T.H. v. N.H.

167 N.E.3d 95

[T.H.], Plaintiff-Appellant,

v.[N.H.], Defendant-Appellee.

No. 19AP-747

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on January 28, 2021

On brief: Baker & Wick, LLC, Kelly M. Wick, and Amanda C. Baker, for appellant. Argued: Amanda C. Baker.

On brief: Carpenter Family Law LLC, and Kendra L. Carpenter, for appellee. Argued: Kendra L. Carpenter.

DECISION

DORRIAN, P.J.

{¶ 1} Plaintiff-appellant, T.H., appeals from the October 1, 2019 decision and judgment entry of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch. For the following reasons, we reverse.

I. Facts and Procedural History

{¶ 2} On September 29, 2016, T.H. filed a complaint against defendant-appellee, N.H., for shared custody of three children, J.C.H., J.M.H., and S.G.H. (collectively, "the children").¹ In her complaint, T.H. also sought interim orders concerning the care of the children. The record does not reflect that N.H. filed an answer to T.H.’s September 29, 2016 complaint. On October 16, 2016, the juvenile court appointed Laura M. Peterman as guardian ad litem for the children. On November 22, 2016, T.H. filed a motion for temporary orders allocating rights and responsibilities of the parties for the care of the children.

{¶ 3} On December 19 and 20, 2016, the juvenile court magistrate filed two agreed temporary custody orders. On February 16, 2017, the juvenile court magistrate held a hearing on the motion for temporary orders. On April 24, 2017, the juvenile court magistrate filed a temporary order regarding child support and expenses related to the care of the children. On May 4, 2017, T.H. filed a motion to set aside the magistrate's April 24, 2017 temporary order. On November 27, 2017, the guardian ad litem filed a report.

{¶ 4} On December 4, 2017, the juvenile court began hearings on T.H.’s complaint for custody. T.H. testified she and N.H. began their relationship in 2002. In late 2002, although marriage was not legally recognized for same-sex couples in Ohio, T.H. and N.H. became engaged. In 2003, they jointly decided to have children. Around that time, they purchased a home in Columbus (the "residence"). N.H. legally changed her last name to match T.H.’s in 2012, although she had informally used that last name to refer to herself prior to that date. T.H. and N.H. also used T.H.’s last name to refer to the family as a whole, including the children. T.H. and N.H. officially married on August 10, 2015, less than two months after marriage for same-sex couples was legally recognized nationwide pursuant to the United States Supreme Court's decision in Obergefell v. Hodges , 576 U.S. 644, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015).

{¶ 5} Before J.C.H. and J.M.H. were born, T.H. and N.H. discussed how to handle custody of the children in the event they ever separated. According to T.H., she and N.H. agreed they would split custody of the children "50/50." (Tr. Vol. I at 40.) In order to give effect to this understanding, on July 18, 2005, prior to the birth of J.C.H. and J.M.H., T.H. and N.H. signed a co-parenting agreement, which was notarized and signed by two witnesses.

{¶ 6} In the co-parenting agreement, T.H. and N.H. specified their understanding of their rights and responsibilities during the course of their relationship regarding any future children they would have, as well as their intentions in the event their relationship ended. Throughout the agreement, T.H. and N.H. described any future children as "our child/children." (Pltf.’s Ex. 2 at 1.) T.H. and N.H. agreed to jointly and equally share parental responsibility, providing support and guidance to the children. They agreed to give the children T.H.’s last name and provided that the "child's/children's first and middle name(s) will be determined by our mutual consent." (Pltf.’s Ex. 2 at 2.) In the event of their separation, they agreed to "make a good-faith effort to jointly make all major decisions affecting our child's/children's health and welfare, and all decisions will be based upon the best interests of our child/children." (Pltf.’s Ex. 2 at 3.) Furthermore, they agreed they would "share in our child's/children's upbringing and will share in our child's/children's support, depending on our needs, our child's/children's needs and on our respective abilities to pay." (Pltf.’s Ex. 2 at 3.)

{¶ 7} On July 18, 2005, N.H. executed a durable power of attorney for medical authorization through which she gave T.H. equal power to make medical decisions for the children, consistent with the terms of the co-parenting agreement. On the same date, N.H. executed a last will and testament in which she provided that T.H. would have full custody of the children in the event of N.H.’s death, consistent with the terms of the co-parenting agreement.

