by Eric Resnick

Columbus--The first test of whether or not Ohio?s marriage ban amendment affects child custody will be decided in a dispute between two former domestic partners.

The Tenth Ohio District Court of Appeals was asked on March 27 to overturn a Franklin County ruling that the amendment has no effect on custody agreements.

Almost immediately after the amendment passed in 2004, Denise Marie Fairchild asked the Franklin County Common Pleas Court to invalidate a nearly four-year-old parenting agreement with her former partner, Therese Marie Fairchild, now Therese Marie Leach.

Denise is the biological mother of a son, now 12, born of artificial insemination from an anonymous donor. The couple lived together for four years before he was born in 1996. Their relationship ended in 2001, six months after the custody agreement was entered.

The case will have a major role in either narrowing or broadening the amendment?s effect on family law.

The Ohio Supreme Court ruled last summer in an unrelated domestic violence case that the amendment?s second sentence, barring anything that would ?approximate the design, qualities, significance or effect of marriage,? refers only to civil unions.

The purpose of the Fairchild appeal is to broaden the amendment?s interpretation so that it restricts the rights of non-biological parents. If it succeeds, agreements to grant them rights and responsibilities may not be enforceable.

?Granting custody determines, among other things, where a child will live primarily, who will make decisions regarding the care of the child and who may be responsible financially for the child,? wrote the Franklin County court in 2006.

The court pointed out that the amendment can?t apply because the case is about the child.

?Denise equates the granting of custody to a non-parent as somehow promoting a same-sex marriage. The relationship between the child and the custodian is not the same as the relationship between two adults.?

The child?s best interest is a long-standing principle guiding all Ohio family law.

The trial court also held that ?granting of custody does not ?approximate the design, qualities, significance or effect of marriage.? ?

Denise appealed this decision, and the case was heard March 27 by a three-judge panel: Charles R. Petree, Susan Brown, and Peggy Bryant. Danny Bank and Lorie McGaughan of Capital University law school were appointed by the court to represent the child.

Yes, ?defense of marriage act? applies

Denise?s attorneys Keith Golden and Adam Karl of Columbus argued that the court ?has never addressed the legality, constitutionality and public policy matters of the [parenting agreement] in light of [the marriage ban amendment.]? This dispute comes, according to Golden, from a ruling on the suitability of both women to be parents.

Golden also re-asserted a legal point dismissed as nonsense by the lower court, concerning the landmark 2002 Ohio Supreme Court decision In re Bonfield.

In Bonfield, the high court ruled that parenting agreements between unmarried partners were enforceable by courts, overruling two lower courts.

Golden says the lower, overturned decisions should govern in this case because they were the law when the Fairchilds filed their agreement.

Golden focused on Title 31 of the Ohio Revised Code, which contains the definition of marriage and the rules of divorce.

?It determines visitation and custody rights of children,? argued Golden. ?It addresses visitation only where a divorce is involved.?

Golden quoted the 2004 ?defense of marriage act? passed by the Ohio legislature before voters approved the ban amendment. It added to Title 31, ?Any marriage between persons of the same sex is against the strong public policy of this state. Any marriage between persons of the same sex shall have no legal force or effect in this state and, if attempted to be entered into in this state, is void ab initio and shall not be recognized by this state.?

?Pursuant to these statutory definitions,? Golden argued, ?neither the magistrate nor trial court had any statutory authority to enter or enforce the terms and provisions of the [parenting agreement].?

Golden noted that the 1977 Ohio Supreme Court decision In re Perales said that to award custody to a non-biological parent, there must first be a finding that the biological parent is unsuitable.

Perales was also part of the argument in the Bonfield case. The high court distinguished the two by noting there was no parental dispute in Bonfield.

Golden says that there is a dispute in this case, so the court must consider the Title 31 DOMA provisions.

?Nothing in the Revised Code grants parenthood upon a same sex partner and nowhere in this definition may be found an indication that same sex partners were intended by the General Assembly to be parents. Thus, same sex partners are expressly excluded,? Golden argued.

Golden also claimed that last summer?s domestic violence ruling on the amendment, State v. Carswell, ?shows the Supreme Court?s willingness to deny people who are not married the privileges of being married? because it ruled that the phrase ?living as a spouse? in the domestic violence law ?merely identifies a particular class of persons for the purposes of domestic violence statutes.?

