In re Mullen

Decision Date12 July 2011
Docket NumberNo. 2010–0276.,2010–0276.
PartiesIn re MULLEN; Hobbs, Appellant;Mullen et al., Appellees.
CourtOhio Supreme Court

129 Ohio St.3d 417
953 N.E.2d 302
2011 -Ohio- 3361

In re MULLEN; Hobbs, Appellant;Mullen et al., Appellees.

No. 2010–0276.

Supreme Court of Ohio.

Submitted Feb. 2, 2011.Decided July 12, 2011.

[953 N.E.2d 303]

Newman & Meeks Co., L.P.A., and Lisa T. Meeks, Cincinnati; and Lambda Legal Defense and Education Fund, Inc., and Christopher R. Clark, for appellant.Dougherty, Hanneman & Snedaker, L.L.C., and Douglas B. Dougherty, Columbus, for appellee Kelly Mullen.Terry W. Tranter, Cincinnati, for appellee Scott Liming.Sallee M. Fry, Cincinnati, urging reversal for amicus curiae National Center for Lesbian Rights.Matthew J. Burkhart, Columbus, and Austin R. Nimocks, urging affirmance for amicus curiae Alliance Defense Fund.Horatio G. Mihet, Rena M. Lindevaldsen, and Mathew D. Staver, urging affirmance for amicus curiae Liberty Counsel.American Civil Liberties Union of Ohio Foundation, Inc., Carrie L. Davis, and James L. Hardiman, Cleveland; and American Civil Liberties Union Foundation Lesbian, Gay, Bisexual, Transgender and AIDS Project and John A. Knight, for amici curiae American Civil Liberties Union of Ohio and American Civil Liberties Union.Porter, Wright, Morris & Arthur, L.L.P., Kathleen M. Trafford, and Daniel B. Miller, Columbus, for amici curiae National Association of Social Workers and National Association of Social Workers, Ohio Chapter.CUPP, J.

[Ohio St.3d 418] {¶ 1} The issue raised in this case is whether a parent, by her conduct with a nonparent, entered into an agreement through which the parent permanently relinquished sole custody of the parent's

[953 N.E.2d 304]

child in favor of shared custody with the nonparent. For the reasons that follow, we hold that competent, credible evidence supports the juvenile court's conclusion that the parent did not enter into such an agreement. Accordingly, we affirm the judgment of the court of appeals.
Factual Background

{¶ 2} This matter is a dispute between a biological parent and a nonparent over the biological parent's minor child. Michele Hobbs, appellant, met Kelly Mullen, appellee, in May 2000. The two began a relationship and eventually commenced living together. In 2003, Mullen expressed a desire to have a child. Hobbs asked a friend, appellee Scott Liming, who lived in Atlanta, Georgia, to donate his sperm to Mullen for an in vitro fertilization procedure. Liming agreed. Mullen and Liming signed a purported “Donor–Recipient Agreement on Insemination,” prepared by an attorney, in which Liming agreed to provide his semen to Mullen to use for purposes of her insemination. The agreement provided that Liming would be named as the father on the birth certificate of any child conceived but that he otherwise relinquished all parental rights and waived any action for future custody of, or visitation with, any children born to Mullen from the insemination procedure. Mullen agreed not to hold Liming legally or financially responsible for any child conceived. Hobbs was not a party to the agreement.

{¶ 3} In 2004, the women began the in vitro fertilization process, in which Mullen was the recipient of the implantation. The women shared the financial responsibility of the process. Mullen became pregnant and delivered a baby on July 27, 2005. Hobbs was present at the birth. The birth certificate identified Mullen as the child's mother and Liming as the father. The birth certificate is on file in the Office of Vital Statistics at the Ohio Department of Health. The women created a ceremonial birth certificate that listed the two of them as the baby's parents. Liming also formally acknowledged paternity.

{¶ 4} Before the baby's birth, Mullen, through counsel, executed a will, in which she nominated Hobbs as the guardian of her minor child. Mullen also executed a health-care power of attorney for her child and a general durable power of attorney for her child. In each of the latter two documents, Mullen [Ohio St.3d 419] gave Hobbs the authority to act as Mullen's agent and to make decisions regarding the child. In each document, Mullen acknowledged that she was the legal parent of the child but that she considered Hobbs “to be [her] child's co-parent in every way.”

{¶ 5} Shortly after the child's birth, Liming moved back to Ohio and began visiting the child. For the two years after the child's birth, the women coparented. In 2007, the women's relationship deteriorated. In October 2007, Mullen and the child moved out of the house that they had shared with Hobbs.

