by Eric Resnick

Columbus--The first test of whether or not Ohio�s marriage ban amendment affects child custody will probably head to the Ohio Supreme Court after an appeals court ruled that essentially, it doesn�t.

The Tenth Ohio District Court of Appeals in Columbus on June 10 upheld a Franklin County ruling that the amendment has no effect on custody agreements.

If the case goes to the high court, it will be the second time it has looked at the amendment. Last summer, the justices ruled that the measure bars only same-sex marriage and civil union, and doesn�t affect domestic violence laws.

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.

Fairchild 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.

In addition to keeping Leach out of the child�s life, Fairchild�s position would broaden the amendment�s interpretation so that it restricts the rights of non-biological parents. If she succeeds, agreements to grant them rights and responsibilities may not be enforceable.

But courts have ruled against Fairchild at every level, on nearly every point of law.

In its brief opinion, the three judge Tenth District panel ruled unanimously for Fairchild on three minor procedural objections, then upheld the earlier decisions that the 2001 agreement is enforceable, calling Fairchild�s arguments �moot.�

In doing so, Judges Charles R. Petree, Susan Brown, and Peggy Bryant ruled that the trial court should have dismissed Fairchild�s motion for summary judgment.

That motion, if granted, would have put the parenting agreement under Title 31 of Ohio law, which relates to divorces and marriage annulments.

The Franklin County court, however, found that parenting agreements like Fairchild and Leach�s fall under Title 21.

Title 21 allows the court to decide custody matters between a biological parent and non-biological parent.

So far, the courts have found that Title 21 is outside the scope of the marriage ban amendment. The relationship in question is not the one between two adults, they have ruled, it is the one with the child, and courts must decide in the best interest of the child.

Writing for the panel, Judge Bryant said, �In an attempt to circumvent her inability to attack the agreed [2001 parenting plan], [Fairchild] contends the trial court lacked jurisdiction . . . as no statute provides for an adjudication of custodial rights in lesbian relationships.�

�Nonetheless,� continued Bryant, �as the Supreme Court�s decisions . . . make clear, a juvenile court has jurisdiction pursuant to [Title 21] over a child who is not otherwise the ward of the state, even when one of the parties vying for custody is a nonparent.�

Fairchild�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.]� Leach 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.

�[Fairchild] 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.�

The panel also agreed that Fairchild cannot now challenge the agreement that was designed to protect the child in the event that the couple split up.

The case is expected to be appealed to the Ohio Supreme Court.