COLUMBUS — An Ohio woman lost her legal bid Tuesday for shared custody of a girl whose conception she planned with the child's biological mother while the women were living as a same-sex couple in Cincinnati.
In a 4-3 decision, the Ohio Supreme Court ruled in favor of the child's biological mother, Kelly Mullen, who claimed sole custody of the girl, who is now 5. Mullen's former partner, Michele Hobbs, shared parenting and financial support of the girl, named Lucy, before the women split up in 2007.
Hobbs argued that the jointly planned pregnancy plus documents citing Hobbs as Lucy's "co-parent" — including a ceremonial birth certificate and will — created a contractual agreement between the women. A magistrate who initially reviewed the evidence ruled the pair had a binding agreement.
But the high court on Tuesday sided with a later decision to the contrary by the 1st District Court of Appeals.
Justice Robert Cupp, writing for the majority, acknowledged that Hobbs presented significant evidence to support her claim to partial custody, but he said Mullen also produced opposing evidence.
"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," he wrote. "Testimony supported Mullen's statement that she did not intend to relinquish sole custody of the child to Hobbs."
He said Mullen "consistently refused to enter into or sign any formal shared custody agreement when presented with the opportunity to do so."
Mullen's attorney Douglas Dougherty said the case had nothing to do with the women's sexual orientation.
"My client is a lesbian and proud of it, and she thinks lesbians should have all the rights that straight people have, and so do I," he said. "The problem here wasn't that it was a lesbian or gay relationship, it was that they didn't love each other anymore, and very sadly didn't respect each other anymore, and my client felt a clean break was in the best interest of the child."
Justices Evelyn Lundberg Stratton, Terrence O'Donnell and Judith Ann Lanzinger joined the majority. Chief Justice Maureen O'Connor, Yvette McGee Brown and Paul Pfeifer dissented.
O'Connor's opinion, joined by McGee Brown, said the court was wrong to accept the case in the first place because it established no new governing principle. One thing it did show, she said: Couples would be prudent to get custody arrangements in writing.
In his dissent, Pfeifer said Hobbs presented more than enough evidence to back up her claim.
"Can an agreement that another person is a co-parent in every way possibly not include a right to custody? It cannot. The trial court seems to agree, and thus turns its emphasis on the fact that the documents were revocable," he wrote. "But the question before the court was whether Mullen agreed to share custody of her child with Hobbs, not whether she eventually came to regret that decision."
He said Tuesday's ruling didn't produce a workable legal rule for dealing with similar cases in the future, and indicated that the case at its heart was about the women's sexual orientation.
"The law has not caught up to our culture, and this court has failed to craft a rule that addresses reality," he wrote. "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."
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