December 2, 2005

Ban amendment doesn't affect custody, court is told

Lawyers say woman's former partner is wrong
to claim that it voids their parenting agreement

by Eric Resnick

Columbus--In another attempt to limit the effect of Ohio�s year-old constitutional ban on same-sex marriage, lawyers for a Central Ohio woman have told a court that her former partner is wrong to argue that it voids their child custody agreement.

Lambda Legal, a national LGBT public interest law firm, filed a friend-of-the-court brief November 16 in an ongoing child custody case between the two women.

They are asking the Franklin County domestic relations court to enforce a 2001 court-approved joint custody agreement between Therese Fairchild and her former partner Denise Fairchild.

Denise, who is the birth mother of a nine-year-old boy, asked the court on February 14 to void the agreement with Therese because, she says, the amendment makes it unconstitutional.

The case is the first one to test the amendment as it relates to child custody and shared parenting agreements.

Lambda joined the case on behalf of Therese. According to court documents, she has been denied access to the child except for a few occasions since their breakup in 2001, six months after the agreement was executed.

�Both women agreed to share custody to protect their son against just this kind of separation,� said Lambda staff attorney Camilla Taylor. �The constitutional amendment in question pertains to relationships between two adults, not the relationship between a parent and her child.�

Lambda argues that the custody agreement was valid when the Fairchilds signed it, and that the ability to file such agreements was validated a year later by the Ohio Supreme Court in the case In re: Bonfield.

By arguing that the amendment shouldn�t apply to relationships between parents and children, Lambda is trying to limit what the amendment does.

Lambda has already filed briefs in four other cases involving the amendment. These are among roughly a dozen cases around the state asking courts to decide if Ohio�s domestic violence law no longer applies to unmarried couples because of the amendment. None have had a final ruling yet. Lambda argues that the amendment doesn�t affect that law.

The amendment bars same-sex marriage and anything that approximates �the design, qualities, significance or effect of marriage� for unmarried couples. However, courts have not yet determined what that means.

In May 2004, Therese, without an attorney, filed a motion to hold Denise in contempt of the custody order. That motion was rejected, but the court appointed Therese a lawyer and appointed a guardian for the child.

The guardian, Brian Burrier, has recommended that Therese have parenting time.

The couple lived together for four years prior to the birth of the child in 1996.

The marriage ban amendment�s effect on the case also hinges on which section of Ohio law co-custody agreements fall under.

If the court decides they fall under Title 21, which deals with children from unmarried parents, the amendment will probably have no effect.

If the court decides they fall under Title 31, which applies to children from married parents, it likely will.

Title 31 is the law on marriage and divorce. It was altered when the legislature passed Ohio�s �defense of marriage act� in 2004.

Denise Fairchild, represented by Columbus attorney Keith Golden, argues that the definition of �parent and child relationship� under Title 31 should control this case.

That section says there are three ways in which an individual can gain status as a parent: by natural parenthood, adoption, or �other legal means which confer or impose rights, privileges and duties upon certain individuals.�

Golden argues that the Bonfield ruling makes the Fairchild agreement one of those �other� legal means.

Therese�s other attorney, Thomas Schmidt of Gahanna, argues the 2001 parenting agreement was executed under Title 21, which the amendment doesn�t affect.

The agreement orders that the women be �considered legal custodians of the minor child� and �be treated as two equal parents . . . the same as they would be treated under the law if they were any other two unmarried parents of a child.�

The case is in the court of Judge Carole Squire, who also ordered the 2001 agreement.

The child currently resides with Denise in Licking County.

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