[Cite as In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361.]




       IN RE MULLEN; HOBBS, APPELLANT; MULLEN ET AL., APPELLEES.
          [Cite as In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-3361.]
Shared custody — Standard of review — Competent, credible evidence supports
        juvenile court’s holding — Judgment affirmed.
    (No. 2010-0276 — Submitted February 2, 2011 — Decided July 12, 2011.)
   APPEAL from the Court of Appeals for Hamilton County, Nos. C-090285 and
                 C-090407, 185 Ohio App.3d 457, 2009-Ohio-6934.
                                 __________________
        CUPP, J.
        {¶ 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 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
                            SUPREME COURT OF OHIO




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 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




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                                     January Term, 2011




        {¶ 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 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

1. The magistrate did not make a recommendation on the custody petition filed by Liming, but
noted that the biological parents “apparently intend to enter into an agreement with one another on
visitation or shared parenting.”




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preponderance of the evidence did not conclusively demonstrate that Mullen’s
conduct 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.
                                          Analysis
                                       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

2. The court also dismissed Liming’s complaint for custody so that appellees might pursue shared
parenting under R.C. 3109.04. That issue is not before this court.




                                               4
                                     January Term, 2011




valid shared-custody agreement.            Bonfield, ¶ 50; R.C. 2151.23(A)(2).               The
essence of such an agreement is the purposeful relinquishment 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
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

3. This court has also examined agreements in which a parent is claimed to have contractually
relinquished sole custody of his or her child to a nonparent. See Masitto v. Masitto (1986), 22
Ohio St.3d 63, 66, 22 OBR 81, 488 N.E.2d 857 (a father who allowed his in-laws to become
guardians of his daughter, later consenting in writing, was deemed to have forfeited his rights to
custody); In re Perales (1977), 52 Ohio St.2d 89, 96, 6 O.O.3d 293, 369 N.E.2d 1047 (a mother
who agreed to give custody to a nonparent was alleged to have forfeited her custody right to
nonparent). Although the circumstances presented in this appeal are different because the question
involves shared legal custody, the underlying principles pertaining to contractual relinquishment
of custody rights are applicable.




                                                5
                            SUPREME COURT OF OHIO




evidentiary standard by which the juvenile court must weigh the evidence and
reach its decision. If that decision is appealed, then the standard of review that
the appellate court must apply to the juvenile court’s decision becomes relevant.
       {¶ 14} Whether a parent has voluntarily relinquished the right to custody
is a factual question to be proven by a preponderance of the evidence. See In re
Perales (1977), 52 Ohio St.2d 89, 6 O.O.3d 293, 369 N.E.2d 1047, syllabus;
Reynolds v. Goll (1996), 75 Ohio St.3d 121,123, 661 N.E.2d 1008. Likewise,
whether a parent, through words and conduct, has agreed to share legal custody
with a nonparent is also a question of fact. A trial court has broad discretion in
proceedings involving the care and custody of children. Reynolds at 124.
       {¶ 15} We have consistently held that the determination of whether a
“parent relinquishes rights to custody is a question of fact which, once
determined, will be upheld on appeal if there is some reliable, credible evidence
to support the finding.” Masitto, 22 Ohio St.3d at 66, 22 OBR 81, 488 N.E.2d
857. See also Bechtol v. Bechtol (1990), 49 Ohio St.3d 21, 550 N.E.2d 178,
syllabus (“Where an award of custody is supported by a substantial amount of
credible and competent evidence, such an award will not be reversed as being
against the weight of the evidence by a reviewing court”). If similar findings are
made by the trial and appellate courts, this court must accept those findings unless
there is no evidence of probative value to support them.               Gillen-Crow
Pharmacies, Inc. v. Mandzak (1966), 5 Ohio St.2d 201, 205, 34 O.O.2d 417, 215
N.E.2d 377, citing MacNab v. Bd. of Park Commrs. of Metro. Park Dist. in
Cleveland (1923), 108 Ohio St. 497, 500, 141 N.E. 332; Peer v. Indus. Comm.
(1938), 134 Ohio St. 61, 67, 11 O.O. 454, 15 N.E.2d 772. Thus, this court will
not disturb the trial court’s findings unless those findings are unsupported by the
evidence. In re Estate of Duiguid (1970), 24 Ohio St.2d 137, 141, 53 O.O.2d 328,
265 N.E.2d 287, quoting Gates v. River Local School Dist. Bd. of Edn. (1967), 11
Ohio St.2d 83, 40 O.O.2d 91, 228 N.E.2d 298, paragraph two of the syllabus.



