The Ohio Supreme Court will decide if LGBTQ+ people in relationships before the U.S. Supreme Court legalized same-sex marriage in 2015 have the same parental rights as married opposite sex parents. The case from Cincinnati the court heard Tuesday could impact same-sex couples with kids who didn’t marry after that landmark ruling, but are no longer together.
Priya Shahani and Carmen Edmonds were partners for 12 years, and Shahani gave birth to three children. They broke up in 2015 without ever marrying, before the U.S. Supreme Court handed down the ruling in Obergefell v. Hodges, the case from Ohio that established the right for same-sex couples to legally marry.
In 2018 Shahani filed suit to end their parenting arrangement, saying Edmonds' continued involvement wasn't in the children's best interests. Edmonds countered that she is a legal parent to the children because she and Shahani were engaged to be married in 2014, though Ohio would not have recognized their union at the time.
The Hamilton County Juvenile Court ruled because neither common law marriages nor same sex marriages were recognized in Ohio when they were together, the kids don’t have two moms, but allowed for Edmonds' visitation to continue. Both appealed the case to the First District Court of Appeals, which ruled against the lower court and affirmed Edmonds as a legal parent if she could prove that the couple would have been married except for the ban on same-sex marriage.
Attorneys argue intent to marry, rights of parents
Shahani's lawyer Paul Kerridge said his client "doesn't believe in institution of marriage", and that she never wanted to marry and has no plans to get married, including to her current long-term partner. So he said, there was no marital relationship, and therefore no parental rights for Edmonds.
"What we're kind of getting is one person saying, 'well, I want a marriage to be retroactively created' and another person saying, 'well, I don't want a marriage to be retroactively created because I never wanted to enter into one in the first place,'" Kerridge told the justices. "And because there was no marriage and there was no challenge to the ban on same sex marriage at the time, no contemporaneous challenge to that. There was no attempt to get a marriage license. We actually don't have a redressal injury here."
But Edmonds’ attorney Jonathan Hilton disputes that, saying there's evidence that there was a plan to marry, which he said would be presented if the case were returned to the lower court. But with no legal recognition of her as a parent, Hilton said Edmonds "has no more rights in that situation than a baby sitter."
"The crux of it is that just because a child was born in Ohio during a time over ten years ago, and we didn't recognize same sex marriage, that shouldn't stop them from having two moms legally recognized today," Hilton said after arguments. “The Obergefell case is about marriage, but it's about so much more. It's about the right to raise your children, to bring them into the world, and really to have that legal recognition, to be able to nurture them as they grow."
"Does the best interest of the children matter in this case?" asked Justice Pat Fischer.
"In this case, it's in the best interest of the of the children to have the legal recognition and stability that Obergefell promises," Hilton said.
When asked the same question by Justice Jennifer Brunner, Kerridge replied that a previous U.S. Supreme Court case said "barring neglect, parental autonomy is not something that a state should interfere in or the courts should get involved in. So the best interests of the children are not part of the parent analysis, like best interests of the children is definitely part of the analysis of a custody agreement. And that is currently not before this court."
After arguments, Edmonds spoke about the case, saying it's been a painful struggle.
“I have been with my kids since they were born. I've been nurturing. I've been a mother in every sense. And the idea that someone does not recognize that is scary," Edmonds said. "That is extremely painful for me is to think of my children not seeing me. I know that will carry a lot of a lot of pain and suffering, for me. But to think that they would go through this is heartbreaking for me."
Shahani’s lawyer would only say: "Ms. Shahani believes that this is a private matter involving children and asks that the media respect the children's privacy."
