News from Ohio: Another Lesbian Mother Loses

Here is a recent opinion from Ohio.   I’m sorry to say it treads a familiar path.     

Kelly Mullen and Michelle Hobbs were lesbian life-partners.    They wanted to have a child.   A male friend, Scott Liming, donated sperm for the conception of a child.   He signed an agreement relinquishing parental rights.  

Before following the story to its sad conclusion, I want to note the variability of law.    In some jurisdictions, Liming would have had rights to relinquish, because where pregnancy does not occur via intercourse, the provider of sperm isn’t a parent.   (That’s Washington law, for example.)  The agreement to relinquish rights would therefore be unnecessary.  

In other jurisdictions, Liming would be a legal parent by virtue of being the source of the DNA and his contractual agreement would not have legal force.   Thus, he’d be a parent no matter what.  (I think this might be the result in Massachusetts, though I won’t swear to that.)   

 But in Ohio, the relinquishment is apparently (at least in general) effective, though in its absence it seems Liming would be a parent.      

Mullen became pregnant.   The child was named Lucy.   By virtue of having given birth, Mullen was a legal parent of Lucy.   Hobbs had no legal status as a parent.   But, as the court notes, there is no question but that she played an active role in the child’s life.   

The women split up when Lucy was two.  Mullen and Lucy moved out and Hobbs petitioned for shared custody of the child.   A month later, Liming petitioned for sole custody.  

After a hearing the trial court made factual findings about Hobbs’ role.  These included:  

(1) that she and Mullen had planned for and had paid for the pregnancy together; (2) that Hobbs was present at Lucy’s birth; (3) that Hobbs’s name appeared on the ceremonial birth certificate; (4) that she and Mullen jointly cared for Lucy; (5) that she and Mullen had held themselves out as and had acted as a family; (5) that Mullen, Lucy, and others had referred to Hobbs as “Momma”; (6) that Mullen’s will named Hobbs as Lucy’s guardian; and (7) that Mullen had executed a general durable power of attorney and a health-care power of attorney giving Hobbs the ability to make school, health, and other decisions for Lucy. 

 

Despite these findings, the court held that Hobbs did not have parental rights.  

It appears that she could have gained these rights had the court found that Mullen had agreed to relinquish sole custody in favor of shared custody.  (Ohio seems to generally adhere to a model strongly influenced by contracts.)  But the court did find that the conduct above evidenced such an agreement, particularly because Mullen had refused to enter into a written version of the agreement.   

By contrast, the court found that Liming was a parent, even though he had signed an agreement to relinquish his rights and he played only a limited role in the child’s life.   (This finding wasn’t appealed, so it isn’t discussed in the opinion.  It’s not clear to me why his written agreement is without force.)  

A jurisdiction that relied on a de facto test might have reached a different conclusion, as might a jurisdiction that relied on the intention of the parties at the time of conception.   Ohio’s legal structure lodges extraordinary power in the legal mother of the child.   She can rebuff her partner’s claim, apparently without any regard to the factual record, as long as she refuses to sign a written agreement to co-parent.   

Indeed, it seems that even the donor who signed an agreement relinquishing rights is in a better position than Hobbs.   In closing, the appellate court notes: 

We do not doubt that Hobbs bonded with Lucy. The record is replete with evidence that Hobbs loves this little girl. But the trial court did not err. Hobbs has no legal right to share in Lucy’s custody. 

That’s a sobering and sorry conclusion.  

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27 responses to “News from Ohio: Another Lesbian Mother Loses

  1. Does Ohio allow second-parent adoption?

  2. I think many of the examples you bring concern women who are social mothers but not biological mothers, who wish to maintain that role but are not allowed to/ and on the other hand men who are social fathers who are fighting NOT to have to maintain contact.

    Is this a coincidence or does it reflect a real pattern? If so, might it be possible for the law to differentiate, give greater legal status to social mothers than to social fathers, or would that be gender discrimination in the extreme?

