Losing Lucy

A local woman's legal case will help same-sex parents across Ohio, but she might lose her daughter in the process

Mar 3, 2010 at 2:06 pm

Michele Hobbs is drowning in paper. She does her best to sort, file and label it, but each passing month brings more.

Two years of litigation have left her with reams. The transcript to a single day of trial fills a binder 3 inches thick. Pre-trial depositions fill folders of their own. Anxiously awaited court decisions, weighing heavier in Hobbs’ heart than in her hand, land with rude slaps when she tosses them on a pile.

Sitting at a conference table in her attorney’s office, Hobbs has the last two years of her life parceled out before her. She has organized tidy stacks of case briefs, trial transcripts and judicial opinions, the language of which have filled her with hope and disappointment. Hobbs tries to connect these pages in a linear timeline to explain her situation, but hours later the neat piles have melted into each other and the case still confounds. The chronology of the litigation is a maze — Hobbs’ case has passed through the hands of a magistrate and five judges in two courts over the last two years, and with an appeal pending at the Ohio Supreme Court she’s approaching the end of the line.

But for Hobbs, the situation is tragically simple: Somewhere in Cincinnati is a 4-year-old girl named Lucy, who she helped raise for two years and loves as her daughter. Because she is not biologically related to Lucy, the courts have ruled that Hobbs has no legal right to see her. But love isn’t so easily thwarted.

After the minor wins and losses of two years in court, Hobbs is financially, physically and emotionally exhausted. It’s clear the paper on the table is only important to her in that, for the moment, it is separating her from her daughter, who she hasn’t seen since Christmas and might never see again. There is fatigue in her voice.

“It’s hard to keep fighting. I can’t go anywhere to take a breath. It’s a suffocating longing. When I’m with Lucy, it sustains me.”

And baby makes three

Sandwiched between court documents in one of her binders is a photo taken five years ago, in another era in Hobbs’ life. It is an ultrasound of Lucy, when she was a 5-month-old fetus in the womb of Hobbs’ former partner, Kelly Mullen. The couple had used in vitro fertilization to impregnate Mullen — the younger of the two by eight years.

Mullen and Hobbs were so excited to see their daughter that a month later they paid for another photo. The amniotic peace of the pictures is a stark contrast to the bitter tug of war that would begin two years later.

Hobbs remembers the thrill the ultrasounds gave them. “We knew that she would have beautiful lips,” she says.

Hobbs and Mullen met at a business expo at the convention center in spring 2000. They started dating, and three years into their relationship they built a house in Prospect Hill together, for which Hobbs was the general contractor. At the same time, the couple started talking about having a child by way of in vitro fertilization, a $12,000 procedure that they paid for by securing a second mortgage on their home.

Hobbs had a gay friend in Atlanta named Scott Liming who she thought would be the perfect sperm donor. Hobbs first met Liming in 1996 and thought he was “gorgeous.” She joked about having his kids one day.

At Hobbs’ request, Liming visited Cincinnati to meet Mullen, who agreed to use him as the father. When the timing was right, Liming Fed-Ex’ed his sample to Cincinnati, and with the help of the Center for Reproductive Health Mullen was impregnated.

In court testimony, Mullen claims that she always wanted to be a mother, and that Hobbs was merely playing the role of “supportive girlfriend.”

But Hobbs says Mullen fully intended for her to be a co-parent. As evidence, she points to the in vitro fertilization consent forms, on which Hobbs’ name appears as “partner” and “female participant.” Before Lucy’s birth, Mullen also signed a will and two powers of attorney, all of which included the sentence: “I consider Michele Hobbs to be Lucy’s co-parent in every way.” (Mullen later revoked these documents when she separated with Hobbs.) Hobbs attended doctor appointments and Lamaze classes with Mullen, cooked for her — Hobbs’ homemade chicken wings were one of Mullen’s favorite dishes — and drove her to the hospital when her water broke.

Mullen gave birth to a 7-pound, 10-ounce girl at Christ Hospital in July 2005. Hobbs was in the delivery room and cut the umbilical cord. The names of both Mullen and Hobbs appear on Christ Hospital’s ceremonial birth certificate, above Lucy’s ink footprints. Hobbs has a black and white photo of the three of them together in the delivery room. Hobbs has Lucy in her arms, and she and Mullen are glowing.

According to friends testifying at the trial — including Cincinnati City Councilwoman Leslie Ghiz — as Lucy grew, Hobbs and Mullen behaved as a family and shared responsibilities for raising her. Hobbs says she taught Lucy how to brush her teeth, potty trained her, cooked for her and drove her to and from daycare. According to Hobbs and others, Lucy called Mullen “Mommy” and Hobbs “Mama.” They attended Christ Church Cathedral on Sundays.

