to parent Lucy with Ms. Hobbs 'in every way.' Regrettably, the decision severs a parent-child relationship between Lucy and the person she knows to be her mother. All Ohio families should be alarmed by this, as a child with a non-biological parent could be taken from their mom or dad in the event of a separation."

Justice Paul E. Pfeifer, in a dissent, wrote that the trial court relied in error upon certain testimony, and that the evidence presented by Hobbs was more than sufficient to establish that Mullen had agreed to cede partial custody to Hobbs. "Can an agreement that another person is a co-parent in every way possibly not include a right to custody? It cannot. The law has not caught up to our culture, and this court has failed to craft a rule that addresses reality. Mullen and Hobbs employed a well-versed lawyer who represents people in their situation, and with his advice did all they could do to protect Hobbs. A maternal relationship existed between Hobbs and Lucy. 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."