  3. -it seems to me that the law does treat non-biological mothers and fathers differently…. but in the opposite way. Didn’t we discuss the case of the the guy who is conned by his wife into believing the child is his? He can’t get out of parenthood. Being that the court determined that mullins never actually intended to legally share custody, Hobbs also seemed to have been conned by Mullins into caring for a child who wasn’t hers. But then again, maybe these are different locales with different laws.

  4. Leaving the deception issue aside, lets imagine that instead of a lesbian partner, Mullins had been living with her mother or sister, who also helped out financially, bonded with the child, and was given power of attorney. If Mullins decided to move out, would her mother/sister be entitled to any rights?

    How is this situation different?

  5. I do not find this a sad outcome, on the contrary it is wonderful that the genetic father matured and realized his little girl needed him. This read as a truly heart-warming story to me.

  6. Even if you agree with the decision, I’m sorry that your heart is warmed by someone else’s loss.

  7. What loss? The father did not lose his daughter and the lesbian partner had never adopted her? Seems like all the court did was rule on the statusa quo.

  8. Just another point. This piece is wrongly titled “another lesbian mother loses”. The title is wrong. The lesbian mother lost nothing. Her partner lost.

  9. You need not believe the woman who lost was a mother, to avoid gloating at her grief and pain.

    • I’m not gloating at the partner’s pain, but I find it strange that although children alienated via commercial transactions (called donor gametes) from their genetic parents grieve for their loss, such grief is not taken seriously. In my view the grief of such offspring is a far more serious consideration than the grief of a lesbian partner.

  10. The focus should not be on the adult’s loss but on the child’s loss.

    What about a case where a child is conceived out of wedlock/civil union and the dna dad is held liable but he and the child are never allowed by the bio mom to have a meaningful relationship with each other. The mom re-partners and the her partner plays a significantly meaningful role of dad/mom/parent in the child’s life but never wants to or is allowed to officially adopt (which would ALSO mean ending child support payments from dna dad) the mother decides to end the relationship with the partner (for whatever reason) and in so doing terminates the child’s relationship with the man/woman who played dad/mom/parent. This could equally apply to friendships/roommates/grandparents etc.

    Regardless of what the law says, this child’s loss – from meaningful relations with bio-dad/family and social dad/mom/family – to me at least, is what the primary focus should be. Not on the adult’s loss.

    Which ties back to the de-facto arguement – although I don’t think parenting should only be a choice and I do think dna dad/mom should be held responsible but only IF that is in the best interest of the child. It has to begin and end with the child.

  11. Just wanted to add that that is why I think that “sperm/egg donation/vending” and “surrogacy” needs to be handled in a similar way as adoption.

  12. 1-If you read the decision you will see that decision was not based on the best interest of the child- that was scarcely taken into account. It was based on the intent of the biological mother.

    Not that that is a bad thing, as Julie wrote in another post, law is a generalization, it is impossible to tailor it to everyone bests needs in every case.

    2-Regarding the child’s best interest, I am not sure of how a 2 yr old would experience being cut off from the person she has known as “momma” . She is probably young enough to forget it, but let’s say she was 6, 7, or 12?

    3- Why are we playing the either or game again? Why are we behaving as if we can have compassion ONLY for one party? Why all or none? Whether we say functional parent or nothing, or genetic parent or nothing we are falling into a false dichotomy.

    Regarding the best interest of the child, I would be interested to know of any research of how often a step-parent remains in a relationship with a child over the long term once the relationship is over, and how that effects the child’s life- for better or for worse, and what does it depend on…

  13. Kisarita asked: “I would be interested to know of any research of how often a step-parent remains in a relationship with a child over the long term once the relationship is over, and how that effects the child’s life- for better or for worse, and what does it depend on…”

    This is the only scholarly research on children of divorce/step-parenting that I’m aware of and the findings/outcomes – are not very good:
    http://betweentwoworlds.org/comments/?cat=4

  14. Step parenting is an entirely different issue than divorce- many people get divorced without any step parents being involved.

  15. kisarita says “would be interested to know of any research of how often a step-parent remains in a relationship with a child over the long term once the relationship is over”

    Such research has been done, in particular by the professor in sociology Kari Moxnes at Trondheim University, Norway. She says: “it is remarkable that the relationship between stepchildren and stepparents almost always break, when the biological parent and the step-parent leave each other”.

