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Published: 10/24/2001

Gay couple take custody case to top Ohio court

BY JENNIFER FEEHAN
BLADE STAFF WRITER

FINDLAY - A gay couple who lost custody of the child they intended to raise as their own has asked the Ohio Supreme Court to hear their case.

In a memorandum filed with the state's highest court, attorneys for Robert Decker and David Pope said the 3rd District Court of Appeals incorrectly focused on Ohio's paternity and adoption laws in concluding they were not parents to the little girl, who is now 2.

The court ruled Sept. 28 that the Hancock County men are neither the biological parents nor the adoptive parents of the child and therefore have no claim for custody.

“The 3rd District Court of Appeals should have focused their legal analysis on the law concerning a custody dispute between a parent and a nonparent,” attorneys for the couple said in their appeal. “This case focuses on contractual relinquishment of custody by a parent who is not otherwise unsuitable.

“It is of great public general concern for this court to clarify the enforcement of contracts regarding custody of a child.”

Andrew Van Horn, co-counsel for the men, said the Ohio legislature and the courts have not dealt with the issue of surrogate parents.

“The courts need to address the situation,” he said. “It's our position that the statutes that were applied by the court of appeals were applied erroneously. Those dealt with adoption. They dealt with surrogacy contracts and artificial insemination involving married couples.”

As the appeal points out, “None of the cases cited by the 3rd District Court of Appeals have taken into account the situation which is before us in this case.

“A case involving a party who is the biological mother and another party who does not have any biological ties to the child, but nevertheless, caused the mother to be impregnated ...”

In July, 1999, Mr. Decker's sister, Linda Decker Lowd, gave birth to a baby girl who was conceived through artificial insemination from an anonymous donor.

She had agreed to carry the child for her brother and his partner, in part because they are HIV-positive and did not think they would be able to adopt a child.

The day before the child was born, Ms. Lowd signed a custody declaration in which she relinquished custody of her daughter “to her father, David A. Pope and his lifetime companion, Robert A. Decker, so that they may care for her and rear her as their child.”

Two months later, Ms. Lowd said she thought it would be best for her to raise the baby, and her brother refused to return the child. Ms. Lowd filed for custody in Hancock County Juvenile Court, and the court later ordered shared parenting between Ms. Lowd and Mr. Pope and directed that the child's name be changed to Pope and her birth certificate be amended as such.

The appeals court reversed the ruling and said the custody declaration signed by Ms. Lowd was not a contract.

For the Supreme Court to take the case, attorneys for the couple must establish that it involves a substantial constitutional issue or an issue of great general interest.



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