March 4, 2005

Ohio ban amendment now used in child custody case

Lesbian mom seeks to have a parenting agreement with her former partner voided

by Eric Resnick

Columbus--A separated lesbian couple�s dispute over a joint custody agreement has brought Ohio�s new marriage ban constitutional amendment into the realm of juvenile affairs.

Denise Marie Fairchild, who is the birth mother of an eight-year-old boy, asked a court on February 14 to void a 2001 co-custody agreement with Therese Marie Fairchild because, she says, the amendment makes it unconstitutional.

Hers is the first case testing the effect of the amendment, passed in November as Issue 1, on child custody laws and shared parenting agreements.

The measure bars same-sex marriage and anything that approximates �the design, qualities, significance or effect of marriage� for unmarried couples. Courts in other cases are also deciding if this wording changes the way domestic violence laws apply to unmarried couples.

The Fairchilds� case is now on hold after Franklin County domestic relations magistrate Darrolyn Krippel questioned if it should be heard in Franklin or Licking county.

According to court documents, the couple lived together for four years prior to the birth of the child in 1996. Their relationship ended in 2001, six months after the custody agreement was entered.

At the time of the agreement, the family lived in Licking County, but agreed to have the matter handled in Franklin County.

Denise Fairchild and the boy still live in Licking County, but Therese Fairchild now lives in Franklin. Both are expected to ask the court to hear it in Franklin again.

Krippel, on February 28, gave both sides ten days to file arguments on the venue issue.

With the exception of a few occasions, Therese says in court papers, Denise has denied Therese access to the child since their 2001 separation.

Last May, 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 marriage ban amendment�s effect on the case 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 have no effect.

If the court decides they fall under Title 31, which deals with children from married parents, it will.

Title 31 is the law dealing with marriage and divorce. It was altered when the legislature passed Ohio�s �defense of marriage act� last year.

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.�

That position, according to Golden, was affirmed in the 2002 In re Bonfield case, where the Ohio Supreme Court gave a Hamilton lesbian couple the ability to file a joint custody agreement.

Golden argues that �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, the only means for a same sex partner to become a parent is by adoption or through marriage,� argues Golden. �The amendment to the Ohio Constitution . . . makes it illegal for a member of the same sex to have the status of a parent, meaning that the enforcement of the [agreement] expressly conflicts with the language and terms of [Issue] 1.� So, the agreement is unconstitutional and void.

Golden also says that the agreement goes against Ohio�s �strong public policy� as described in the �defense of marriage� act.

But the 2001 parenting agreement was executed under Title 21, which the amendment doesn�t affect. It 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.�

Therese Fairchild�s attorney, Thomas Schmidt of Gahanna, declined comment on the record, and has not yet filed a brief against Golden�s motion. He has until March 12 to do so, and is expected to argue that the agreement should stay under Title 21.

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

Golden said he filed the motion to void the agreement after he learned last month of the Cuyahoga County Public Defender�s attempts to have domestic violence charges dismissed when the couple involved isn�t married.

Even though the matters are under completely different parts of Ohio law, Golden believes that �on its face, the second sentence of the amendment is clear� on unmarried couples.

If the case stays in Franklin County, Krippel set Golden�s motion to be heard on April 29.

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