Posted on 06/30/2006 5:10:11 PM PDT by DBeers
COLUMBUS - A mother plans to appeal a magistrate's decision that she cannot use the state's constitutional ban on gay marriage to take away her former partner's visitation rights, the mother's lawyer said Thursday.
Family courts often settle custody disputes between unmarried people and even people of the same sex, such as a grandmother and aunt or an adult sibling and a parent, according to the ruling by Magistrate Darrolyn Krippel of Franklin County's domestic relations court.
"Granting custody of a minor child to a nonparent is done every day," Krippel wrote in the June 22 opinion. "The granting of custody to these nonparents is not against public policy."
Denise Marie Fairchild's lawsuit had asked the court to cancel Therese Marie Leach's rights, granted in 2001, to see Fairchild's son.
Fairfield argued that Leach shouldn't be considered a parent under Ohio law because she did not give birth to the boy, did not adopt him and cannot marry Fairchild because of the gay marriage ban.
The ban, which voters approved overwhelmingly two years ago, denies legal status to all unmarried couples, gay or straight.
The boy, conceived through artificial insemination, was born while the women were a couple.
Fairfield's attorney, Keith Golden, said Thursday he was disappointed by the decision and would appeal to a Franklin County judge. He said he had tried to distinguish this case as "co-parenting" as opposed to a "run of the mill" case of shared custody.
As a result, the gay marriage ban is violated "by treating these people as parents," Golden said.
The ruling makes clear that granting custody is not related to defining a marriage, said Camilla Taylor, an attorney with Lambda Legal Defense and Education Fund, a gay rights legal advocacy group representing Leach.
It shows "you can't use a constitutional amendment as a weapon to attack a cherished relationship between a child and an adult that that child considers a parent," Taylor said. "Therese raised that little boy since his birth, and he should be allowed to see her."
At Fairchild's request, the Franklin County Domestic Relations Court gave Leach parenting rights in 2001, saying the women "shall be treated in the law as two equal parents of their minor child."
They sought the agreement so Leach could make medical decisions for the boy in Fairchild's absence, Fairchild said.
Update on the Ohio "lesbian" custody case. Another bizarre judical ruling...
What a mess.
It's the right decision. There may or may not be legitimate reasons to deny visitation, but to do so based on the gay marriage ban would be ex post facto.
My suit? It's asbestos. I always wear it to these things...
Really bad. Nazgul destroying morality, truth and common sense.
When you start out doing evil, you can never make it "right." But you can give a child like this a chance by allowing a real two-parent family to give him a home.
I would agree IF I adopted the obtusely construed rational basis employed by the court that considered a homosexual sex partner to be on par with biological parents or relatives e.g. "unmarried people and even people of the same sex, such as a grandmother and aunt or an adult sibling and a parent" -the court is reaching into bizarre territory here...
Why don't they just auction him off?
Pissing off a woman is bad enough. Pissing off a lesbian is just too much. It smacks of irony that a lesbian is using anti-gay legislation for her own benefit.
It's the legally right decision because the Constitution forbids ex post facto law. Whether visitation should have been granted in the initial case is an independent matter.
Just a Magistrate's decision. Thankfully, there will be more opportunities down the road fix this disaster.
As a divorced father in Ohio, I can tell you that's all it takes. Very few judges overrule their magistrates, I imagine because it could be an embarassment to them (the judges). After all, they're the ones who appoint the magistrates.
Who appoints the judges..Are they district judges, or higher?...Are they elected?
I think judges need to be appointed by the executive in a direct relationship -- And it shouldn't extend to a 3rd party "Magistrate"...There is a loss of accountability when the judicial appoints judicial. And so you end up with an army of lib whacko Magistrates..and no way to effectively remove them...Like artifacts...(or a memory leak in your pc)
On this controversial case though, I expect more powerful lawyers to swoop in and take it all the way...Hopefully to the better decision
Yes, in Ohio. Problem is, nobody thinks about whose lever they're pulling until they're getting screwed by the system.
I live in Columbus. You're sunk here, too.
I do not know the details argued -I do not think the "gay marriage ban" relevant as such, neither "ex post facto law" come into play.
On its face it seems absurd regarding custody because at best the "lesbians" had a contract regarding care of the child -not "ownership". The "lesbians" were never "married" so the State really does not have an "in" regarding a custody dispute. In essence it should have been found that since there was no adoption the non-biological "lesbian" had no standing regardless that without a divorce proceeding the court had no standing...
People that live with you and have sex with you do not get a "right" to your biological children EVEN if you are heterosexual and marry them... Either the court ruling premised is in a new and novel construed concept of common law adoption or the ruling in this case suggests the court "feels" special rights should be accorded those engaging in homosexual activity...
"It's the right decision. There may or may not be legitimate reasons to deny visitation, but to do so based on the gay marriage ban would be ex post facto.
My suit? It's asbestos. I always wear it to these things..."
You are correct. No asbestos needed. If it ruled the other way, then the implication is that single parents or non-traditional families cannot have custody, an absurdity since most custody battles are between the children of divorcing parents, each becoming single parents.
Morevoer, the political impact would be very bad, since 'gay marriage' proponents could bring in the kids on this and say that by denying parental rights to custody, gay marriage bans are breaking up families(!!)
I don't think we're that far apart. I agree that the "gay marriage ban" is irrelevant to the custody case - it's just that, since the GMB was passed well after the custody case, even if it was relevant to other, current cases, it would be unconstitutional to apply it to this one, since it was not the law at the time.
Damn that's a run-on sentence...
Thanks, and please also see post #19.
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