{¶ 8} T.H. testified that, following their decision to have children in 2003, she and N.H. jointly decided N.H. would carry the children because T.H. had a history of smoking and was older than N.H. T.H. and N.H. jointly selected a donor whose physical characteristics closely resembled T.H.’s.

{¶ 9} T.H. testified she assisted in the procedure for artificial insemination for the children. T.H. was present for most of the doctor's appointments related to the artificial insemination and was present in the hospital when all the children were born.

{¶ 10} In 2005, N.H. delivered twins, J.C.H. and J.M.H., using her own eggs and the donor sperm she and T.H. selected. According to T.H., N.H. attempted to put T.H.’s name as a parent on J.C.H. and J.M.H.’s birth certificates, but was prevented from doing so because same-sex parents were not legally recognized at that time. While N.H. recovered from giving birth to J.C.H. and J.M.H., T.H. stayed at the hospital for approximately three days, during which time she fed J.C.H. and J.M.H. and changed their diapers. While she was in the hospital, T.H. had a wristband that identified her as J.C.H. and J.M.H.’s parent. In the program for the baptism of J.C.H. and J.M.H., both N.H. and T.H. were listed as parents. Furthermore, in the newspaper announcement for the birth of J.C.H. and J.M.H., both T.H. and N.H. were listed as parents.

{¶ 11} When J.C.H. and J.M.H. were born, N.H. worked as a schoolteacher, requiring her to be out of the house during regular weekday hours. T.H. worked on nights and weekends. T.H. stayed at home with J.C.H. and J.M.H. during the day while N.H. worked.

{¶ 12} In 2010, N.H. gave birth to another child, S.G.H., using the same donor sperm. According to T.H., in 2011, following the birth of S.G.H., N.H. gave T.H. an ultimatum, demanding that T.H. quit her job in order to spend more time with the family. In July 2011, T.H. quit her job to stay at home with the children full-time. Around the same time, T.H. started babysitting additional children in order to make extra money.

{¶ 13} At the hearing, T.H. described in great detail the children's daily activities, including their meals, sports commitments, and relationships with friends. T.H. was generally responsible for taking J.C.H. to sporting events. T.H. had coached J.C.H. and J.M.H.’s soccer team alongside N.H.

{¶ 14} T.H. testified she and N.H. shared responsibility for parenting the children for their entire lives. According to T.H., she spent more parenting time with the children. However, T.H. stated she and N.H. were equal parents to the children. T.H. testified there were never any restrictions on her ability to parent the children, including with regard to education and medical decisions. Even when they disagreed, they were able to jointly reach decisions for the children. In T.H.’s experience, N.H. never indicated she was the sole custodial parent of the children or that she would solely make decisions regarding the children's care because she was the biological parent.

{¶ 15} T.H. testified the children's school recognized both T.H. and N.H. as the children's parents. However, T.H. was listed as the main contact for the children at their school. When she and N.H. interacted with the children's teachers and school administrators, both T.H. and N.H. were equally recognized as the children's mothers, and there was no distinction in how they were treated. According to T.H., N.H. never indicated to anyone at the children's school that she was the birth mother or sole custodian of the children.

{¶ 16} T.H. and N.H. would both try to be present for the children's medical appointments, although there were some instances where one or the other would not be available. T.H. was listed on all of the children's emergency contact forms as a parent.

{¶ 17} T.H. believed the children were bonded with both her and N.H. The children had a good relationship with one another. The children wrote both T.H. and N.H. cards for Mother's Day. The children call T.H. "Mutti," which is a German word for "mother." (Tr. Vol. I at 74.) The children called T.H.’s parents "grandma" and "grandpa," and called N.H.’s parents "nana" and "papa." (Tr. Vol. I at 127-28.)

{¶ 18} According to T.H., in May 2016, when T.H. returned home to the residence from one of the children's sporting events in Cincinnati, N.H. informed T.H. that she was leaving the house for the next five days. When T.H. entered the house with the children, she discovered N.H. had already moved some of her belongings out of the house. Prior to that point, T.H. had been completely unaware that N.H. planned on moving. For approximately three months after she first moved out, N.H. would leave the house for two to three days at a time, occasionally returning after work to sleep at the house. During that time, N.H. left the children with T.H., who provided for them in N.H.’s absence.

{¶ 19} T.H. testified that, after the three months of intermittently returning to the residence, N.H. moved out of the house and into her own apartment in Columbus. Since that time, T.H. and N.H. split custody of the children on a rotating schedule of two days with one...