Note: This post was researched and written by Mr. Austin Muck, second year law student at SMU, and legal intern for the summer at the Ruth Institute. Dr J
Recently the Supreme Court of Ohio appropriately decided a case that protected the constitutional right of parents to determine what is in the best interest of their children. Subsequently, the Columbus Dispatch published an article putting the decision in negative light. The article left out key facts of the case in order to portray it as an infringement on parental rights of same-sex partners. In the case, Mullen decided to have baby, a decision supported by her girlfriend Hobbs. However, the women split two years after Mullen had the baby. Immediately after the split, Hobbs, with no biological relation, sought partial custody of the child. Hobbs claimed Mullen relinquished her sole custody, because several documents— that were later revoked—listed Hobbs as the “co-parent in every way” and because Mullen held her out as a parent. However, Mullen consistently refused to enter into or sign any formal shared-custody agreement when presented with the opportunity to do so. This is a fact the article fails to mention. The Court ultimately decided Mullen did not manifest a clear intention to relinquish her sole custody rights. This holding reinforces a more bright line rule to create certainty in the law. For a partner to gain custody rights the Court recommends a permanent document detailing each partner’s rights to the child, basically a joint adoption. This keeps courts from determining what is in the best interest of the children and places the authority where it should be, with the parents.
The alternative, championed by the Lambda Legal Defense and Education Fund, would create a gray area in the law. Fit natural mothers have a right to decide whether or not to share custody of their children. Mothers like Kelly Mullen should not have to worry about whether they have inadvertently given up their parental rights to their sex partners.
