Ohio Supreme Court hears arguments in same-sex parental rights case
The Ohio Supreme Court recently heard arguments in a case that centers around whether a same-sex couple shares parenting rights to children born through artificial insemination while they were in a relationship in the same way a heterosexual couple would.
The court is taking up a challenge to a First District Appeals Court decision in which the appellate court ordered a legal “would-have-been-married” test to decide whether things would have been different if the couple’s potential marriage had been recognized in Ohio.
Priya Shahani and Carmen Edmonds were in an 11-year relationship, and three kids carried the hyphenated last names of the two when they were together. Attorneys say marriage was discussed, Edmonds’ lawyer said she proposed and Shahani said yes. But a trip to Boston that could have ended in marriage did not, and their home state didn’t recognize same-sex marriage. Ohio also doesn’t recognize common-law marriages that occurred after 1991.
The U.S. Supreme Court decision in the 2015 Obergefell decision legalized same-sex marriage nationwide, and it required all states to them regardless of where they were performed. But it came after the couple went to Boston, and Shahani and Edmonds were never legally married.
When their relationship ended, however, they entered into a shared custody agreement for the three children, an agreement that is in dispute by the couple. The hyphenated names for the children were removed by Shahani after the agreement was already in place.
Attorneys want the Ohio Supreme Court to decide whether to apply parental rights to Edmonds in a way that presumes the couple would have been married had it been legal.
Paul Kerridge, attorney for Shahani, called the “would-have-been-married” standard proposed by the appellate court “unworkably speculative,” with the potential to cause a ripple effect in the legal world “because every part, every factor in that standard, would also apply to relationships that didn’t include marriage.”
“Really what the First District did here is create common-law marriage without saying that there was a creation of common-law marriage, and creating an exception to a statute without ever saying that’s what they were doing,” Kerridge told the court on Tuesday.
Obergefell recognizes marriages and allows that same-sex couples should have access to the full “constellation” of rights under marriage, including parental rights. But does not extend that right to unmarried couples, Kerridge argued.
“Marriages have licenses and they have signatures, and it’s a known entity of what kind of relationship and the change in your personal rights and obligations, that’s a known entity that you’re entering into,” he said.
While the case is based on a custody battle, Edmonds’ attorney, Jonathan L. Hilton, called custody “a poor-man’s version of parentage.”
He said Edmonds struggles to obtain medical records or school records for the children she once shared with Shahani, and didn’t receive notice or have legal standing when her last name was removed from the children’s surnames.
“So you have children who have hyphenated names — their very identity — being changed, and my client has no more rights in that situation than a babysitter,” Hilton said.
The shared custody agreement allows Edmonds to see the kids about 30% of the time, Hilton said. But if a partner of Shahani wanted to enter into the adoption process for the children, Edmonds would have limited rights.
Justices went back and forth with the attorneys about whether Obergefell applied to two people who never were legally married, and whether the shared custody agreement was equivalent to a marriage document in terms of giving parental rights.
“It seems like you’re advocating for a really impossible standard,” Justice Patrick DeWine said to Hilton. “You have one parent who says ‘I wouldn’t have got married,’ you’ve got one parent who says ‘I would’ve gotten married.’ How can a court really sort that out? Because no one actually knows what someone would have done, and if they would have been married, the rights would have been different.”
Justice Jennifer Brunner pointed to the history of the Obergefell case, in which Ohioan Jim Obergefell’s husband was terminally ill, and the two got married on a Maryland tarmac before flying back to Ohio, even though it was not recognized in their state.
“There was that issue of consent there, that both parties wanted it regardless,” Brunner said. “And what proof do we have of that consent to marry when they didn’t get married?”
Hilton argues the children’s hyphenated names, the shared custody agreement, and the engagement prove a plan was in place for Edmonds and Shahani.
“We have (Shahani’s) consent here to shared parentage, and the only way that they could’ve gotten shared parentage would be to have this kind of union,” Hilton said.
Justice Patrick Fischer pushed back, saying the supreme court was not facing a question on the custody agreement, but rather on whether parental rights should extend despite the lack of a marriage license.
“If the shared custody agreement continues, as a matter of fact, I know as a matter of law there may be a difference, but as a matter of fact, day-to-day, for the best interests of the children, anything we decide here doesn’t change a thing,” Fischer said.