Virginia Cornwell is an Ohio State Bar Association Certified Family Relations Specialist Attorney who works with the LGBT community.
Many Ohio LGBT partners co-parent but do not take the extra step of putting their shared custody (similar to joint custody or shared parenting) arrangement in writing. Others put their shared custody arrangement in writing, (known as Bonfield agreements) but do not put it in writing in a way that indicates a clear relinquishment of sole custody in favor of shared custody (for example a power of attorney or a will rather than a shared custody agreement).
Mistakes like this can be tragic for the non-biological parent (or non-legal parent) if the couple breaks up. Wills and powers of attorneys are revocable. Shared custody agreements (the ones that have any legal authority) must be approved by the juvenile court. An example of how things can go devastatingly wrong without a shared custody agreement is the Mullen case.
In the Ohio Supreme Court Case In Re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361, while together, the parties had taken numerous steps to show their commitment to co-parenting. They had planned the pregnancy together, were together at the birth, made a ceremonial birth certificate with both parties’ names, and shared parenting responsibilities. The biological mother also prepared a will naming the other mother as custodian if she should pass away, and the biological mother gave her partner a power of attorney. However, when the parties separated, according to Mullen, the will and the power of attorney were revoked and the parties found themselves in litigation over whether they would continue to co-parent the child.
In this case, the Ohio Supreme Court upheld the findings of the lower courts which did not require the biological mother to continue to co-parent with her former partner. The Court noted that while the biological mother had the opportunity to permanently surrender her sole custody in favor of shared custody, she did not do it. The court did not go so far as to say that they would always require a “Bonfield” agreement, but if the court did not grant any custodial rights under these circumstances, it is wise to interpret this case as a cautionary tale and put these important issues in writing, and have them approved by the juvenile court.
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