Falwell group helps defendants

In July 2007, when Lucy was 2 years old, Mullen and Hobbs decided to split. Hobbs says the relationship had begun to unravel, and after going through counseling they decided to end it. The pair lived in separate rooms of their house for three months, still sharing in Lucy’s care, before Mullen left with Lucy and refused Hobbs’ requests to see her. Hobbs filed a complaint for joint custody in December 2007.

The case went to trial in July 2008 before Hamilton County Juvenile Court Magistrate David Kelley. The trial lasted for two days. Christopher Clark, a senior attorney with the national gay rights group Lambda Legal, represented Hobbs pro bono and argued on her behalf at the trial.

“It was proven conclusively,” Clark says, “that Michele Hobbs is a mother to her daughter and that was the agreement that she and her partner had all along.”

The evidence was overwhelming that Hobbs and Mullen wanted to have a child together, Clark adds. “They told their family, their community, their friends, their daughter and each other that they were both mothers,” he says.

In December 2008 Kelley ruled in Hobbs’ favor, granting her shared custody of Lucy. “The evidence and testimony presented at trial shows that the women had an agreement to have and raise a child together,” Kelley writes in his decision. “Ms. Hobbs’ testimony on this issue was very credible.” Kelley adds that Mullen’s testimony to the contrary “is not supported by (her) actions during the period leading up to and immediately following Lucy’s birth.”

Mullen appealed the decision and appeared on Channel 5’s newscast the following month with Liming, Lucy’s biological father, who had moved to Cincinnati to be a part of Lucy’s life.

“Right now every Saturday, my daughter goes and spends six hours of unsupervised time with someone that I don’t even want her to be with,” Mullen said.

“This is an issue that opens up Pandora’s Box for everyone and possibly anyone,” Liming said.

Mullen picked up where he left off: “It’ll give the opportunity for any third party, a baby sitter, a nanny, anybody that’s had substantial interest in helping you with your child, they can now file and say, ‘Well, you’ve implied custody to me.’ ”

Mullen and her attorney, Karen Meyer, both declined interviews, and Liming didn’t reply to phone and e-mail messages.

Oddly, Mullen’s argument has been repeated by conservative groups such as Virginia-based Liberty Counsel, affiliated with Jerry Falwell’s Liberty University. The group has also fought against same-sex marriage and adoptions by gay people.

Lambda Legal’s Clark points out that Hobbs went to fertility treatments with Mullen, injected her with hormones, attended a birthing class, was in the delivery room with Mullen, and cut Lucy’s umbilical cord.

“To compare her situation to that of a babysitter or nanny is absurd,” Clark says. “There is nothing under the law that would allow a baby-sitter or a nanny to go into court and seek custodial rights. These are mean-spirited scare tactics of the lowest order.”

“We’re talking about a woman who is a mother and whose little girl calls her ‘Mama,’ ” Clark adds, “and no rewriting of history by Kelly Mullen is going to change that.”

A reversal of fortune

In April 2009 Mullen’s appeal was considered by Juvenile Court Judge Thomas Lipps, who overturned Magistrate Kelley’s decision and terminated Hobbs’ custody of Lucy. Lipps based his ruling on Mullen’s “consistent refusal” to enter into a written custody agreement with Hobbs. According to Hobbs, a year after Lucy’s birth the couple discussed signing a written agreement — which helps cement the custodial rights of a non-biological parent, but isn’t mandatory proof of parenthood.

(Hobbs’ lawyers argued, and the First District Appellate Court later confirmed, that a contract of shared custody can be implied on a non-biological third-party through words, actions or deeds, not just a written agreement.)

Hobbs says Mullen was afraid that Liming would need to be involved in the agreement and might assert custody rights of his own. Hobbs dropped the idea and didn’t raise it again until she had broken up with Mullen.

“It’s kind of like getting your passport renewed,” Hobbs says. “My passport had expired. I knew I had to get it done, but I knew I had a window. It wasn’t critical.”

She says when the relationship was going well, memorializing their custody of Lucy didn’t feel like a top priority.

In his decision, however, Lipps wrote that Mullen’s refusal to enter into a written agreement with Hobbs was proof that she never intended Hobbs to be Lucy’s parent. Lipps arrived at this conclusion after reviewing the testimony and evidence, although he didn’t have the benefit of sitting through the two-day trial to gauge firsthand the credibility of each party.

Incidentally, Lipps and Mullen’s father, Michael Mullen, graduated from Elder High School within three years of each other. They both played basketball in 1965, Mullen on the varsity squad and Lipps on the freshman team. Lipps was in the same class (of 1968) as Kelly Mullen’s uncle, Richard Mullen.

