Case Note: Res Adjudicata Barred Later Attack of Same-Sex Co-parenting Agreement

In Morris v. Hawk, No. 2008CA0009, 2009 WL 350915 (Ohio Ct. App. Feb. 10, 2009) the Ohio Court of Appeals of Richmond County considered a child custody case where a same-sex custodian couple later separated. One of the women in the relationship gave birth to their son, but soon there after both had sought and obtained joint custody. At both women's consent and request, custody was granted pursuant to an "entry" that was accepted by an Ohio court. In part, it stated that both parties agreed to share parental responsibilities.

After separation, the birth mother requested a declaratory judgment that the custodian entry was unenforceable, which the trial court granted. The Appeals Court remanded the trial court's determination and reasoned that the doctrine of res adjudicata applied. Under Ohio law, the doctrine provides that “[a] valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.” (internal quotations omitted).

In a concurring opinion, Judge Edwards would have remanded on different grounds, which would be "dismiss the motion for declaratory judgment as a procedural nullity."