In Re Bonfield: Are We There Yet? The Ohio Supreme Courts Journey Establishing Adoption and Custody Laws in Ohio

• Author: Elizabeth A. Embrey
• Pages: 207-235

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I Introduction

Until recent decades, only married couples sought adoptions.¹ Today, our society has drastically changed. Now single individuals regularly petition for adoption, and most state statutes expressly provide for adoption by singles.² In addition, with the rise in the social acceptance of homosexuality,³ the past few decades have seen a burst of adoption petitions by homosexual couples.⁴ Since homosexual adoptions are often denied in many states,⁵ cohabiting parties have begun to bring creative suits before the courts in an effort to gain legal rights to one another's children. In In re Bonfield, the Ohio Supreme Court recently addressed a petition for allocation of parental rights filed by the lesbian partner of a biological mother.⁶ Teri Bonfield and her same-sex partner originally filed a petition for allocation of parental rights and responsibilities in the Juvenile Division of the Hamilton County Court of Common Pleas and the issue reached the Franklin County Court of Common Pleas in August, 2002.⁷ In this landmark 6-1 decision, the Ohio Supreme Court denied the petition for allocation of parental rights, refusing to recognize that the same-sex partner was a "parent" to the couple's children although shePage 208 played an active parenting role.⁸ However, the court created an avenue around current adoption laws by holding that the juvenile court ultimately had jurisdiction to determine whether shared custody should be granted to same-sex couples.⁹

At first blush, the Bonfield decision seems to indicate that the Ohio Supreme Court devotes itself to strict construction of the language of the Ohio Revised Code. In an area of law where other state supreme courts have taken broader interpretations, the Ohio Supreme Court takes the traditional approach in denying the allocation of parental rights to the homosexual couple.¹⁰ The court defers decisions about parental roles to the state legislature.¹¹ Thus, the Bonfield decision curtails broad interpretations of the notions of "family" and "parent" in Ohio family law.

However, a closer evaluation of the Bonfield decision reveals that the Ohio Supreme Court merely purports loyalty to constitutionally-mandated responsibilities of interpretation of the law in order to render an outcome-determinative decision. Throughout the opinion, the majority masquerades as a court paying tribute to the textualist approach of statutory interpretation.¹² Yet, upon further analysis by the dissent, and in later developments upon reconsideration of the case, the Bonfield decision shows that all along, the Ohio Supreme Court desired to give the petitioners a partial win, ultimately opening the door for joint custody by this homosexual couple.¹³ This decision created a multitude of problems in the area of family law. The court created a mechanism through which legal custodian rights could potentially be divided, but it gave no guidance on how this mechanism will play out in juvenile courts around the state. Ultimately, although this decision was, as a policy matter, quite humanitarian, it was achieved through improper means.

II Background

A Textualism

The court's power of statutory interpretation causes constant conflict between the legislature and the judiciary, particularly in the area of adoption law. Across the nation, while some state statutes are clearly written, others leave ambiguities for the courts to decide. LegislatorsPage 209 cannot ensure that every state statute is clearly drafted.¹⁴ Since compromise is an integral part of the state legislative process, oftentimes statutes are intentionally vague in order to appeal to varying viewpoints.¹⁵In the face of this problem in the legislative branch, judicial activism on the part of the courts is also an ever-present concern.¹⁶ Specifically, state legislators and other members of the legal profession fear that judges will "ignore[] the law in favor of a politically correct result."¹⁷ However, not all judges take liberties in statutory interpretation. On the other end of the spectrum lies the strict textualist approach to statutory interpretation where judges believe "the actual text of the statute may be the most reliable and precise evidence of legislative intent and purpose."¹⁸ A general understanding of the textualist approach will assist the reader's understanding of the Bonfield decision, since this is the interpretive style purportedly used by the majority.

The textualist approach looks to the actual language of the statute as the basis for statutory interpretation.¹⁹ "The simplest version of textualism is enforcement of the 'plain meaning' of the statutory provision: that is, given the ordinary meanings of words and accepted precepts of grammar and syntax, what does the provision signify to the reasonable person?"²⁰This interpretive method is not flawless, however, because judges are influenced by context and their own interpretations and perceptions of the world.²¹ Nevertheless, courts implementing the textualist approach tend to rely upon the actual language of the statute when rendering decisions.²² In practice, this means that outside sources such as text in other statutes, legislative histories, and the like are not consulted.

B Adoption and Custody Laws in Ohio

In order to fully analyze the problems the Ohio Supreme Court created in the Bonfield decision by determining that the juvenile court could grant joint custody (in essence splitting the biological mother's rights), it isPage 210 necessary to gain a basic understanding of custody, and of who is a "parent" under Ohio law. The Ohio Revised Code provides general guidelines for these concepts, but it leaves unanswered many issues surrounding parental rights.²³ The following section examines the structure of Ohio's domestic and juvenile courts as well as the rights and responsibilities that these courts afford to parents and custodians.

1. The Function of Ohio's Domestic Relations and Juvenile Courts

The structure of domestic relations and juvenile courts varies from state to state. In most counties in Ohio, the juvenile court operates within the domestic relations division of the court of common pleas.²⁴ Usually, however, the two courts function as separate entities and hear entirely different cases.²⁵ Divorce petitions, as well as petitions for reallocation of parental rights and responsibilities, are heard in the domestic relations court.²⁶ This court determines which parent will be designated as the residential parent, the parent with whom the children of the marriage will live.²⁷ Shared custody agreements, which establish visitation schedules, are also determined in this court.²⁸ Ohio Revised Code section 3109.04 provides for the allocation of parental rights and responsibilities, stating:

In any divorce, legal separation, or annulment proceeding and in any proceeding pertaining to the allocation of parental rights and responsibilities for the care of a child, upon hearing the testimony of either or both parents and considering any mediation report . . . , the court shall allocate the parental rights and responsibilities for the care of the minor children of the marriage.²⁹

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Clearly, allocation of parental rights and responsibilities is only available to legally recognized parents, and allocation only results after a divorce, legal separation, or annulment.

Since only married couples or biological parents will come before a judge in domestic relations court in Ohio, the juvenile court is the appropriate place for non-parents to raise issues pertaining to the health, welfare, and custody of children.³⁰ The juvenile court can issue temporary or permanent custody to parents, non-parents, grandparents, or an agency.³¹The Ohio Revised Code generally limits the consideration of issues of custody/parenting of children to (1) circumstances of abuse, dependency, or neglect and (2) circumstances surrounding changes in the legal relationship of parents.³² Therefore, when the child at issue is living with a parent, and a domestic relations court has already issued a decree allocating parental rights and responsibilities, the juvenile court only has jurisdiction to determine custody of the children if the children are abused, neglected, or dependent.³³

2. Various Aspects of Custody

In Ohio, temporary custody merely places the child under the care of another individual often in the hope that the parent will become fit and welcome the child back into the home.³⁴ Ohio defines temporary custody as "legal custody of a child who is removed from the child's home, which custody may be terminated at any time at the discretion of the court or, if the legal custody is granted in an agreement for temporary custody, by the person who executed the agreement."³⁵ Temporary custody does not deprive the biological parent of any rights, other than the right to have the child living in the home during a...