July 7, 2006

Ban amendment doesn't affect parents' pact, court
rules

by Eric Resnick

Columbus--Ohio�s constitutional amendment banning same-sex marriage does not void a lesbian couple�s parenting agreement, according to the Franklin County Juvenile Court.

Magistrate Darrolyn Krippel�s opinion, approved June 29 by Judge Carole Squire, interprets the amendment very narrowly. It was hailed as a major victory by lesbian, gay, bisexual and transgender advocates.

The opinion is the first test of the amendment�s effect on child custody.

The case involves a separated lesbian couple and their ten-year-old son.

Denise Marie Fairchild, who is the birth mother, asked the court to void the 2001 co-custody agreement with Therese Marie Fairchild, arguing that the amendment�s second sentence makes it unconstitutional. She took this position immediately after it passed in November, 2004.

The second sentence reads: �This state shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.�

Therese also argued that a lesbian co-parenting case decided by the Ohio Supreme Court in 2002, In re Bonfield, supports her claim.

Krippel quickly dispensed with that, because Denise and her attorney Keith Golden of Columbus argued that a 2001 lower court ruling invalidated that agreement, instead of the later Supreme Court decision overturning what the lower court did.

Denise argued that should be correct because the lower court decision in Bonfield reflected the state of the law when their agreement was drawn up. Krippel quickly rejected that logic.

Therese was represented by attorney Thomas Schmidt of Gahanna and the gay and lesbian Lambda Legal Defense, whose aim in this case--and several domestic violence cases around the state--has been to get courts to read the amendment narrowly, limiting its reach outside the definition of marriage.

Krippel agreed completely with their argument that �Granting custody rights of a child to a non-parent and between two unmarried people is not prohibited by this amendment.�

�The granting of custody does not �approximate the design, qualities, significance or effect of marriage,� wrote Krippel. She also affirmed Ohio�s principle that child custody decisions shall be based on what is best for the child.

Brian Burrier, the boy�s court-appointed legal representative, supports enforcement of the agreement.

The couple split up six months after the agreement was recognized by the court, and have been at odds since.

�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 Krippel. �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 magistrate finds that the constitutional amendment does not apply to this case.�

Lambda argued further that the women entered into the agreement to protect their son against exactly this kind of situation.

Though first among custody cases relating to the amendment, the decision has not gone up on appeal, so it can inform other such cases, but is not caselaw.

Denise�s attorney, Keith Golden, told the Associated Press that she would appeal the ruling.

The marriage ban amendment and its second sentence are the subject of several other cases around the state. These question whether or not it affects domestic violence laws and university domestic partner benefits.

Both sides in the debate agree that the Ohio Supreme Court will be the ultimate arbiter, at some point in the future.

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