                                         6
                               January Term, 2011




                           Review of trial court findings
        {¶ 16} In this case, the juvenile court engaged in an extensive analysis to
determine whether Mullen’s conduct created any agreement by which she had
permanently ceded partial legal custody rights to Hobbs.        The evidence the
juvenile court cited to support Hobbs’s allegations that Mullen agreed to
permanently share custody with Hobbs included that (1) Hobbs and Mullen had
planned for the pregnancy together, (2) Hobbs was present at the child’s birth, (3)
Hobbs’s name appeared on the ceremonial birth certificate, (4) Hobbs and Mullen
jointly cared for the child, (5) Hobbs and Mullen held themselves out as and acted
like a family, (6) Mullen’s will named Hobbs as the child’s guardian, and (7)
Mullen executed a general durable power of attorney and a health-care power of
attorney giving Hobbs the ability to make school, health, and other decisions for
the child.
        {¶ 17} Thereafter, the court detailed the counterevidence. The court noted
that all the documents created by Mullen that gave Hobbs some custodial
responsibilities not only were revocable but were, in fact, revoked by Mullen.
Testimony supported Mullen’s statement that she did not intend to relinquish sole
custody of the child in favor of shared custody with Hobbs. The juvenile court
also stated that although the evidence was unclear whether a shared-custody
agreement was actually drafted by the parties or presented to Mullen, the evidence
did show that Mullen had consistently refused to enter into or sign any formal
shared-custody agreement when presented with the opportunity to do so. In an
apparent acknowledgment that the parties had presented conflicting evidence, the
juvenile court commented that “under circumstances such as are present in this
case a writing of the agreement between the petitioner and the mother would be
instructive and preferred to determine whether a contractual relinquishment was
made and how much custody was relinquished.”




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       {¶ 18} The juvenile court also analyzed the role of the child’s father when
considering whether Mullen permanently gave over partial legal custody rights.
Mullen and Liming each testified that they consider the donor agreement,
executed prior the child’s birth, no longer in effect, and they are not abiding by it.
Like Hobbs, Liming has also had regular contact with the child, and he is a
consistent presence in the child’s life. He is listed on the child’s official birth
certificate and has formally acknowledged paternity. The juvenile court indicated
that before Hobbs could be determined to have any shared-custody right, the
father’s pending parental rights must also be considered.
       {¶ 19} On this conflicting and disputed evidence, the juvenile court
concluded that there was reliable, credible evidence that Mullen’s conduct did not
create an agreement to permanently relinquish sole custody of her child in favor
of shared custody with Hobbs. In accordance with its standard of review, the
appellate court reviewed the evidence presented to the juvenile court and noted
that there was strong evidence supporting both Mullen’s and Hobbs’s positions.
However, of particular interest to the appellate court was the evidence that the
juvenile court relied on to conclude that although Mullen and Hobbs had shared
responsibilities for the child, Mullen had not agreed to permanently cede partial
custody rights. The appellate court determined that “taken as a whole,” reliable,
credible evidence supported the juvenile court’s findings that Mullen had not
permanently given over partial legal custody of the child. Mullen, 185 Ohio
App.3d 457, 2009-Ohio-6934, 924 N.E.2d 448, ¶ 16; Masitto, 22 Ohio St.3d at
66, 22 OBR 81, 488 N.E.2d 857. The appellate court declined to disturb that
decision. Mullen at ¶ 17.
       {¶ 20} We conclude that the appellate court applied the proper standard of
review in this matter. We also conclude that the appellate court did not err when
it affirmed the juvenile court’s decision to dismiss Hobbs’s complaint for shared
custody of the child. Like that of the juvenile and appellate courts, our review of



