Ohio Supreme Court rules against parental rights for woman in same-sex custody case

The Ohio Supreme Court this week ruled that a woman does not have parenting rights to children born to her same-sex partner under Ohio law, and that an appellate court applied incorrect logic in wondering what the rights would have been if the couple had been married.

The state’s highest court heard oral arguments in the case one year ago, in which attorneys for the two women, who are no longer in a relationship, debated whether or not a “would-have-been-married” test would decide whether the parental rights were allowed.

Priya Shahani and Carmen Edmonds discussed the idea of marriage during their 12-year relationship, with Edmonds proposing, and a trip to Boston that Edmonds’ lawyers argued could have led to a wedding.

But, because the trip happened before the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, which legalized same-sex marriage nationwide, Ohio would not have recognized the marriage at the time of the Boston trip.

Common-law marriage wasn’t possible either, because Ohio does not legally recognize common-law marriage that occurred after 1991.

Shahani and Edmonds were never legally married, but entered into a shared custody agreement after they broke up.

The three children born during the relationship had hyphenated names for the two women during their relationship, but Shahani chose to remove the hyphenation later.

In juvenile court, Edmonds argued Ohio parentage laws were “deficient and lagging” when it came to same-sex parents, especially following the recognition of same-sex marriage by the U.S. Supreme Court.

A magistrate in juvenile court denied Edmonds’ request to be named a legal parent for the three children, and for shared custody of two of them, but also denied Shahani’s request that the shared custody agreement be terminated for the third child. Edmonds was also awarded “companionship time.”

When both women appealed the case to the First District Court of Appeals, Edmonds brought a new argument, citing a “non-spousal artificial insemination statute,” which allows a husband to be recognized as a biological father for children born to his wife via artificial insemination and donor sperm.

Attorneys for Edmonds argued U.S. Supreme Court precedents “require the statute to be applied gender neutrally so as to include same-sex couples.”

The appellate court decided to bring about a legal “test” they ordered the lower court to use in determining the parenting rights of the couple if same-sex marriage had been nationally recognized when the couple had discussed getting married, and Ohio had recognized the union.

The First District Court of Appeals concluded that under the previous cases, “the statute should be judicially modified to apply retroactively to an unmarried same-sex partner if the couple would have been married, but for Ohio’s ban on same-sex marriage,” according to the Ohio Supreme Court analysis of the case.

The justices of the Ohio Supreme Court did not agree, saying that the artificial insemination statute only applies to married couples, and that the appellate court “erred in empowering the trial court to retroactively create a marriage under this ‘would have been’ standard.”

“How is a court to determine what parties would have done had same-sex marriage been legal in Ohio? Some couples may have chosen to remain unmarried for financial or personal reasons,” Justice Patrick DeWine said in the majority opinion.

“Or, as sometimes happens, the relationship could have ended when the topic of marriage arose.”

The “would-have-been-married” test would set trial courts “out on an impossible mission to retroactively determine whether a different reality would have produced different events,” the justices in the majority stated.

All of the justice signed on to the majority opinion, with the exception of Justice Jennifer Brunner, who agreed with the judgment, but wrote a separate opinion.

The state supreme court noted in the opinion that same-sex marriage was legal in more than a dozen states before the couple ended their relationship, and the couple still chose not to get married.

“If they had, Obergefell would require Ohio to recognize that marriage and (Edmonds) would have a strong argument that the non-spousal artificial insemination statute should be applied in a gender-neutral manner to her,” DeWine wrote.

DeWine went on to say the Obergefell decision “did not consider any retrospective implications of its holding on states that had not previously recognized same-sex marriage.”

In Brunner’s separate opinion, the justice agreed that the appellate court “erroneously decided this case solely on an unpreserved issue,” but also said she would have declined to consider the appeal at all because Edmonds brought up a different argument in her appeal than she did when arguing her rights to the juvenile court.

During the juvenile court case, Edmonds said she’d been a parent to the children “as much as she possibly could, and she believed that denying her and the children the legal rights and obligations that a parent-child relationship confers – simply because the General Assembly failed to update Ohio’s laws post-Obergefell to recognize her family’s formation – was unconstitutional and harmful to her family,” according to Brunner.

“The juvenile court was careful to recognize the importance of the rights at stake here,” Brunner wrote.

“It aptly acknowledged the ‘disconnect between the laws of this state and the precedent set by the highest courts,’ including the failure to ‘make appropriate accommodations for same-sex couples in line with case law regarding family formation.”

But upon appeal, the argument changed to cite the artificial insemination law, something the First District did not have the authority to remedy “when that remedy was never presented to the juvenile court by any party,” Brunner wrote.

The case will now head back to the First District Court of Appeals for further consideration.