This past August, Justice Cook wrote a dissent (joined only by Justice Lundberg Stratton) from the Court’s ruling that a lesbian couple, together for 15 years, was entitled under Ohio statutory law to have the juvenile court determine whether a “shared custody” arrangement would be in the best interests of their five children. See In re Bonfield, 773 N.E.2d 507 (Ohio 2002). One of the women was the legally recognized parent of all five children (having given birth to three of them and adopted the two others), but the other was their “primary caregiver.” 773 N.E.2d at 509. Concerned about the harm that could be caused to the children by the children’s lack of a legally recognized relationship with one of their parents-in-fact, the women had filed a petition in Ohio juvenile court seeking an “allocation of parental rights and responsibilities” under state law. Id.
A licensed clinical psychologist confirmed the parental relationship that both women had with the children. According to the psychologist’s testimony, the two women “operate jointly in caring for the children, and have created a loving and committed home. . . [B]oth [women] function as parents, and . . . the children are bonded to each of them . . . [S]hould the children be separated from . . . their primary caregiver, it could be devastating to them.” 773 N.E.2d at 509. Nonetheless, the court ruled that the primary caregiver was not a “parent” under Ohio law and that it therefore lacked jurisdiction to issue the petition. The court of appeals affirmed. The state Supreme Court, however, while agreeing that the woman was not a “parent” under Ohio statutory law, held that applicable law permitted the juvenile court to determine whether a shared custody agreement between the two women would be in the best interests of the children, and sent the case back to the juvenile court to make that determination. Justice Cook dissented, and would have interpreted the law in a manner that precluded any such custodial arrangement, to the potential detriment of the couple’s five children.
Justice Pfeifer, in a separate opinion concurring in the Court’s judgment, and in sharp contrast to Justice Cook’s opinion, noted that Ohio statutory law permitted the courts to recognize the reality of the children’s lives: “Terms of art change. What used to be known as joint custody is now known as shared parenting. . . The General Assembly’s shift in terminology from joint custody to shared parenting was never meant to make custody of children exclusive to what are considered traditional parents. . .Ohio’s custody laws allow for the legal recognition of an adult’s commitment to a child, and that adult’s right and responsibility to continue that commitment. What we call that adult is not important. What her children call her is.” 773 N.E.2d at 515 (emphasis added).