Here's some excerpts from the 9th Ohio District Court of Appeals ruling:
Appellee James O. Flynn (“Flynn”), Appellee/Cross-Appellant Jennifer Rice (“Rice”), and Appellant/Cross-Appellee Danielle Bimber (“Bimber”) entered into a surrogacy contract whereby Bimber would serve as a surrogate mother for Flynn and Rice’s children. Flynn, a resident of Ohio, was not involved in a romantic relationship with Rice, a resident of Texas, or Bimber, a resident of Pennsylvania; both women were contacted through a surrogacy agency and compensated by Flynn. Sperm was collected from Flynn and used to fertilize eggs collected from Rice, which created embryos that were inseminated in Bimber at University Hospital in Cleveland, Ohio. As a result of the in vitro fertilization, Bimber became pregnant and gave birth to triplets. The parentage, possession, and custody of the triplets have been contested since their births.
In her sole cross-assignment of error, Rice has argued that the trial court erred when it ruled that it lacked jurisdiction to review the Bimbers’ rights with regard to the triplets. Specifically, Rice has argued that the trial court was not bound to give full faith and credit to the Pennsylvania court’s decision because it did not comply with the jurisdictional requirements of giving notice and an opportunity to be heard. We agree.
The decision to give full faith and credit to another state’s court decisions is a legal question. The statute mandates that “[b]efore a child custody or visitation determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.” 28 U.S.C. 1738A(e). Contestant “means a person, including a parent or grandparent, who claims a right to custody or visitation of a child [.]” 28 U.S.C. 1738A (b)(2).
It is undisputed that at the time of the April 2, 2004 Pennsylvania decision that found Bimber the legal mother of the triplets, Rice’s parental rights as the genetic/biological mother had not been previously terminated. Accordingly, pursuant to federal and Pennsylvania law, Rice was entitled to notice and an opportunity to be heard on the issue before the Pennsylvania court. Further, under 28 U.S.C. 1738A, full faith and credit is due only if the statute is followed.
We find that as the genetic/biological mother, in a proceeding where the surrogacy contract was found void, Rice should have been notified and provided an opportunity to be heard by the Pennsylvania court. After finding the surrogacy contract void, the Pennsylvania court could not ignore the rights of the Rice. It was undisputed that Bimber did not have any genetic connection to the triplets. It appears the Pennsylvania court’s opinion was inconsistent; the court refused to honor the surrogacy contract, but did not allow Rice any rights because she was just the egg donor and was not “consider[ed] *** to be a party” to the matter determining the parentage and parenting of the triplets. We find that the Pennsylvania court’s failure to properly notify Rice and allow her to participate in the proceedings allows Ohio courts to decline to give full faith and credit to the April 2, 2004 Pennsylvania journal entry. As such, the Ohio courts are not bound by the April 2, 2004 Pennsylvania decision.
[T]he trial court properly found Rice and Flynn to be the genetic parents of the triplets, but it erred in not completing the second portion of the Belsito test. The trial court should conduct a hearing to determine if Rice and/or Flynn waived or relinquished their parental rights. Bimbers’ second assignment of error has merit.
The decision of the trial court is reversed in part, affirmed in part, and remanded for proceedings consistent with this opinion.
Gotta love family law.
No comments:
Post a Comment