Ohio Appeals Court Issues Ruling in Lambda Legal Case Representing Lesbian Mother: Validity of Shared Custody Agreements May Not Be Attacked Years Later

(Franklin County, OH, June 16, 2008) — The Tenth District Ohio Appeals Court ruled, on June 10, 2008, that lesbian mother Denise Fairchild should never have been permitted to attack the enforceability of a shared custody agreement with her former partner Therese Leach.

Fairchild argued that Article XV, Section 11 of the Ohio Constitution, an anti-gay amendment concerning marriage that passed as a ballot initiative in November 2004, invalidated the court-approved agreement she originally sought with Leach and entered into in 2001.

The ruling from the Tenth District Court of Appeals in Ohio says that, "Although [Denise's] motion on its face seeks a declaration of rights or status, in reality it attempts to facially attack the Agreed Entry to which she is a party." The Agreed Entry is a consent decree, which is neither "subject to attack through appeal" nor through "a declaratory judgment action," The Court therefore remanded the case for an order dismissing her motion as a "procedural nullity."

"We are pleased that the court's decision brushes aside Denise's arguments concerning the constitutional amendment to reaffirm long held Ohio Law," said Camilla Taylor Senior Staff Attorney in Lambda Legal's Midwest Regional Office in Chicago. "The court has reaffirmed that parents may make enforceable agreements to share child custody in order to protect their children's best interests, just as parents have done for almost 150 years, regardless of their gender or sexual orientation."

Lambda Legal represents Therese Leach in her fight to uphold a court-approved joint custody agreement signed by both her and her former partner, Denise Fairchild, in 2001. After their son was born in 1996, both women parented him. In order to ensure that Therese had a protected legal relationship with the child, the two women signed a joint custody agreement. Such agreements were approved by the Ohio Supreme Court in the 2001 In re Bonfield case in which Lambda Legal participated.

Twice Leach's arguments prevailed at the trial court, which ruled that the amendment has no bearing on the custodial rights on non-biological parents. Fairchild appealed those rulings.

Camilla Taylor, Senior Staff Attorney in Lambda Legal's Midwest Regional office in Chicago is lead counsel. She is joined by co-counsel LeeAnn Massucci of Massucci & Kline LLC and Thomas Schmidt of Gahanna, Ohio of Columbus, Ohio.

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The case is Fairchild v. Fairchild

Erin Baer 212-809-8585 ext.267;Email: ebaer@lambdalegal.org