COLUMBUS, Ohio (WCMH) — The Ohio Supreme Court heard arguments this week in a case deciding how parentage laws apply to same-sex couples who raised children but separated before same-sex marriage became legal.
The Ohio couple in the case, Priya Shahani and Carmen Edmonds, were together from 2003 to 2015 and had three children together through artificial insemination. Though Shahani was the biological mother, the two gave each child the last name of “Edmonds-Shahani” and completed legal documents recognizing the other as an equal co-parent.
Shahani and Edmonds never legally married, as their relationship deteriorated in 2015 before the U.S. Supreme Court ruled that same-sex marriage bans, like prohibitions still on the books in Ohio, are unconstitutional. In the breakup, the couple entered into a formal agreement that divided their property and set a parenting schedule for their children.
However, Shahani later removed “Edmonds” from the children’s last name and filed legal motions to terminate their agreement. Edmonds then filed a petition in 2017 “to establish her parental rights,” but the Hamilton County Juvenile Court held that a same-sex partner does not fall within the definition of a “parent” under Ohio law. This is because Edmonds was neither biologically related to the children nor married to their birthmother.
A trial court ruled against terminating the agreement and ordered that Edmonds could have “companionship time” with the children but did not grant her a “parentage” request. Both Shahani and Edmonds appealed to the First District Appellate Court, which decided that the trial court needed to hold a hearing to determine if the couple “would have been married” if Ohio had already allowed same-sex marriage.
Appealing to the Ohio Supreme Court, Shahani said a state court “does not have the authority to disregard Ohio’s statute banning common-law marriage and order a person into an unlicensed and manufactured marriage.”
Paul Kerridge, Shahani’s lawyer, said before the state’s Supreme Court on Tuesday that Shahani doesn’t believe in the institution of marriage and never planned to marry Edmonds. The lawyer noted the couple didn’t attempt to get a marriage license and that Shahani also isn’t planning to marry her current partner.
“What we’re kind of getting is one person saying, ‘Well, I want a marriage to be retroactively created,’ and another person saying, ‘Well, I don’t want a marriage to be retroactively created because I never wanted to enter into one in the first place,'” Kerridge said.
However, Jonathan Hilton, Edmonds’ lawyer, said there is proof the couple planned to marry. Hilton claimed that Edmonds is only allowed to see the children about 30% of the time, struggles to obtain their school and medical records, and that she didn’t receive notice when Shahani removed “Edmonds” from the children’s last name.
“You have children who have hyphenated names, their very identity being changed, and my client has no more rights in that situation than a babysitter,” Hilton said, also noting that Edmonds would have further restricted rights if Shahani’s partner wanted to adopt the children.
Justices discussed back and forth whether Obergefell v. Hodges, the 2015 case legalizing same-sex marriage, applied to a couple that was never married. Justice Patrick DeWine argued to Hilton that it seemed like he was “advocating for a really impossible standard.”
“You have one parent who says, ‘I wouldn’t have got married.’ You’ve got one parent who says, ‘I would’ve gotten married.’ How can a court really sort that out?” DeWine said. “Because no one actually knows what someone would have done, and if they would have been married, the rights would have been different.”