Same-Sex Relationships and Ohio Custody Complications - Jonathan M. Stanley

Following the U.S. Supreme Court ruling in Obergefell v. Hodges, Ohio began issuing marriage licenses to same-sex couples in 2015. The Court’s ruling represented a step forward for same-sex couples seeking equal recognition under Ohio law. However, Ohio’s custody laws still lag behind when it comes to the addressing child-related issues for homosexual couples.

Outdated language in Ohio statutes can lead to complications for same-sex spouses who have been raising a child together and now wish to get divorced. Under Ohio law, in heterosexual divorces, any children born during the term of the marriage are presumed to be children of the husband and wife. This is referred to as a “Presumption of Paternity”. States such as New York have begun to replace the “Presumption of Paternity” with a more inclusive “Presumption of Legitimacy”. Under a “Presumption of Legitimacy”, when a child is born during a marriage, both spouses are presumed to have parenting rights to the child regardless of whether they are genetically related to the child. Ohio has yet to adopt such a standard and this can lead to one spouse being left out of a child’s life.

Ohio Divorce Courts have only recently begun to tackle custody related issues in cases where only one (or neither) of the spouses is genetically related to the children. The Court’s unfamiliarity with the issues involved can lead to stress and uncertainty for divorcing same-sex couples.

Proper planning is the best way to avoid leaving the future of your children up to a Judge or Magistrate. The most secure way of establishing parental rights to a child is through the process of adoption. Adoption can allow the spouse who is not genetically related to the children to avoid custody battles as part of a later divorce. Adoptions create legally enforceable rights for the adopting parent. Adoptions also have the added benefit of having been recognized in Ohio Courts for decades. Courts are familiar with the adoption process and the rights afforded to adopting parents. This helps to remove uncertainty from divorce proceedings.

Couple who are uninterested in adoption are also able to prevent future fights through the use of carefully worded prenuptial agreements which lay out the couple’s plan for future parenting of the child. Whether you are interested in exploring adoptions or prenuptial agreements, a discussion with an experienced domestic relations attorney can help you to understand your options and choose your path forward. Please contact our office if you would like to set up a free consultation.

- Jonathan M. Stanley, Esq.