                                          8
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the record shows that not only was there evidence indicating that Mullen had
intended to share custody of the child, there was contrary evidence indicating that
Mullen did not agree to permanently cede partial legal custody rights to Hobbs.
       {¶ 21} In this regard, as the juvenile and appellate courts noted, we also
observe that the best way to safeguard both a parent’s and a nonparent’s rights
with respect to children is to agree in writing as to how custody is to be shared,
the manner in which it is shared, and the degree to which it may be revocable or
permanent, or to apply to a juvenile court for an order under R.C. 2151.23(A)(2)
establishing the scope of the legal custody that the parent desires to share, or both.
Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241, ¶ 9. Our prior
decisions have not required a parent to create a written contract to relinquish
custody rights, although in some cases, writings may have been involved.
Masitto, 22 Ohio St.3d at 64, 22 OBR 81, 488 N.E.2d 857; Perales, 52 Ohio St.2d
at 90, 6 O.O.3d 293, 369 N.E.2d 1047.
       {¶ 22} Finally, we do not agree with appellant’s argument that “coparent”
equals “shared legal custody” and that because the parties’ statements and various
documents used the term “coparent,” the parties therefore clearly agreed to
“shared legal custody.” “Coparenting” is not synonymous with an agreement by
the biological parent to permanently relinquish sole custody in favor of shared
legal parenting. “Coparenting” can have many different meanings and can refer
to many different arrangements and degrees of permanency. The parties’ use of
the term, together with other evidence, however, may indicate that the parties
shared the same understanding of its meaning and may be considered by the trial
court in weighing all the evidence.
                                      Conclusion
       {¶ 23} Because the holdings of the juvenile and appellate courts are
supported by the evidence and are not clearly against the manifest weight of the
evidence, we must affirm them. Gillen-Crow Pharmacies, 5 Ohio St.2d at 205,



                                          9
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34 O.O.2d 417, 215 N.E.2d 377; Peer, 134 Ohio St. at 67, 11 O.O. 454, 15
N.E.2d 772. Accordingly, like the appellate court, we decline to disturb the
juvenile court’s decision. Duiguid, 24 Ohio St.2d at 141, 53 O.O.2d 328, 265
N.E.2d 287. We hold that competent, credible, and reliable evidence supports the
juvenile court’s conclusion that Mullen did not create an agreement to
permanently relinquish sole legal custody of her child in favor of shared legal
custody with Hobbs.       Consequently, the juvenile court may not reach the
questions of whether Hobbs is a suitable person to be a custodian of the child or
whether shared legal custody is in the child’s best interests. See Bonfield, 97
Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241, ¶ 48, 50.
       {¶ 24} For the foregoing reasons, the appellate court did not err when it
affirmed the juvenile court’s decision to dismiss the complaint for shared custody.
The judgment of the court of appeals is affirmed.
                                                                 Judgment affirmed.
       LUNDBERG STRATTON, O’DONNELL, and LANZINGER, JJ., concur.
       O’CONNOR, C.J., and PFEIFER and MCGEE BROWN, JJ., dissent.
                               __________________
       O’CONNOR, C.J., dissenting.
       {¶ 25} Because the law governing this case is well settled and the
majority establishes no new law or governing principle, I would dismiss this
appeal as having been improvidently accepted.
       {¶ 26} It is irrefutable that parents have fundamental constitutional rights
free from government intervention in their decisions on the custody and
caretaking of their children. In re Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208,
781 N.E.2d 971, ¶ 16. It is also irrefutable that those rights are not absolute.
       {¶ 27} A parent may contractually relinquish custody rights and fully or
partially confer those rights on another person who is not a parent to the child.
Masitto v. Masitto (1986), 22 Ohio St.3d 63, 66, 22 OBR 81, 488 N.E.2d 857; In



                                          10
                                January Term, 2011




re Perales (1977), 52 Ohio St.2d 89, 98, 6 O.O.3d 293, 369 N.E.2d 1047. Thus,
although Ohio law will not recognize a biological parent’s intent to confer the
status of “parent” on a same-sex partner, it will recognize a biological parent’s
decision to voluntarily relinquish the right to sole custody of the children in favor
of sharing custodial rights with that partner. In re Bonfield, 97 Ohio St.3d 387,
2002-Ohio-6660, 780 N.E.2d 241, ¶ 47.
       {¶ 28} For courts to enforce a parent’s decision to confer custody rights of
a minor child on a same-sex partner or other person who is not within the
legislative definition of a “parent” to the child, there must be a showing that the
parent contractually agreed to share custody. Bonfield, 97 Ohio St.3d 387, 2002-
Ohio-6660, 780 N.E.2d 241, ¶ 48; Perales, 52 Ohio St.2d at 98, 6 O.O.3d 293,
369 N.E.2d 1047. The juvenile court’s decision will be upheld if there is some
reliable, credible evidence to support that finding of an intention to share with
another person the custody of a child. Masitto, 22 Ohio St.3d at 65, 22 OBR 81,
488 N.E.2d 857. Arguably, that evidence can take many forms, including the
conduct of the parties before and after the child’s birth.
       {¶ 29} Nothing in Bonfield or our prior decisions mandated that an
agreement to relinquish sole custody be in writing. But as the facts of this case
show, prudence now dictates that the agreement be documented.
       {¶ 30} The American family takes many forms, including those in which
children are raised lovingly in homes headed by two fathers or two mothers, or by
grandparents and siblings, or by a single parent. Our evolving social and cultural
notions of family and parenthood coincide with the advancement of reproductive
science, medicine, and technology that now permits people to create families in
ways quite different from the traditional paradigm in which children are born of
one woman impregnated directly by one man. As our understandings of the
family evolve, so do our understandings of parenthood. “Parenthood in our
complex society comprises much more than biological ties, and litigants



