Several weeks ago, the Ohio Supreme Court issued a decision in In Re Mullen; Hobbs v. Mullen, et. al. involving the parental rights of a same sex couple. The lesson for same sex parents is as follows. GET IT IN WRITING.
In the case, Michele Hobbs and Kelly Mullen, a same sex couple, decided to have a child. A male friend agreed to donate his sperm and Mullen became pregnant through an in vitro fertilization procedure.
The women acted as co-parents. The women shared the financial responsibility of the in vitro fertilization process, Hobbs was present when Mullen gave birth, the women created a ceremonial birth certificate listing both of them as the baby’s parents, Mullen executed a will, naming Hobbs the guardian of the child, as well as a health care power of attorney and general durable power of attorney for the child, naming Hobbs as the child’s agent. Mullen acknowledged that she considered Hobbs to be the child’s co-parent in each document.
The custody issues began when the couple broke up after several years. Mullen moved away with the child and Hobbs filed a complaint for shared custody and a motion for visitation with the Court.
The question before the Court was whether the conduct of Hobbs and Mullen created an agreement for permanent shared legal custody of the child. In Ohio, a parent can give up his paramount right to custody of his child through a contract or agreement. The Court found that there was no such contract in this case, despite the actions of the couple indicating an intent to co-parent. The Court went on to state that the best way to safeguard the custodial rights of the non-genetic parent would have been to create a written agreement or contract that stated how custody was to be shared and the degree to which it would be revocable or permanent.
Bear in mind, however, that even if the Court had found that Mullen gave up her paramount right to custody of the child, the Court would still need to decide whether Hobbs was a suitable person to be a custodian of the child or whether shared legal custody was in the child’s best interest, in order for Mullen to have been granted custodial rights.
Takeaway- Before becoming parents, same sex couples should have an agreement drafted which specifically states that the genetic parent acknowledges his or her paramount right as a parent and permanently relinquishes that right and specifically how custody is to be shared during the relationship and upon the event of the couple breaking up. Due to the importance of this document, it would be a good idea to have a lawyer draft it. Same sex couples may also wish to explore a cohabitation agreement in regard to property division in the event of the couple’s separation. See http://www.perlalaw.com/cohabitation.html