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Ohio Custody Case Decided

8/29/2012

3 Comments

 
An Ohio Common Pleas court judge issued a ruling that protects the parental rights of a non-biological parent. Rowell v. Smith, Case No. 08JU-10-13850, Franklin County, Ohio Common Pleas Court, Juvenile Branch (August 27, 2012).

Julie Rowell and Julie Smith were in a committed lesbian relationship during which Smith gave birth to Maddie. When the couple ended their relationship, Smith decided Rowell was not entitled to any further contact with the child.

Rowell filed a petition for joint custody and Smith fought it tooth and nail. On August 27, 2012, Judge Elizabeth Gill adopted the Magistrate's decision.
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The Magistrate, after extensive hearings and testimony, found that Smith had "permanently and impliedly relinquished partial custodial rights to Rowell." This means Rowell has the right to maintain her relationship with Maddie, who is almost 9 years old. The custody battle started when Maddie was 5 years old.

The court order also prohibits Smith from permanently removing Maddie from the State of Ohio without the witten consent of the court or Rowell.

This is another instance involving lesbians behaving badly. Rowell and Smith decided together to start a family. According to the court, Rowell was intimately involved in all aspects of parenting Maddie--from selecting the anonymous donor to participating in the insemination to cutting the umbilical cord--to caring for her while Smith was working. These were two involved parents whose primary focus was a little girl.

Smith, however, went to extraordinary lengths to deny Rowell's part in everything. Even to the point of denying their relationship. At least she is not claiming to be heterosexual.

One of the interesting parts of the decision involved a rather lengthy recitation of what the couple did not do. No wills, financial planning, disability insurance or provision for Maddie. Smith never executed a will or other estate planning documents until 2010.

Parents need to understand that while "life gets in the way", there is no excuse for failing to talk to a lawyer and take the necessary steps to have an estate plan in place. Smith's mother never acknowledged her daughter's relationship or sexual orientation. Had Smith died without a will or guardian provision, her mother could have been named Maddie's guardian. And, Rowell would have had a fight on her hands--the outcome of which is uncertain.

Now, Smith named her sister as Maddie's guardian. However, the court established Rowell's custody rights and, even if she cannot get custody, she has the right to maintain her relationship with Maddie.

All parents need to take whatever action is necessary to protect their children. Joint custody agreements, wills, trusts, guardian designations, financial planning, insurance policies--and make sure the beneficiary designations are current--are just part of the estate planning that is required.

Anything less ignores your child's needs at a time when she is most vulnerable.

3 Comments
Julie Smith
6/17/2014 06:57:38 am

Interesting. This article fails to disclose one very important fact....that Smith IS a lawyer. Perhaps she did not have a shared custody agreement, power of attorney, Guardianship papers or a Will because that was exactly her intent? As a lawyer, Smith knew the child's disposition in the event of her premature death which was in accordance with Smith's wishes - to remain with Smith's family. In this instance, Smith was denied the opportunity to "choose" a custodian for her child but rather a court was permitted to redefine a situation and relationship after the fact. The lesson is NOT only to get your wishes down in writing but also if you are living with someone and you happen to have a child, beware......they now have a claim to custody whether they are a parent or not or whether you consent or not...at least in Ohio. Your conduct of not doing certain things is an implied acquiescence to shared custody. Scarey.

Reply
katey
8/8/2014 05:14:11 am

Interesting, Julie Smith. It seems if you intentionally PLAN to have a child with your partner, a parent-child relationship is forged. You knew and tried to selfishly keep your child away out of spite it would seem. Shameful.

Reply
Julie Smith
8/8/2014 10:45:24 pm

That is certainly one side of it Katey. For your sake, I certainly hope you do not go through life believing in the juvenile justice system or believing everything you read. You are entitled to your opinion as am I- I think it is shameful to judge people you know nothing about and rendering such a judgment based upon 1/2 of the story. I am simply trying to get information out to parents in Ohio so they can take steps to protect themselves.


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    Author

    Joan M. Burda is a lawyer with a solo practice in Lakewood, Ohio. She limits her practice to estate planning. She writes on a variety of topics and is an adjunct professor at Case Western Reserve School of Law. Joan is nationally recognized for her work in addressing legal issues affecting the LGBTQ+ community.

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Joan M. Burda Attorney at Law • lgbtlaw@mac.com • 216.832.8825
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