Background
P.S., the biological mother, and C.E., her former same-sex partner, jointly planned for the conception and upbringing of three children through nonspousal artificial insemination. They executed a written shared-custody agreement for the oldest child, L.E.S., but no such formal agreement for twins E.S. and N.S.
After the relationship ended, P.S. sought to end or modify the agreement for L.E.S. and contested C.E.’s claims to custody and companionship time for the twins. The juvenile court found that P.S. had entered a shared-custody arrangement for all three children—by written agreement for L.E.S. and through words and conduct for the twins—and ordered continuing companionship time. Following an earlier appeal, the Ohio Supreme Court held that C.E. could not be recognized as a legal parent under Ohio’s statutory scheme and remanded for resolution of P.S.’s remaining custody-related assignments of error.
The Court’s Holding
The First District affirmed. It held that the juvenile court applied the correct framework under In re Mullen: a biological parent may voluntarily share custody with a nonparent through a valid shared-custody agreement, including one established through words and conduct. The court rejected P.S.’s contention that the juvenile court had relied on Obergefell v. Hodges to create parental rights for C.E.; its final custody decision instead applied Mullen.
Reliable, credible evidence supported the finding that P.S. relinquished some exclusive custodial rights as to the twins. Documents P.S. executed around their birth described C.E. as a co-parent and co-custodian, stated that P.S. had ceded exclusive custody in favor of shared custody, and appointed C.E. as guardian. The court also upheld the best-interest findings, the companionship order under the shared-custody arrangement, and the refusal to terminate the written agreement concerning L.E.S.
Key Takeaways
- A nonparent may obtain shared custody through a biological parent’s voluntary agreement, including an agreement shown by words and conduct.
- Evidence of an intent to coparent may support a shared-custody finding when it shows a shared understanding that the parent ceded some exclusive custody rights.
- Once a parent voluntarily relinquishes sole custody through a shared-custody arrangement, the court may determine companionship time without giving special weight to that parent’s preferences as though the parent retained sole custody.
Why It Matters
The decision distinguishes legal parentage from contractual shared custody. Although Ohio law provided no route for C.E. to be recognized as a parent, the court held that the parties’ contemporaneous documents and conduct could establish enforceable shared-custody rights.