For this reason and others, Hobbs intends to file an affidavit of disqualification with the Ohio Supreme Court to nullify Lipps’ ruling on the grounds of a possible conflict of interest.

In a telephone interview, Lipps acknowledged that a Rick Mullen was in his class at Elder High but said he has no relationship with him. “This was not brought up at all to me while I was hearing the case,” Lipps says. “It had no bearing whatsoever on my decision.”

Hobbs appealed Lipps’ decision to the First District Court of Appeals, where a three-judge panel reviewed the case. On Dec. 31, 2009, Judge Sylvia Hendon ruled in favor of Mullen again, stating, “We do not doubt that Hobbs bonded with Lucy. The record is replete with evidence that Hobbs loves this little girl. But the trial court did not err. Hobbs has no legal right to share in Lucy’s custody.”

The appellate court, which is typically deferent to the fact-finding of lower courts, relied heavily on Lipps’ conclusion that Mullen’s refusal to sign a written agreement indicated that she never intended to share Lucy’s custody.

Hobbs hasn’t seen her daughter since Christmas, and although she feels desperate at times she remains determined.

“I do believe as sure as my hands are at the ends of my arms, they’ll be around my daughter again,” Hobbs says.

On Feb. 12, her lawyer, Lisa Meeks, submitted an appeal to the Ohio Supreme Court — Hobbs’ final opportunity to see her daughter again.

“I’ve done enough domestic relations work to know that people are not at their best when they’re breaking up, and more than one client has been willing to use their child as the battleground,” Meeks says. “The sad thing is that the little girl is being harmed.”

Case will help other parents

Ironically, while devastating for Hobbs, the appellate court’s decision offers an important precedent for same-sex couples raising children in Ohio.

Almost 12,000 children are being raised by same-sex couples in Ohio, according to a UCLA report. The ruling against Hobbs is perhaps the first time that an Ohio Appellate Court has explicitly stated that among same-sex couples, for whom adoption is not an option, “the law does not require a written agreement to establish shared custody.”

The ruling goes on to say that the intention to share custody can be proven through conduct. This language is important because it confirms that previous case law on non-biological parents also applies to same-sex relationships. In Hobbs’ situation, however, the courts determined that because the couple discussed but never signed a written agreement, Mullen had never intended to share Lucy’s custody.

“My lawyers have told me all along that this is the case that can make a change for the community at large,” Hobbs says. “People will be able to use my precedent. Non-biological parents will have some rights to their children. If that’s making me a martyr, it’s not what I want to be. I want to be Lucy’s mom.”

At this, Hobbs begins to cry.

“You shouldn’t have to miss someone this much,” she says. “Someone who’s healthy, safe and alive. Just because someone doesn’t want you to see her.”

Hobbs’ case has attracted the attention of Glenn Sacks, executive director of Fathers and Families, a national organization that advocates for fathers who have lost custody of their children. Hobbs’ situation involves some of the same family court issues that his group is fighting to reform, Sacks says.

“I see it as a parenting issue, not a gay issue,” he says. “The relationship between children and their parents needs to be protected.”

Children who are denied access to one of their parents can blame themselves, Sacks says, creating deep emotional and psychological problems.

“These children are greatly harmed when they lose one of their parents, be it a father or a mother,” he adds.

‘She’s mama’

These days Hobbs finds herself avoiding pictures of her daughter; they’re just too painful. “Any picture I see of Lucy makes me miss her,” she says. “I live in the same house that she was born in. Her things are still on her bed, and they will stay there. I walk by them every night.”

“Lucy is hurting now,” Hobbs adds, “and when she finds out later on in life what her mother did, she’ll be hurting then.”

Hobbs is putting together a Web site, www.TruthForLucy.com, where she will post court documents, pictures of Lucy, birthday cards and audio recordings. She hopes to finish it this week.

Hobbs has a recording of Lucy’s voice from August 2008. Magistrate Kelley’s decision was still pending at that time, but Hobbs had interim visitation rights to see Lucy for six hours every Saturday. On this particular day, they were going to the zoo. Lucy was three years old, and was trying to explain that Mullen wanted her to call Hobbs “Michele.” It takes her little mind a full stammering minute to arrange the syntax of the sentence, but finally she gets it right, capturing her complex situation with a child’s clarity.

“Mommy says that ‘Mama’s not Mama, Mama’s Michele,’ ” Lucy says. “So I say, ‘No Mommy, she’s Mama!’”

(Photo: Lucy with Michele Hobbs in happier times. Photo provided by Michele Hobbs.)