Procedural Background

{¶ 6} In December 2007, Hobbs filed a verified complaint for shared custody in the Hamilton County Juvenile Court pursuant to R.C. 2151.23(A)(2) and a motion for visitation during the proceedings. Hobbs alleged that Mullen had created a contract through her conduct with Hobbs to permanently share legal custody of the child. Hobbs asked the court to grant her immediate visitation rights with the child and to enter an order pursuant to R.C. 2151.23(A)(2) granting her equal and shared custody of the child. In January 2008, Liming also petitioned for shared custody of the child.

{¶ 7} A magistrate determined that Hobbs had actively participated in the decision and process to have a child, that

[953 N.E.2d 305]

Mullen and Hobbs had had an understanding that they would act as equal coparents, and that Mullen had made an agreement taking away Liming's parental rights and responsibilities while, in three other documents, naming Hobbs as an equal coparent. Thus, the magistrate concluded that Mullen's conduct had created an agreement with Hobbs in which Mullen relinquished partial custody of her child to Hobbs and that it was in the child's best interests to maintain ties with Hobbs.1

{¶ 8} Both Mullen and Liming filed objections to the magistrate's report. The juvenile court rejected the magistrate's decision. In its entry, the juvenile court focused on the legal relationship of each party to the child: Mullen was the biological and natural mother of the child and had acquired legal custody by operation of law; Liming was the legal, natural, biological father with the potential to obtain full custodial rights; Hobbs was a nonparent under Ohio law despite her active role in raising and caring for the child.

{¶ 9} Based on the testimony provided by Mullen, Liming, Hobbs, and others, as well as documentary evidence, the juvenile court concluded that a preponderance of the evidence did not conclusively demonstrate that Mullen's conduct [Ohio St.3d 420] created a contract that permanently gave partial custodial rights of the child to Hobbs. The juvenile court concluded that the magistrate had incorrectly required Mullen to share custody of her child, and the court dismissed Hobbs's complaint for shared legal custody.2

{¶ 10} On Hobbs's appeal, the court of appeals concluded that the decision by the juvenile court judge was supported by competent, credible evidence, and it affirmed the juvenile court's decision. In re Mullen, 185 Ohio App.3d 457, 2009-Ohio-6934, 924 N.E.2d 448, ¶ 17. The cause is before this court upon the acceptance of a discretionary appeal. In re Mullen, 125 Ohio St.3d 1413, 2010-Ohio-1893, 925 N.E.2d 1001.

Parental rights

{¶ 11} Parents have a constitutionally protected due process right to make decisions concerning the care, custody, and control of their children, and the parents' right to custody of their children is paramount to any custodial interest in the children asserted by nonparents. Troxel v. Granville (2000), 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49; In re Murray (1990), 52 Ohio St.3d 155, 157, 556 N.E.2d 1169; Clark v. Bayer (1877), 32 Ohio St. 299, 310. A parent's right to make decisions concerning the care, custody, and control of his or her children, however, is not without limits. For example, Ohio does not recognize a parent's attempt to enter into a statutory “shared parenting” arrangement with a nonparent, same-sex partner because the nonparent does not fall within the definition of “parent” under the current statutes. In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241, ¶ 35; R.C. 3109.04. Rather, a parent may voluntarily share with a nonparent the care, custody, and control of his or her child through a valid shared-custody agreement. Bonfield, ¶ 50; R.C. 2151.23(A)(2). The essence of such an agreement is the purposeful relinquishment

[953 N.E.2d 306]

of some portion of the parent's right to exclusive custody of the child. A shared-custody agreement recognizes the general principle that a parent can grant custody rights to a nonparent and will be bound by the agreement. Bonfield, ¶ 48, citing Masitto v. Masitto (1986), 22 Ohio St.3d 63, 65, 22 OBR 81, 488 N.E.2d 857; see Clark, paragraphs two and three of the syllabus (parents' grant of custody to a nonparent through an agreement recognized as lawful and enforceable). A valid shared-custody agreement is reviewed by the juvenile court and is an enforceable contract subject only to the court's determinations that the custodian is “a proper person to assume the care, training, and education of the child” and that the [Ohio St.3d 421] shared-legal-custody arrangement is in the best interests of the child. Bonfield at ¶ 48, 50.3

{¶ 12} This appeal concerns whether a parent's conduct with a nonparent created an agreement for permanent shared legal custody of the parent's child. The determination of whether such a contract is present is essential. If there is no such contract, then the parent retains all parental rights. If there is such a contract, then the juvenile court must engage in a “suitability” and “best interests” analysis. Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241, at ¶ 48, 50.

Evidentiary standards and standards of review

{¶ 13} Central to answering the question of whether the parent agreed to relinquish permanent, partial legal custody of her child to a nonparent is the evidentiary standard by which the juvenile court must weigh the evidence and reach...

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