                                          11
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increasingly are asking courts to address issues that involve delicate balances
between traditional expectations and current realities.”           N.A.H. v. S.L.S.
(Colo.2000), 9 P.3d 354, 359. This is such a case.
       {¶ 31} But the public policy inherent in the discussion of children in these
families, including same-sex couples, is largely undefined in Ohio. The current
statutory definition of “parent” is often unhelpful in custody determinations in
families headed by same-sex couples.
       {¶ 32} To the degree that guidelines exist, they have been established,
with some trepidation, by the courts. Thus, in Bonfield, this court declined to
adopt the “psychological” or “second parent” tests described in V.C. v. M.J.B.
(2000), 163 N.J. 200, 233, 748 A.2d 539, and In re Custody of H.S.H.-K. (1995),
193 Wis.2d 649, 658, 533 N.W.2d 419, because it is not the province of the
judiciary to expand a statutory definition created by the General Assembly.
Accord Smith v. Gordon (Del.2009), 968 A.2d 1, 14-15. Instead, we attempted to
apply the extant legal standards to a same-sex couple and their children. In doing
so, we were driven not by “judicial activism” but by the reality that children exist
in an array of familial configurations and that decisions about the custody and
care of those children must be made, even in the void of legislative guidance.
       {¶ 33} Bonfield was announced almost ten years ago. Little legislative
action has followed in its wake.       Although Bonfield has proven to provide
guidance when the parent appears in court with a nonparent and expresses a clear
desire to share custody of the child with the nonparent, it is of limited value in
cases like this one, in which the parties now dispute that shared custody was ever
intended or granted. The well-being of the child while the custody dispute is
litigated is of paramount concern not only to the child and her family, but also to
the juvenile courts that must continue to struggle to apply existing statutory
definitions of a “parent” to custody determinations in same-sex couples and other
families. The stakes are too high to permit so much uncertainty.



                                        12
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       {¶ 34} In the absence of a statutory framework, the sufficiency of the
evidence to show voluntary relinquishment of a parent’s custodial rights is even
more critical. Although not required, a written agreement will demonstrate the
best evidence of the parent’s intention to share custody, particularly in cases, like
this one, in which the evidence stands in near equipoise. It is the preferred
method of demonstrating the knowing and intelligent surrender of the parent’s
fundamental right, in whole or in part, and reinforces to both the parent and the
proposed custodian the concomitant rights and responsibilities that are associated
with custody of a child.
       {¶ 35} When any parent, without benefit of marriage, voluntarily brings
another adult into the life of his or her child with the intent to create shared
custody, the parent must proceed not only with the desire to create the custodial
relationship, but also with diligence required to protect the child. The duty to
protect a child and prepare for the child’s care, both at present and in the future, is
a solemn one that flows to all parents in all families. Under certain circumstances
it also flows to the courts. As we held in Bonfield, and reiterate now, pursuant to
R.C. 2151.23(A)(2), the juvenile courts have the jurisdiction and duty to
determine custody claims of children who are not wards of a court. Bonfield, 97
Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241, at ¶ 45, 50; Morris v. Hawk,
180 Ohio App.3d 837, 2009-Ohio-656, 907 N.E.2d 763, ¶ 22.
       MCGEE BROWN, J., concurs in the foregoing opinion.
                               __________________
       PFEIFER, J., dissenting.
       {¶ 36} Is filial love something to be dangled and then snatched away,
promised and then reneged upon? Once a natural parent promises a coparenting
relationship with another person and acts on that promise, she has created a
relationship between the coparent and the child that has its own life. The natural
parent cannot simply declare that relationship over. That is what Kelly Mullen



