The Ohio Supreme Court ruled this week that a woman does not have parenting rights to children born to her same-sex partner under Ohio law. The court also found that an appellate court used flawed reasoning when it considered what the couple’s rights might have been if they had been married.
The state’s highest court heard oral arguments in the case a year ago. Attorneys for both women, who are no longer together, argued over whether a “would-have-been-married” test could determine parental rights.
Priya Shahani and Carmen Edmonds discussed marriage during their 12-year relationship. Edmonds proposed, and her attorneys pointed to a trip to Boston that they said could have resulted in a wedding.
However, the trip took place before the 2015 U.S. Supreme Court ruling in Obergefell v. Hodges, which legalized same-sex marriage nationwide. At that time, Ohio would not have recognized such a marriage.
Common-law marriage was also not an option, as Ohio does not recognize common-law marriages formed after 1991.
Although Shahani and Edmonds never legally married, they entered into a shared custody agreement after their separation.
During their relationship, the three children born had hyphenated last names reflecting both women, but Shahani later chose to remove the hyphenation.
In juvenile court, Edmonds argued that Ohio’s parentage laws were “deficient and lagging,” particularly after the U.S. Supreme Court recognized same-sex marriage.
A magistrate in juvenile court rejected Edmonds’ request to be named a legal parent of the three children and to receive shared custody of two of them. However, the magistrate also denied Shahani’s request to terminate the shared custody agreement for the third child. The court did grant Edmonds “companionship time.”
When both women appealed to the First District Court of Appeals, Edmonds introduced a new argument. She cited a “non-spousal artificial insemination statute,” which allows a husband to be recognized as the biological father of children born to his wife through artificial insemination and donor sperm.
Edmonds’ attorneys argued that U.S. Supreme Court precedents require the statute to be applied in a gender-neutral way so that it includes same-sex couples.
The appellate court created a legal “test” and instructed the lower court to use it to determine the couple’s parental rights if same-sex marriage had been recognized nationwide at the time they discussed marriage and if Ohio had acknowledged such a union.
The First District Court of Appeals concluded that, based on prior cases, “the statute should be judicially modified to apply retroactively to an unmarried same-sex partner if the couple would have been married, but for Ohio’s ban on same-sex marriage,” according to the Ohio Supreme Court analysis.
However, the justices of the Ohio Supreme Court disagreed. They stated that the artificial insemination statute applies only to married couples and that the appellate court “erred in empowering the trial court to retroactively create a marriage under this ‘would have been’ standard.”
“How is a court to determine what parties would have done had same-sex marriage been legal in Ohio? Some couples may have chosen to remain unmarried for financial or personal reasons,” Justice Patrick DeWine wrote in the majority opinion.
“Or, as sometimes happens, the relationship could have ended when the topic of marriage arose.”
The majority added that the “would-have-been-married” test would send trial courts “out on an impossible mission to retroactively determine whether a different reality would have produced different events.”
All justices joined the majority opinion except Justice Jennifer Brunner, who agreed with the judgment but wrote a separate opinion.
The state supreme court also noted that same-sex marriage was legal in more than a dozen states before the couple ended their relationship, yet they still chose not to marry.
“If they had, Obergefell would require Ohio to recognize that marriage and (Edmonds) would have a strong argument that the non-spousal artificial insemination statute should be applied in a gender-neutral manner to her,” DeWine wrote.
He added that the Obergefell v. Hodges decision “did not consider any retrospective implications of its holding on states that had not previously recognized same-sex marriage.”
In her separate opinion, Brunner agreed that the appellate court “erroneously decided this case solely on an unpreserved issue.” However, she also said she would have declined to consider the appeal altogether because Edmonds raised a different argument on appeal than she had in juvenile court.
During the juvenile court proceedings, Edmonds said she had acted as a parent to the children “as much as she possibly could,” and argued that denying her and the children the legal rights and responsibilities of a parent-child relationship—simply because the legislature had not updated Ohio law after Obergefell v. Hodges to recognize families like hers—was unconstitutional and harmful, according to Justice Jennifer Brunner.
“The juvenile court was careful to recognize the importance of the rights at stake here,” Brunner wrote.
“It aptly acknowledged the ‘disconnect between the laws of this state and the precedent set by the highest courts,’ including the failure to ‘make appropriate accommodations for same-sex couples in line with case law regarding family formation.”
However, on appeal, the argument shifted to rely on the artificial insemination statute—an issue the First District Court of Appeals did not have the authority to address “when that remedy was never presented to the juvenile court by any party,” Brunner wrote.
The case will now return to the First District Court of Appeals for further consideration.
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