July 13, 2011
Parental Fourteenth Amendment Right Overrides Claims of CoParent's Child Custody
Relying on the "constitutionally protected due process right" of parents to "make decisions concerning the care, custody, and control of their children" and the principle that the "parents’ right to custody of their children is paramount to any custodial interest in the children asserted by nonparents," citing Troxel v. Granville, 530 U.S. 57, 66 (2000), as well as Ohio cases, the Ohio Supreme Court grappled witha lesbian co-parenting issue in its opinion in In re Mullen, decided July 12. (h/t How Appealing).
In a closely divided 4-3 opinion, the majority nevertheless recognized that "a parent may voluntarily share with a nonparent the care, custody, and control of his or her child through a valid shared-custody agreement." Yet proving the existence of the terms of such an agreement, even when there are written documents, seems execeedingly difficult. There was contradictory evidence, but the court affirmed the lower courts' conclusions that there was no agreement for shared custody. The court rejected the argument that “coparent," as used in documents, equaled “shared legal custody” and rejceted the claim "that because the parties’ statements and various documents used the “coparent” terminology, the parties therefore clearly agreed to “shared legal custody.”
“Coparenting” is not synonymous with an agreement by the biological parent to permanently relinquish sole custody in favor of shared legal parenting. “Coparenting” can have many different meanings and can refer to many different arrangements and degrees of permanency. The parties’ use ofthe term, together with other evidence, however, may indicate that the parties shared the same understanding of its meaning and may be considered by the trial court in weighing all the evidence.
The dissent cited In re Custody of H.S.K.-H. (Holtzman v. Knott), 533 N.W.2d 419 (WI. 1995). The court in Holtzman had articulated the influential four part functional coparenting test sufficient to overcome an absolutist version of the biological parent's Fourteenth Amendment right: 1) the legal parent fostered and consented to development of a parent-like relationship between the petitioner and the child; 2) the petitioner and child lived together in the same household; 3) the petitioner assumed the obligations of parenthood by taking responsibility for the child’s care, education, and development, including but not limited to financial contribution, and did not expect financial compensation; 4) the petitioner has been in a parent-like relationship a sufficient amount of time to have a bonded relationship.
In New York, the court in Alison D. v. Virginia M., 572 N.E.2d 27, 29 (N.Y. 1991), held that a co-parent is a non-legal “parent” and no “parent” with any claim to visitation or shared custody under state law: the biological parent's Fourteenth Amendment right is inviolate. New York's same-sex marriage statute, which goes into effect later this month, will certainly have an effect on Alison D.
[image: The Cholmondeley sisters and their swaddled babies, circa 1600, via]
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