We are pleased to announce that Durst Kerridge has secured another appellate victory. In In re L.E.S., Slip Opinion No. 2026-Ohio-1449, the Supreme Court of Ohio reversed the judgment of Ohio’s First District Court of Appeals and remanded the case for further proceedings.
This is our fourth significant appellate victory in the past two years. In each of those cases, we represented the appellant — the party challenging the judgment below — and in three of the four, our firm was specially retained on appeal.
Paul R. Kerridge was lead appellate counsel and argued the case before the Supreme Court of Ohio. Paul previously served as a law clerk to Justice Patrick F. Fischer of the Supreme Court of Ohio, so arguing this appeal before the Court was a full-circle moment. Paul now devotes the majority of his practice to appellate work, including Ohio Supreme Court appeals, Sixth Circuit appeals, and appeals before Ohio’s Courts of Appeals.
Our co-counsel was Diana M. Link of Link Nestheide Family Law, who represented our client at the trial court level and worked alongside us throughout the appeal. Diana is, in our view, one of the very best domestic relations attorneys in Ohio. We don’t handle family law matters (except for family law appeals), and it is a real honor that Diana and the client chose us as appellate counsel.
While this point may come across as self-serving, our experience really does bear it out: clients are well served by bringing in dedicated appellate counsel rather than having trial counsel handle the appeal.
Background of the Case
In re L.E.S. arose out of a relationship between two women, P.S. and C.E., that began in 2003 and ended in early 2015 — shortly before the United States Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. 644 (2015), recognized a constitutional right to same-sex marriage. During the relationship, P.S. gave birth to three children — first a daughter, then twins — each conceived through artificial insemination using an anonymous donor. The parties never married, in Ohio or in any other state.
After the relationship ended, litigation began over custody and visitation. C.E. ultimately filed a motion in the Hamilton County Juvenile Court seeking to be recognized as the legal parent of all three children. Our client, P.S., is the children’s biological mother and has at all times been their sole legal parent under Ohio law.
The Juvenile Court Decision
After multiple days of trial, a Magistrate concluded that no provision of Ohio law allowed C.E. to be recognized as a legal parent of any of the three children. The Judge overruled C.E.’s objections to the Magistrate’s decision on that issue and agreed: nothing in Ohio’s parentage statutes provided a pathway for an unmarried, non-biological partner to be declared a legal parent. The trial court did, however, order shared custody of the older child (under a written agreement) and shared custody of the twins (based on the parties’ words and conduct), and awarded C.E. companionship time (i.e., visitation).
Both parties appealed. Our client raised a series of assignments of error directed at the trial court’s shared-custody and visitation rulings. C.E. cross-appealed and pressed her argument that, post-Obergefell, Ohio’s parentage statutes had to be read to allow her to be declared a legal parent.
The First District’s “Would Have Been Married” Test
On appeal to Ohio’s First District Court of Appeals, C.E. introduced a theory she had not developed in the trial court. She pointed to R.C. 3111.95(A) — Ohio’s non-spousal artificial insemination statute — which provides that when a married woman conceives a child through non-spousal artificial insemination with her husband’s consent, the husband is treated in law as the natural father of the child. C.E. argued that Obergefell and Pavan v. Smith, 582 U.S. 563 (2017), required the statute to be applied to her even though she and P.S. had never married.
The First District agreed — over our vehement objection that this issue had not been preserved for appeal — and went further. The Court held that the trial court should have considered whether the parties “would have been married at the time the children were born” but for Ohio’s then-existing ban on same-sex marriage, and, if so, applied R.C. 3111.95(A) retroactively to recognize C.E. as a legal parent. The Court remanded the case to the juvenile court to conduct a trial to make that “would have been married” determination, and declined to address P.S.’s assignments of error on the ground that the remand could moot them.
Needless to say, this was a groundbreaking decision.
Petitioning the Supreme Court of Ohio
We then filed a Notice of Appeal and Memorandum in Support of Jurisdiction in the Ohio Supreme Court, and the Court accepted the case.
The case was thoroughly briefed on both sides. In total, the parties and amici submitted hundreds of pages of briefing, including amicus curiae briefs filed by the American Civil Liberties Union, the National Association of Social Workers, and the Nathaniel R. Jones Center for Race, Gender, and Social Justice.
Our proposition of law, as accepted by the Court, framed the issue this way:
Neither the state nor federal Constitution empower a state court to ignore state statutes barring common-law marriage, manufacture an unlicensed marriage into existence, and hinder a parent’s fundamental rights based on that manufactured unlicensed marriage.
In other words: the First District’s “would have been married” test was incompatible with the plain text of Ohio’s parentage scheme, with Ohio’s statutory abolition of common-law marriage, and with the limits of what Obergefell and Pavan actually require.
The Supreme Court of Ohio’s Decision
The Supreme Court of Ohio agreed with our client and reversed. Writing for the Court, Justice DeWine explained that, by its plain terms, R.C. 3111.95(A) applies only to married couples, and nothing in Obergefell or Pavan empowers an Ohio court to rewrite the statute to apply retroactively to couples who chose not to marry. As the Court put it, Obergefell and Pavan together stand for the proposition that states must give same-sex couples equal access to marriage and, once married, the same “constellation of benefits” provided to opposite-sex married couples — they do not require courts to manufacture a marriage that the parties never entered.
The Court also addressed, at length, the practical problems with the First District’s test. Asking a trial court to determine, years after the fact, whether two people “would have been married” had the law been different requires the court to guess at a counterfactual that no record can confirm. Engaged couples sometimes do not get married. Couples who move in together do not always get engaged. The Court observed that the inquiry comes uncomfortably close to resurrecting the old test for common-law marriage — a doctrine the Ohio General Assembly expressly abolished in 1991. See R.C. 3105.12(B)(1).
What This Means for Our Client and Beyond
For our client, the ruling restores the legal status quo: she is, and remains, the children’s sole legal parent under Ohio law. The case now returns to the First District to take up the assignments of error that were previously not ruled upon.
For Ohio law more broadly, the decision draws a clear line. Same-sex couples who were married — whether in Ohio or in another jurisdiction — are entitled to the full constellation of marital benefits, including under Ohio’s parentage statutes. But the courts are not empowered to construct a retroactive marriage where none ever existed.
About Durst Kerridge
Durst Kerridge has a proven track record of winning significant appeals. Our Appellate Practice is led by Paul R. Kerridge, who previously served as a Law Clerk to Justice Patrick F. Fischer of the Supreme Court of Ohio and Judge Chad A. Readler of the U.S. Court of Appeals for the Sixth Circuit.
We have achieved appellate victory at the highest levels, including wins that reversed multimillion-dollar judgments and secured favorable outcomes for our clients in complex commercial, constitutional, and civil litigation matters. We regularly serve as appellate local counsel to trial firms that want dedicated appellate counsel handling the appeal.
To contact Durst Kerridge, call (513) 621-4999 or reach out to Alex J. Durst or Paul R. Kerridge directly.
