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SAME-SEX CHILD CUSTODY CASE DECIDED BY OHIO SUPREME COURT

In  a recent Ohio Supreme Court Case, the issue regarded whether a parent, by her conductwith a non-parent same-sex partner, had entered into an agreement wherein she permanently relinquished sole custody of her child in favor of shared custody with the non-parent.

One of the two partners in a same -sex relationship was artifically inseminated and gave birth to a child. The two partners and the child lIved together after the child's birth but the natural mother of the child removed herself and the child from the relationship.

The non-parent partner to the relationship filed an action for shared custody and claimed that the mother of the child, by her actions and conduct, had created a "contract" to have her share legal custody of the child. No parenting or custodial agreement of the parties had ever been submitted to a court for a court's approval.

At the first court level, becuase of the partners listing themselves on documents as "co-parents" and becuse of other actions, the Magistrate found that a contract had, in fact, been created and that the mother had relinquished partial custody to her partner.

The  court, in overruling the Magistrate's decision, looked at the relationship of the women to the child-- one being the child's parent, and the other having no legal relationship. On appeal by the non-parent, the Court of Appeals upheld the lower Court's decision.

The case went to the Supreme Court of Ohio where it was decided that the former partner of the mother had no rights concerning the mother's child.  In deciding this case the Supreme Court considered law holding that parents have constitutionally protected due process righs to make decisions concerning the care, custody, and control of their children and that a parent's right is paramont to any interest asserted by a non-parent. The court also noted that Ohio does not recognize a parent's attempt to enter into a statutory "shared parenting" agreement with a nonparent, same-sex partner because the non-parent is not a "parent."  However the law does recognize that a parent may  voluntarily share custody, care and control of a child through a vaild shared-custody agreement and that such an agreement can be approved by a court if the person with whom custody will be shared is a proper person to assume the care and the agreement is in the best interest of the chid. 

In this case, no "agreement"  in the nature of granting shared custody had ever been entered or approved by a court. Although responsibilities had been shared no enforcable agreement had ever been entered.

Same-sex custody and relationship cases continue to be tried in Ohio and elsewhere and the law in this area is rapidly evolving.  Contact the offices of William Geary If you have a quesiton regarding a custody matter .


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