Friday, March 28, 2008

Does Gay Marriage Ban Invalidate Custody Agreements?

In this Ohio case, I am inclined to say no.
An Ohio woman says the state's ban on same-sex marriage is grounds for barring her ex-partner from sharing custody with her son.

Thursday the Court of Appeals will hear her case. Last June a judge in Columbus ruled that the amendment has no bearing on a signed agreement between Denise Fairchild and Therese Leach that they would share custody of the boy, now aged 11.

The dispute over custody began in 2005 after the women ended their relationship.

After their son was born in 1996, both women parented him. In order to ensure that Leach had a protected legal relationship with the child, the two women signed a joint custody agreement. Such agreements were approved by the Ohio Supreme Court in 2001.

That same year an Ohio court approved the joint custody agreement stating they would share custody.

After Leach and Fairchild broke up, Fairchild sought to terminate the custody agreement, citing the 2004 state amendment limiting marriage to opposite-sex couples.

I don't particularly approve of same sex parenting. But that is not the issue here. These women entered into an agreement (which excluded the bio dad, of course, but never mind.) That explicit agreement sets this case apart from marriage. In a marriage, both members of the couple are assumed to be the parents. That presumption has been in place for centuries, precisely because it is a safe presumption for opposite sex couples. I think we would all be far better off if same sex couples handled their relationships through a series of contracts, rather than trying to rewrite the presumption of paternity into a generic "presumption of parentage."

In this case, the two women did exactly what I think they should have done, and what all same sex couples ought to do: they signed an explicit agreement regarding the upbringing of this child. One of them now wants to set that agreement aside, because of strains in their relationship. I don't think the court should help her renege.

1 comment:

Rea said...

"I think we would all be far better off if same sex couples handled their relationships through a series of contracts..."

...and I think -we- would all be better off if heterosexual bigots got off their pedestals.

Contracts are for corporations, products, and capital, or negotiations regarding such. We are human beings.

But if that 'same-sex contract' is such a good idea in your book, perhaps you might recommend it to a congress member, governor, or another person in a position of legal influence. I'd be supremely surprised if they'd touch it with a ten foot pole, because it is nothing short of -demeaning-.