The United States Supreme Court’s 2015 decision in Obergefell v. Hodges and its 2017 decision in Pavan v. Smith required states to recognize samesex marriages and to afford those marriages the same benefits and privileges granted to oppositesex marriages. In the decade since Obergefell, Ohio courts have continued to grapple with how those rulings apply in domestic relations cases, including disputes involving parenting, custody, and parental rights.
Those questions have taken on renewed importance for samesex parents in Ohio, particularly where the parties were not married at the time of a child’s birth.
Ohio’s Parentage Law and Unmarried Parents
Ohio family law and domestic relations practice encompasses more than marital relationships alone. Parenting and custody disputes frequently arise between parents who were never married.
Under Ohio law, an unmarried mother is generally the child’s legal custodian and guardian absent a court order. A biological father is not presumed to be the legal father unless the parties were married at the time of birth; otherwise, he must establish paternity through an acknowledgment or a court proceeding. These statutory provisions are written with oppositesex couples in mind, raising an obvious question: how are samesex couples treated?
The Ohio Supreme Court’s Decision in In re L.E.S., E.S., and N.S.
Ohio law does provide one clear answer in limited circumstances. When a married samesex couple conceives a child through artificial insemination, the nonbiological spouse may be recognized as a legal parent under the statute.
However, the Ohio Supreme Court’s April 2026 decision in In re L.E.S., E.S., and N.S. complicates matters for unmarried samesex couples. In that case, the Court held that the statutory parentage protections do not apply when the parties were not married at the time of the child’s birth – even where the couple was in a longterm, committed relationship that predated Obergefell.
The Court’s reasoning treated preObergefell relationships as more akin to nonrecognized commonlaw marriages than to actual marriages, emphasizing that the parties “could have chosen” to travel to another state to marry. Setting aside the Court’s somewhat dismissive attitude towards the practical problems such couples faced before Obergefell, the practical consequence is that some longestablished families are left without a clear statutory mechanism for resolving custody or parenting disputes.
What This Means for Unmarried SameSex Parents in Ohio?
Unmarried oppositesex parents have a defined statutory path to seek custody and parenting orders. Following In re L.E.S., E.S., and N.S., unmarried samesex parents in Ohio may not enjoy the same clarity or access—at least until the legislature amends the statute.
One potential safeguard is a custody or parenting agreement executed near the time of the child’s birth that clearly establishes parental roles, rights, and responsibilities. Such an agreement played a meaningful role in the lower court’s analysis in In re L.E.S., E.S., and N.S. and can offer courts guidance when statutory protections fall short.
Protecting Your Parental Rights
Establishing and protecting parental rights is critical, whether parents are married or unmarried. For samesex couples in Ohio, proactive planning can make a substantial difference if a dispute ever arises.If you have questions about custody, parental rights, or how recent Ohio Supreme Court decisions may affect your family, we invite you to contact our office to schedule a consultation.