    She thinks that it tells a lot about how we regard parenthood.

  16. I’m with Sandy May.

  17. Nelly, do you have any citations to Moxes’ research?

  18. I think it is very sad that fit loving birth mothers are increasingly under siege from all comers wanting “rights” and access to their kids. We’re told that moms are guilty of “gatekeeping” if they insist on having a say over who spends time with their kids and under what circumstances. Under traditional patriiarchal common law, the married father had all legal custodial rights. Late 19 century feminists worked hard to give mothers rights. For the past 30 years, the fathers rights movement has worked hard to rollback mothers rights. For the first time in history, unwedded fathers have “equal” rights, even if they have never had any commitment to the mother or provided any support. Ditto for sperm donors, where a contribution of bodily fluid is given the same weight as 9 months of pregnancy and actual nurturing. Ditto for assorted control freak ex-lovers who in many cases have never developed a relationship to the child. As for “psychological” parent? Often a rather dubious concept. If taken literally, it could mean that your child’s babysitter, daycare provider, or current teacher could qualify. In fact, babysitters have sued for custody? Where does it stop? This culture has unbelievable hostility towards birth mothers, whether gay or straight, especially if they are single and not under somebody else’s “authority.” Myself, I wasted 11 years of my life and spent a small fortune trying to defend my right to mother my children as I saw fit without interference from hostile others.

  19. silverside, i’m with you. but if you read the case, your concerns should be alleviated- you will see that the court never considered taking custody away from the biological mother but only from her ex partner.

    lest people think I am backing off of my previous post, let it be clear that I never advocated for fathers who display no interest or commitment to their child’s well being be given any sort of authority.

  20. I don’t see why anyone would think the outcome should be any different. If you read the article, it points out that the birth Mom “refused to enter into a written version of the agreement” which translates into that the birth Mom didn’t intend to share custody. I’m guessing in Ohio same sex couples can enter into shared custody and for some reason the birth mother refused to. I think a loving birth mother should absolutely have control over who shares custody – gay, stright or otherwise.

  21. I also think that the headline is inaccurate. It seems that the lesbian MOTHER won. The lesbian mothers partner lost.

  22. Hey I am the father of this child in this situation. A lot facts are missing from this story, including that I have been very much a full time father to my daughter. The women’s relationship was heading south early on at 16 months for our daughter. I moved back to Cincinnati from Florida to be a hands on father at month 3 which was unplanned but welcomed by her birth mother. It was always suppose to be one Mom and one Dad for our childs sake of having as much normalcy as possible in her life. I could fill you all in on more but it would take days not minutes to discuss.

  23. That’s an interesting contribution by Scott. It seems that by almost all criteria then- genetics, holding out, and de-facto parenthood, he fits them bill.

    The ONLY possibly criteria to deny him parenthood is contractual. Would you really have a contract signed before conception override all these aspects?

  24. So Scott, as a gay man, do you intend to enter into a committed relationship with Kelly, a lesbian, to raise your mutual biological child in a “one Mom and one Dad” situation for your child’s sake? If it was always supposed to be “one Mom and one Dad”, why did Kelly ask you to and why did you sign a contract relinquishing your parental rights if you and Kelly “always” intended for you to be present and raise your daughter? Why was your return to Cincinnati then an “unplanned” one if your intentions were as you say? Perhaps everyone had a change of heart after the initial agreements, but the intentions prior to Lucy’s birth are clear to everyone, including the courts. You were to be a sperm donor and the two women intended to raise the child together as their own.

    • From my point of view, the questions raised here highlight problems that arise when you use intention as a test. Often we do not know who intended what when. Worse yet, intentions can change. What I intend today may not be what I intend tomorrow. All of this means there’s a lot of room for uncertainty and for disputes, neither of which are desireable.

      Of course someone ought to note that just using DNA without regard to intention gives you certainty and simplicity. That’s surely true. But ultimately I don’t think that certainty and simplicity are so important that we should choose DNA for that reason. I just want to point out that uncertainty and complexity are drawbacks we ought to consider.

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