Final Word on Custody Case

Last week, the Supreme Court of Ohio upheld an appeals court's prior ruling affirming the enforceability of a court-approved child custody agreement in a case involving lesbian mothers Theresa Leach and Denise Fairchild. It is the first high court to address and clearly reject the argument that an antigay constitutional amendment concerning marriage prevents gay or lesbian parents from sharing legal custody of children. By noting that the case did not involve any substantial constitutional question, the Court made clear that Ohio's constitutional amendment poses no obstacle to same-sex couples seeking enforceable court orders protecting their children's relationships to both parents.

Fairchild and Leach filed for joint custody of their son in 2001, after they both parented him since his birth in 1996. When the couple split up, Fairchild tried to keep Leach from seeing their son, arguing that Ohio's 2004 antigay constitutional amendment banning marriage between same-sex couples invalidated their agreement and the 2001 court order they had sought together. In June of 2008, the appeals court ruled that the joint custody order was protected from such a tactic, and treated Fairchild's request as improper under the law.

In July, Fairchild asked the Ohio Supreme Court to hear her case, and Lambda Legal urged the Court to refuse. Now, the state Supreme Court joins two prior trial courts and the appeals court in recognizing that the amendment does not affect the custodial rights of non-biological parents. This order from the high court is the final word on the matter.