                                          13
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attempts to do in this case and what the majority decision allows. Now, no court
will ever determine whether it is in Lucy Mullen’s best interests to have a
continuing relationship with the woman she calls “Momma,” Michele Hobbs.
Because the juvenile court in this case at the very least should have gotten to the
point of making that best-interests determination, I dissent.
       {¶ 37} The majority decision makes important points. It reinforces the
holding from In re Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d
241, ¶ 48-50, that an agreement to share custody is an enforceable agreement
subject only to a court’s review of the best interests of the child. The majority
opinion also establishes that an agreement to share custody need not be written—a
natural parent’s words and conduct may demonstrate an intent to share legal
custody with someone who is not a biological parent—and that if a natural parent
has agreed to share custody, then a court must examine what type of custody and
visitation arrangement is in the best interest of the child. Thus, promises made
between adults do not legally affect a child unless a judge decides that a parent’s
sharing custody with a nonparent is in the child's best interests.
       {¶ 38} However, the majority rests its decision on a determination that
there was reliable, credible evidence supporting the trial court’s decision that
Mullen did not relinquish partial custody to Hobbs. In my view, the trial court
gave improper weight to a document that did not exist and improperly ignored the
documents that did exist.
       {¶ 39} The factor cited by the trial court as the most crucial to its decision
is Mullen’s alleged refusal to enter into a Bonfield-type written agreement with
Hobbs regarding custody. This allegation was relied upon in error. By Mullen’s
own testimony, the issue was not even raised between the two until Lucy was
eight months old. Hobbs placed the discussion months later. Whichever is the
case, Mullen had made clear long before any discussion about a Bonfield-like
agreement that she considered Hobbs a coparent.



                                          14
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       {¶ 40} In 2004, the women together began the in vitro fertilization
process, jointly executing a consent and agreement for cryopreservation and
disposition of frozen embryos and informed consent for in vitro fertilization.
Mullen signed as the female participant, and Hobbs signed as her partner. In the
informed-consent document, Mullen specifically acknowledged her partner,
Hobbs, as a legal parent of any children born of the insemination process. Such a
statement was not necessary to allow Mullen to proceed with the in vitro
procedure but is further illustration that the women understood and agreed that
Hobbs would have a custodial role once the child was born. In addition, the
women shared the financial responsibility of the process.
       {¶ 41} Mullen became pregnant, and with Hobbs at her side, delivered a
baby on July 27, 2005. The hospital created a ceremonial birth certificate that
named the couple as the baby’s parents.
       {¶ 42} Thus, the facts show that a coparenting relationship was
established long before any talk of a Bonfield-type agreement arose. The lack of a
Bonfield agreement does not negate the fact that an agreement to share custody
already existed before Lucy was even born. A Bonfield agreement was not
necessary.
       {¶ 43} The trial court also erred in concentrating on the revocability of the
three documents Mullen signed that proclaimed that she considered Hobbs a “co-
parent in every way.” Before the baby’s birth, Mullen, through counsel, executed
a will, a health-care power of attorney, and a general durable power of attorney
for her child, in which she designated Hobbs the guardian of her minor child with
authority to act as Mullen’s agent to make decisions regarding the child. The
power of attorney was nonspringing: it took effect immediately and did not
require Mullen’s incapacitation for Hobbs to be able to make decisions for Lucy.
The document included the statement “I give my said Agent every Power with
respect to my child that I possess.”



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       {¶ 44} In each of the three documents, Mullen signed her name
acknowledging the following statement: “I consider Michele Hobbs as my child’s
co-parent in every way.” That statement was not a necessary part of the legal
documents. Mullen’s lawyer testified, “[M]y purpose in — in including that is
that I want to—without the benefit of marriage or other protections or—I—I want
to protect the rights of the co-parent to be a full co-parent. I want—I always want
to make that abundantly clear in the documents.” Mullen’s statement was a way
to show the world that Mullen and Hobbs intended to raise Lucy together,
equally.   Can an agreement that another person is a coparent in every way
possibly not include a right to custody?
       {¶ 45} It cannot.    The trial court seems to agree, and thus turns its
emphasis to the fact that the documents were revocable. But the question before
the court was whether Mullen agreed to share custody of her child with Hobbs,
not whether she eventually came to regret that decision. Whether the documents
were revocable is a red herring. The true question is when they were revoked.
Executed before Lucy was born, they were not revoked when Lucy was born,
when she was one year old, or even when the couple sought counseling because
of difficulties in the relationship. Not until the pair separated after Lucy’s second
birthday did Mullen revoke the statement “I consider Michele Hobbs as my
child’s co-parent in every way.” Any reliance on what Mullen did after she
separated from Hobbs was error.
       {¶ 46} I would conclude that the trial court’s judgment is not based upon
competent, reliable evidence. Instead of being based upon the facts of what
actually happened during Mullen and Hobbs’s relationship and their parenting of
Lucy, the decision was based almost entirely on how Mullen felt after the
termination of her relationship with Hobbs.
       {¶ 47} This case is about a natural parent’s changing her mind, and the
majority’s supposed “safeguard” for future cases does not sufficiently address



