Login | December 18, 2018

9th District reverses same-sex custody case

Legal News Reporter

Published: November 13, 2017

A Summit County Juvenile Court abused its discretion in ruling that a mother relinquished partial custody rights to her domestic partner, the 9th District Court of Appeals recently found.

Appellant S.Z. and cross-appellant R.K. appealed the lower court’s judgment.

According to court records, S.Z. (“Domestic Partner”) and R.K. (“Mother”) were in a long-term, same-sex romantic relationship.

Although same-sex marriage was not legally recognized at the time, they did participate in a civil commitment ceremony.

Mother conceived twins G.R.-Z and C.R.-Z in 2012 while the women were still a couple.

J.A. donated his sperm for the conception and signed an agreement relinquishing his parental rights to the children and releasing him from any obligation to pay child support. J.A. was proven to be the biological father of the twins with genetic testing.

Mother intended for J.A. to remain a part of the children’s lives as an “uncle.”

In 2014, Mother and Domestic Partner separated. Domestic Partner moved out of Mother’s home, where the children lived, in July of that year.

In June 2015, the women agreed Domestic Partner was to have weekly two-hour supervised visitation with the twins and would help with basic living expenses.

In October 2015, Domestic Partner filed a motion for legal custody. She later asked the court to allow her sister to attend visitations with her.

The juvenile court expanded Domestic Partner’s visitation to weekly four-hour unsupervised visitations on alternating Saturdays and Sundays.

Mother and J.A. sought to dismiss Domestic Partner’s motion for legal custody. The juvenile court judge denied the motion to dismiss.

The lower court then incorrectly found Mother intended to permanently relinquish a portion of her custodial rights to the children, 9th District Judge Donna J. Carr stated in her 3-0 opinion.

Judge Carr noted that the women’s written agreement was designed to help them raise the children “in a stable and loving environment” while granting Domestic Partner some visitation and detailing her financial obligations.

“Significantly, throughout the contract, Mother was consistently referred to as `custodial parent,’ while Domestic Partner was referred to as `non-custodial parent,’ Judge Carr wrote.

“Nowhere is there an expressed intent to share custody; in fact, the agreement reflects that only Mother would have custody. By consistently characterizing Domestic Partner’s interest as `non-custodial,’ the plain language of the agreement shows that Mother never intended to relinquish any portion of her custody of the children. The only contractual mechanism recognized under Ohio law which allows a parent and non-parent to share in the rights and responsibilities relevant to the care and upbringing of children is a shared custody agreement.”

Meanwhile, the Domestic Partner’s argument that the juvenile judge erred by refusing to consider whether shared custody was in the best interest of the children was deemed moot by the appellate court.

The lower court’s judgment was reversed and remanded, with appellate judges Jennifer Hensal and Lynne Callahan concurring.

“As a final note, this Court is concerned that no guardian ad litem was appointed to represent the best interest of the children,” Judge Carr stated. “Although it was a moot point in this case because the parties had not attempted to enter into a shared custody agreement, where such an agreement exists and implementation of that agreement hinges on the best interest of the children, the appointment of a guardian ad litem is warranted.”

The case is cited In re G.R.-Z., 2017-Ohio-8393.