?Accordingly,? Golden asserted, ?the courts of Ohio should not confer benefits upon [Therese] as if she and Denise Fairchild were married.?

No, custody is about the child

Therese Leach Fairchild is represented by Columbus attorneys LeeAnn M. Massucci, who is lesbian, Thomas Schmidt of Gahanna, and the Lambda Legal Defense and Education Fund.

Lambda?s Camilla Taylor briefed the court and argued the case. The National Center for Lesbian Rights also filed an amicus brief supporting Therese.

?Denise relies on her biological parenthood and specious legal arguments,? Taylor told the court, ?in an attempt to destroy the bonded relationship between Therese and [the child] that she fostered and encouraged from the beginning, and that she agreed to protect forever.?

?These are exactly the circumstances against which the [parenting agreement] was designed to protect,? Taylor continued.

Taylor argued that the First District Court of Appeals decision reversed by the Ohio Supreme Court in Bonfield was an aberration and not binding on Tenth District courts deciding this case.

?Denise cites recent laws prohibiting same-sex couples from marrying in Ohio to suggest that the [parenting agreement] violates Ohio public policy concerning marriage,? she argued. ?This is an attempt to misdirect the court?s attention from well established jurisprudence to a subject that has no bearing on this case.?

?The [parenting agreement] concerns a child?s relationship with adults, not the adults? relationship to each other,? Taylor continued.

?Moreover, Ohio courts may not discriminate based on marital status or sexual orientation in awarding child custody.?

Taylor called Golden?s claims around the Bonfield case ?wrong on all counts.?

?Ohio courts long have held that when a parent agrees to cede custody of minor children in whole or in part to another person, the parent is bound by that agreement,? Taylor asserted, adding that these court rulings go back over a century.

?The Ohio Supreme Court decision in Bonfield . . . is simply a recent example of this ancient line of cases holding that a biological parent?s voluntary relinquishment of her sole custodial rights is valid and enforceable,? Taylor wrote. ?This case involves a solely a petition for shared custody identical to the one approved in Bonfield.?

?All along, the parties intended for Therese to be a custodian to [the child],? Taylor argues.

?She participated in the decision to bring [the child] into the world and raised him from birth with Denise?s agreement and participation. Relying on Denise?s agreement, Therese devoted years of her life to caring for [the child], and created a significant and parental relationship with him. Denise voluntarily relinquished her exclusive custodial rights and caused that reliance; she is not free unilaterally to sever the significant parental relationship . . .? Taylor argued.

Taylor also argues that the only finding a court can make on the ?suitability? of a parent, for which guidelines exist in case law, is when the agreement is entered into, which in this case, was March, 2001, so Denise has no right to demand that a hearing be held now.

?The [parenting agreement] itself constituted the original custody award and satisfied both the requirement of a determination of parental unsuitability and a finding that Therese was a proper custodian for [the child],? Taylor argued.

?Denise cannot re-litigate a court order to which she consented four years ago,? Taylor said. ?Nor can Denise seek relief from the [parenting agreement] through a declaratory judgment action? according to court rules.

?The Ohio Supreme Court has held on numerous occasions that a party cannot seek relief from a prior judgment in order ?to circumvent the terms of [an] agreement simply because, with hindsight, he or she has thought better of the agreement which was entered into voluntarily and deliberately,?? according to Taylor, quoting a 1999 Supreme Court case.

Taylor also pointed to the agreement itself, where Denise stated she would not ?use any biological or legal connection to the minor child in order to seek or obtain any advantage in custody.?

Taylor dismissed Golden?s Title 31 claims.

?There are, of course, countless never-married couples, formerly married partners, and individuals who are prohibited from marrying (e.g., two siblings or a grandparent with a parent), jointly raising children in Ohio and it is hardly an anomaly to protect each one?s relationship to children despite marital status.?

?Moreover, the law of contractual relinquishment is available to any custodian to whom a parent cedes rights, not just spouses,? Taylor argues.

Taylor said Golden is wrong by drawing an analogy between this case and those of divorcing parents, arguing that the custody of minors is controlled under Title 21 of the Ohio Revised Code, which Bonfield was also decided under, and as such has no relevance to the constitutional marriage ban.

The judges are expected to rule within six months.

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