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such a prospect and completely muddies the waters regarding what steps a couple
should take to establish joint custody. The majority suggests that a would-be
coparent and natural parent “agree in writing as to how custody is to be shared,
the manner in which it is shared, and the degree to which it may be revocable or
permanent.”
       {¶ 48} Couples will justifiably wonder what the majority means when it
describes a writing that sets forth “how custody is to be shared [and] the manner
in which it is shared.” Is it not enough to say that the natural parent is ceding
partial custody to the nonparent so that the two can raise the child together
equally? Is the couple to describe in a legal document how they expect the family
dynamic to develop? Can they not let the circuitous path of family life determine
how they together raise the child? Must they define roles? Must they establish a
visitation schedule to use after an eventual break-up, before a baby is even
brought home from the hospital?
       {¶ 49} The majority also mentions that the couple should establish the
degree of revocability or permanence of shared custody in an agreement. But the
majority has already established that any agreement that is revocable is worthless
to a nonparent, even if it has not been revoked.
       {¶ 50} The majority’s other suggestion, that a couple “apply to a juvenile
court for an order under R.C. 2151.23(A)(2) establishing the scope of the legal
custody that the parent desires to share,” is like rolling the dice. The nonparent’s
future relationship with the child depends on whether the juvenile judge decides
to bless the relationship. If the judge does not, then the nonparent is left with
nothing.
       {¶ 51} This case presents an opportunity for this court to present a more
workable analysis for lower courts to employ in cases of disputed custody
between a natural parent and a nonparent, an analysis rooted in the intent of the
parties as evidenced by the nature of the familial relationship. In this and future



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cases, we should adapt the four-part test set forth in In re Custody of H.S.H.-K.
(1995), 193 Wis.2d 649, 658, 533 N.W.2d 419, to aid trial courts in determining
whether a biological parent has ceded custody to another.
       {¶ 52} In Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241,
¶ 31, this court considered whether to adopt the test that the Wisconsin Supreme
Court enunciated in H.S.H.-K. to determine whether someone who is not a
biological or adoptive parent can be accorded “psychological parent” or “second
parent” status. Under the H.S.H.-K. test, a petitioner seeking visitation rights
must prove four elements: “(1) that the biological or adoptive parent consented to,
and fostered, the petitioner's formation and establishment of a parent-like
relationship with the child; (2) that the petitioner and the child lived together in
the same household; (3) that the petitioner assumed obligations of parenthood by
taking significant responsibility for the child's care, education and development,
including contributing towards the child's support, without expectation of
financial compensation; and (4) that the petitioner has been in a parental role for a
length of time sufficient to have established with the child a bonded, dependent
relationship parental in nature.” H.S.H.-K., 193 Wis.2d at 658, 533 N.W.2d 419.
       {¶ 53} This court ultimately decided not to adopt that test in Bonfield,
finding it “inappropriate to adopt [the] four-part test to broaden the narrow class
of persons who are statutorily defined as parents for purposes of entering a shared
parenting agreement.” Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d
241, ¶ 34. But Bonfield was not a disputed custody case; the parties had alleged
that they were coparents and sought a court’s imprimatur of that status by using
the H.S.H.-K. factors to confer parenthood on the nonbiological would-be parent
so that the couple could enter into a shared-parenting agreement pursuant to R.C.
3109.04. This court held that the natural parent and her partner could simply
submit their agreement to the juvenile court for a “best interest of the child”




