Life After Lucy

In historic case, lesbian co-parent loses rights to child

Aug 10, 2011 at 2:06 pm

The constant reminders are all around Michele Hobbs' Prospect Hill home — a puppy named Leo, a half-finished garden. Lucy's room is still just the way she left it, the fish she caught in a neighbor's pond still in the fishbowl. At times, says Hobbs, it's overwhelming.

Nearly every minute of the day, she says, she's reminded of the 6-year-old girl she considers her daughter but hasn't seen since the Ohio Supreme Court's July 12 decision that terminated her parental rights.

"It's devastating," Hobbs says between sobs. "The sunflowers Lucy planted in the garden are blooming, and she's never going to see them. Her puppy is still here, her fish, all left behind. What's worse is that I know Lucy's probably hurting, too. She doesn't know what happened to me. I was there, then I'm not. No explanation."

Their separation is the culmination of nearly four years of legal wrangling between Hobbs and her former life partner, Kelly Mullen, that wound its way through several judges in two different courts before landing in the state's highest court in February. The crux of the case: What makes someone a parent?

Hobbs and Mullen had been a couple for three years when they decided to start a family, opting for in vitro fertilization. After securing a second mortgage on their home to help pay for the $12,000 in vitro procedure, and getting one of Hobbs' friends, Scott Liming, to be the sperm donor, everything fell into place.

Mullen got pregnant in late 2004, and the next July gave birth to a 7-pound, 10-ounce girl the couple named Lucy.

On the in vitro forms, Mullen was listed as the mother. Hobbs was listed as "partner" and "female participant." Other legal documents they had prepared and signed, including Mullen's will and a power of attorney form created before Lucy's arrival, included Mullen's sentiment that she considered Hobbs "to be Lucy's co-parent in every way."

Hobbs was there for the birth and cut the umbilical cord. On the official birth certificate, Liming was listed as the father but surrendered any custodial rights. On a ceremonial certificate created at the couples' request, Christ Hospital listed both Mullen and Hobbs as Lucy's parents.

"We were beside ourselves,” Hobbs says. “We were a family, finally.”

The couple raised Lucy for two years — Mullen was "Mommy" to Lucy and Hobbs was "Mama" — before their family started unraveling. The couple grew apart and agreed to separate. In late 2007, Mullen moved from the home, taking her daughter, then refused to let Hobbs see Lucy.

Three months later, Hobbs went to court to seek joint custody.

Initially, Hobbs was granted visitation rights, but an appeals court later overturned that decision. As the case made its way to the Ohio Supreme Court, visitation was reestablished and Hobbs had Lucy for six hours each Sunday. That came to an end on July 12, just days before the girl's sixth birthday.

In its 4-3 decision, the court said Mullen had never ceded full custody of Lucy, and even on the documents that indicated she considered Hobbs a "co-parent in every way," those rights were revocable at her leisure. The only agreement that would have survived her decision — a specific statement of custody — had never been documented, the majority ruled. Although, Justice Robert Cupp added in his majority opinion, it isn't always required.

The court's decision left many puzzled.

Scott Knox, the Cincinnati attorney who had drafted many of the couples' earlier agreements and later testified in the case, admits to being both confused and disappointed by the decision.

"There were so many indications of Kelly's intention to share custody, from the initial in vitro documents to estate planning, that included that phrase 'co-parent in every way.' That doesn't feel vague to me," Knox says. "We (Kelly, Michele and I) discussed it at the time, and that was the intent. Frankly, I don't know how broader you can make the statement without including 'Dear Supreme Court: If you're reading this, enforce it.' "

Justice Paul Pfeifer, in writing the dissenting opinion in the case, was the only member of the court to agree. (Chief Justice Maureen O'Connor and Justice Yvette McGee Brown also dissented, but only because they thought the case should never have advanced to the court.)

"Can an agreement that another person is a co-parent in every way possibly not include a right to custody? It cannot," Pfeiffer wrote.

He added: "Once a natural parent promises a co-parenting relationship with another person and acts on that promise, she has created a relationship between the co-parent and the child that has its own life. The natural parent cannot simply declare that relationship over."

He also pointed out that, in his view, the court hadn't given proper weight to Hobbs' documents, and too much weight to "a document that did not exist" — Mullen's written revocation of Hobbs' "co-parent" rights.

"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," he wrote. "It shouldn’t be."

The ruling leaves Hobbs without further legal recourse, although she says she's still consulting attorneys, clutching to a last hope. Mullen, who now is the only person who can allow Lucy to see Hobbs, declined to comment for this story.

The case, and the ruling, have grabbed its share of national attention and debate from unexpected corners.

Mullen drew support from Liberty Counsel, the Virginia-based nonprofit litigation and policy group affiliated with Jerry Falwell's Liberty University that has opposed same-sex marriage and gay adoption issues.

Meanwhile, Fathers and Families, a parents' rights group based in Boston, has supported Hobbs despite its focus on fathers' rights.

"Most of the public looks at it as a gay rights case," says Ned Holstein, the group's founder and chairman. "The Ohio court looked at it as a matter of what the technical definition of a parent is under law. We don't see this case through either prism. We look at it as a case of what's best for the child."

When a child identifies two people as their parents for such an extended period of time, Holstein says, it's best to maintain those relationships.

"You just don't yank a parent away," he adds.

Holstein says, while the decision in this case wasn't a surprise, it is a looming concern. With more than 12,000 children living with same-sex couples in Ohio, and thousands more nationwide, the same issues will come before judges again.

"Courts are more inclined to make sole-custody rulings, and most of the time custody goes to the mother,” Holstein says. “Where does that leave non-biological parents? They stand to lose, and so does the child.”

The National Center for Lesbian Rights, the San Francisco-based advocacy group, also weighed in. The group filed an amicus brief with the court and is involved in many others around the nation.

Cathy Sakimura, a staff attorney with the group, says decisions like the Ohio court's are "tragic" for not only Lucy's family but also other same-sex families in the state. Courts are slowly coming to the realization that parental bonds, however, whether they're based on biology or not, need to be protected.

"A lot of states have recognized that they need to allow children to maintain contact with someone they've considered a parent, even if they aren't, biologically or adoptively,” Sakimura says. “Courts have acted with flexibility to act in the child's best interest. Unfortunately, that's not always the case.”

She gives a running toll of states where the courts have acted with flexibility to recognize those bonds.

"Oregon, California, Delaware. We just won a huge decision in North Carolina, we had one in Kentucky last year," Sakimura says. "We've made considerable progress, but in some places we still have a long way to go."

In Hobbs' case, it's unlikely any strides in those courts will help. When the court ruled, Hobbs says, she called Mullen to tell her of the result and ask if they could work out a visitation agreement.

"She told me it was all my fault, then hung up on me," says Hobbs. Later, her request to let Lucy have a birthday party at her house the following weekend, she says, was also rebuffed, and Mullen has stopped taking her calls. They've had virtually no contact since.

"I can't give up," Hobbs says. "If there's a 1 percent chance I'll get to see Lucy again, I have to keep trying."

Until then, she admits she consoles herself by thinking about their reunion.

"A couple of weeks before (the court ruling), Lucy was walking up the stairs and stopped. She looked at me and said, 'I know my mommy doesn't like you, but if she ever doesn't let me come over, I'll get in my car and drive over anyway,'" Hobbs says, crying again.

"I know she loves me. And I hope if anyone sees her, they tell her that I miss her and I love her."

Living Out Loud is hosting an event to show support for Michele Hobbs at 9 p.m. Aug. 27 at The Avenue in Covington. All are welcome to attend.