Ohio Lesbians Fight Custody Suit

Judge rules child’s best interest, not status of parents’ relationship, key issue

A unanimous Ohio appeals court ruled on October 11 that a lower level family court must reconsider a petition from a lesbian couple for a shared custody arrangement.

The Warren County Juvenile Court had previously rejected the petition from Jennifer and Cheryl McKettrick, concluding that it would not be in the best interest of the child for both women to share legal custody. Heather Sawyer, of Lambda Legal, was the lead counsel for the McKettricks’ appeal.

The case involves an unusual set of facts. According to the opinion of Judge James E. Walsh, the petition alleges that “Cheryl donated an ovum which was fertilized and implanted in Jennifer, who gave birth to J.D.M. on in March 2001.” By complying with Ohio statutes governing donor insemination, Jennifer and Cheryl assured that J.D.M., the initials used to protect the child’s identity, would have no legal father.

Since the boy’s birth, the two women, who have been domestic partners since June 1998, have raised him together. According to a clinical psychologist appointed by the juvenile court, “J.D.M. appears in all respects to be happy, loved and well-cared for, and both parties are fit parents.”

The women jointly petitioned the lower juvenile court to approve their shared custody agreement, but that court dismissed their petition after a hearing, stating that the court could not see that the agreement provided any benefit to J.D.M. and that its terms were so general that it was unclear what would happen if the women separated. Interestingly, the juvenile court made no determination whether J.D.M.’s legal mother was Jennifer, the birth mother, or Cheryl, who produced the ovum and is thus the biological mother

Undeterred, the women had their agreement redrafted to take account of the court’s concerns by including much more detail, but the judge rejected it a second time, once against asserting that so long as the women were living together with J.D.M., the court could see no purpose for the shared custody agreement, and was leery about letting the birth mother limit her future discretion to make decisions in J.D.M.’s best interest.

The court also asserted that the women could achieve their intended result by executing powers of attorney, wills and written releases.

The women appealed and found a more receptive ear at the 12th District Court of Appeal. It seems part of the problem was that the lower court, perhaps reflecting the normal routine, considered shared custody agreements to be something a court approves when a couple is breaking up, not staying together to raise a child. Thus, with no controversy between the parents, there was no need for a shared custody agreement. But Walsh observed that this view was inconsistent with a 2002 decision by the Ohio Supreme Court in another lesbian parenting case in which it seemed to approve the idea of shared custody.

Concluding that current Ohio law does not require a controversy between the parents as a prerequisite for a shared custody order, the court concluded that the juvenile court judge was in error on this point.

On the issue of the child’s best interest, Walsh found that the juvenile court had failed to follow the course prescribed by the Ohio Supreme Court the earlier case, by failing to determine who was the legal mother and then establish whether it was in the child’s best interest for the other parent to have a legal relationship with the child. Thus, the juvenile court must determine whether the birth mother or the ovum donor should be considered the legal parent. The court of appeals gave no clue as to its thinking on this question.

Turning to the question of the child’s best interest, Walsh disputed the approach taken by the juvenile court judge.

“J.D.M. benefits from having two caregivers, legally responsible for his welfare,” wrote Walsh. Furthermore, noted the judge, the psychologist had given both women high marks as parents.

The appellate court returned the case to the juvenile court with instructions first to determine the legal mother and then to evaluate whether a shared custody agreement between the legal mother and the other mother was in J.D.M.’s best interest.

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