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                               January Term, 2011




determination, without parental status being accorded the natural parent’s partner.
Bonfield, 97 Ohio St.3d 387, 2002-Ohio-6660, 780 N.E.2d 241, ¶ 50.
       {¶ 54} Here, however, there is a dispute. Hobbs wants the custody that
she believes Mullen ceded to her. The juvenile court must determine whether
Mullen did indeed cede custody.        Though admittedly not designed for the
particular purpose of determining whether custody has been ceded, adapting the
H.S.H.-K. test to custody cases would present a structured way to determine
whether there was a meeting of the minds on an agreement to share custody and
whether the agreement was acted upon. The test determines whether a parent-like
relationship developed between the nonparent and the child. It requires more than
a simple promise or aspiration regarding custody and limits the possibility of a
nonparent’s reliance upon a misconstrued sentiment in establishing a custodial
relationship with the child.
       {¶ 55} For instance, the first element requires consent to and cultivation
of a parent-like relationship between the adult and the child by the natural parent.
Words and actions are necessary to prove the first element. H.S.H.-K., 193 Wis.2d
at 658, 533 N.W.2d 419. In this case, not only did Hobbs and Mullen discuss
having a child together, but the couple entered the in vitro process together and
paid for it together and listed both their names as parents on a hospital-generated
birth certificate; Mullen signed three legal documents that referred to Hobbs as a
“co-parent in every way” and encouraged Lucy to call Hobbs “Momma.”
       {¶ 56} The second element – that the petitioner and child live together –
again requires evidence of an intent to create a family-like environment for the
child. Id. Here, for the first two years of Lucy’s life, Mullen, Hobbs, and Lucy
resided in the home that the women owned together.
       {¶ 57} The third element further ensures that the relationship be parental
in nature by requiring that the petitioner take significant responsibility for the
child's care, education, and development. Id. Hobbs cooked for Lucy, cared for



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her when she was ill, and adjusted her own work schedule to transport Lucy to
and from daycare. Though Mullen carried more of the childrearing role than
Hobbs, Hobbs shared significant responsibility for Lucy.
        {¶ 58} Finally, the fourth element requires that the relationship be
significant in duration and depth. Id. It is not enough that the child and adult have
bonded; the child must be bonded to the adult in a relationship that is “parental in
nature.” Id. At the time Hobbs filed her complaint to gain partial custody of
Lucy, she had been living with Lucy and caring for her for almost all of Lucy’s
life.
        {¶ 59} Adapting the H.S.H.-K. test to determine whether custody has been
ceded to a nonparent from a parent would establish important benchmarks for
biological parents and partners and would create less of a “know it when we see
it” rubric for trial judges in addressing custody matters. It would ensure that a
nonparent cannot gain custody of a child without first having a significant, parent-
like relationship with that child that the natural parent allowed and encouraged.
Finally, a natural parent’s decision to end her relationship with a coparent would
not obviate the reality of a child’s relationship with a coparent.
        {¶ 60} I would hold that Hobbs fulfills all the H.S.H.-K. elements and that
this case should be remanded to the juvenile court to determine whether shared
custody would be in the best interests of the child. The majority’s decision today
is the last step in this saga, and sadly, the best interests of Lucy will never have
been considered at any level. Instead, Mullen’s self-interest will be the sole
determining factor.
        {¶ 61} Besides Hobbs and Lucy, common decency is another victim in
this case.   Mullen was able to use the law as a weapon because same-sex
coparents lack legal rights. The law has not caught up to our culture, and this
court has failed to craft a rule that addresses reality. Mullen and Hobbs employed
a well-versed lawyer who represents people in their situation, and with his advice



                                          20
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did all they could do to protect Hobbs. A maternal relationship existed between
Hobbs and Lucy. Mullen taught her daughter to call another woman “Momma”
and to love her as a mother. She now wishes she hadn’t, and for the majority,
that’s enough. It shouldn’t be.
                               __________________
         Newman & Meeks Co., L.P.A., and Lisa T. Meeks; and Lambda Legal
Defense and Education Fund, Inc., and Christopher R. Clark, for appellant.
         Dougherty, Hanneman & Snedaker, L.L.C., and Douglas B. Dougherty,
for appellee Kelly Mullen.
         Terry W. Tranter, for appellee Scott Liming.
         Sallee M. Fry, urging reversal for amicus curiae National Center for
Lesbian Rights.
         Matthew J. Burkhart 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; 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, for amici curiae National Association of Social Workers and National
Association of Social Workers, Ohio Chapter.
                             ______________________




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