In re L.E.S.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re L.E.S., Slip Opinion No. 2026-Ohio-1449.]




                                         NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.




                          SLIP OPINION NO. 2026-OHIO-1449
                             IN RE L.E.S., E.S., AND N.S.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as In re L.E.S., Slip Opinion No. 2026-Ohio-1449.]
Domestic relations—Parentage—R.C. 3111.95(A), which provides an avenue for
        the consenting spouse of a woman who conceives a child through artificial
        insemination to be recognized as the natural parent of the child, does not
        apply to same-sex couples who were not married at time of insemination—
        Court of appeals’ judgment reversed and cause remanded.
      (No. 2024-0303—Submitted April 22, 2025—Decided April 28, 2026.)
              APPEAL from the Court of Appeals for Hamilton County,
                   Nos. C-220430 and C-220436, 2024-Ohio-165.
                                  __________________
        DEWINE, J., authored the opinion of the court, which KENNEDY, C.J., and
FISCHER, DETERS, HAWKINS, and SHANAHAN, JJ., joined. BRUNNER, J., concurred
in judgment only, with an opinion.
                              SUPREME COURT OF OHIO




        DEWINE, J.
        {¶ 1} This case involves a dispute about parenting rights. The litigants, P.S.
and C.E., are two women whose relationship ended before the United States
Supreme Court recognized a constitutional right to same-sex marriage in Obergefell
v. Hodges, 576 U.S. 644 (2015).
        {¶ 2} While the women were still in a relationship, P.S., gave birth to three
children through artificial insemination. After the relationship ended, her former
partner, C.E., sought to be legally recognized as a parent of the children. Because
the couple was never married, nothing in Ohio’s statutory scheme provided an
avenue for C.E. to be recognized as a parent of the children. Nonetheless, the First
District Court of Appeals concluded that the appropriate course was to remand the
case to the trial court to determine if the couple “would have been married” if same-
sex marriage had been legal in Ohio at the time of their relationship, 2024-Ohio-
165, ¶ 35 (1st Dist.); see also id. at ¶ 36.
        {¶ 3} In doing so, the court of appeals relied on R.C. 3111.95(A) (“the non-
spousal artificial insemination statute”), which allows the consenting spouse of a
woman who conceives through artificial insemination using donor sperm to be
recognized as the natural parent of the child. Although the statute does not apply
to couples who are unmarried, the First District concluded that under Obergefell
and Pavan v. Smith, 582 U.S. 563 (2017), the statute should be judicially modified
to apply retroactively to an unmarried same-sex partner if the couple would have
been married but for Ohio’s ban on same-sex marriage. See 2024-Ohio-165 at ¶ 34
(1st Dist.)
        {¶ 4} The question before this court is whether the First District erred in
empowering the trial court to retroactively create a marriage under this “would have
been married” standard. We hold that it did. By its plain terms, the non-spousal
artificial insemination statute does not apply to an unmarried couple. And nothing


                                               2
                                January Term, 2026




in United States Supreme Court precedent provided a basis for the First District to
disregard the plain terms of the Ohio statute. Because the First District disregarded
the statutory scheme, we reverse its judgment.
                                I. BACKGROUND
                       A. A Relationship and a Breakup
       {¶ 5} P.S. and C.E. began a romantic relationship in 2003. Despite moving
in together and exchanging silver and gold bracelets to symbolize an engagement,
the couple never married. Same-sex marriage was not recognized in Ohio but was
legal in a number of other states during the time they were together.
       {¶ 6} Nearly a decade into their relationship, P.S. become pregnant through
artificial insemination. A daughter was born in 2012, and the couple executed a
shared-custody agreement for her. In 2014, P.S. again conceived through artificial
insemination and gave birth to twins. Unlike the situation with the older child, the
couple did not execute a shared-custody agreement for the twins.
       {¶ 7} The couple separated in January 2015, shortly before the United
States Supreme Court’s decision in Obergefell, 576 U.S. 644, which held state
prohibitions on same-sex marriage to be unconstitutional. After the breakup, the
children lived primarily with P.S. but also visited at times with C.E.
                               B. Litigation Ensues
       {¶ 8} In 2018, P.S. filed a motion to hold C.E. in contempt for failing to
abide by the older child’s shared-custody agreement, and a motion to terminate or
modify the shared-custody agreement based on changed circumstances.             C.E.
countered by filing a complaint seeking parentage and custody over all three
children or at least shared custody or visitation rights with the twins. A magistrate
denied C.E.’s request to be named a legal parent of all three children and for shared
custody of the twins. The magistrate also denied P.S.’s request to terminate the




                                          3
                             SUPREME COURT OF OHIO




shared-custody agreement for the older child. The magistrate did, however, award
C.E. companionship time with the twins.
       {¶ 9} Both parties filed objections to the magistrate’s decision. C.E. argued
that the Supreme Court’s decision in Obergefell required Ohio’s existing parentage
statutes to be applied to same-sex couples. She also asserted that Ohio’s paternity
provisions “post-Obergefell” impermissibly focus on “‘men’” and “‘DNA,’”
“ignoring artificial reproductive technology and family formation for same-sex
couples.”
       {¶ 10} The trial court affirmed most of the magistrate’s decision.          It
concluded that no statute or caselaw granted it authority to recognize as a child’s
legal parent a same-sex partner of that child’s biological parent. Nevertheless, the
court found that the parties had entered into a shared-parenting agreement for all
three children. In addition to the written custody agreement for the older child, the
court concluded that the parties had created a shared-custody agreement “through
their words and conduct” for the twins. In re: E.C.E.S., Hamilton J.C. No.
F/12/000728 Z (Aug. 5, 2022). The court upheld the companionship-time schedule
issued by the magistrate as being in the best interests of the children.
       {¶ 11} Both parties appealed to the First District. On appeal, C.E. presented
a new elaboration of her argument for parentage rights. She cited the non-spousal
artificial insemination statute, which provides an avenue for a husband to be
recognized as the biological father of children born to his wife by artificial
insemination and donor sperm. C.E. argued that the United States Supreme Court’s
decisions in Obergefell, 576 U.S. 644, and Pavan, 582 U.S. 563, require the statute
to be applied gender neutrally so as to include same-sex couples. P.S. argued in
her reply brief to the First District that the court should not consider C.E.’s
argument about the non-spousal artificial insemination statute, because C.E. had
not presented that argument in the trial court.



                                          4
                                       January Term, 2026




         {¶ 12} P.S. appealed on the grounds that the trial court had acted beyond its
judicial authority in relying on Obergefell to abrogate the existing custody and
parenting framework. She claimed the court also erred by not terminating the
custody agreement for the older child and by awarding C.E. companionship time
with the twins. Finally, P.S. argued the court erred in its determination that a
shared-custody agreement existed for the twins.
         {¶ 13} The First District proceeded to the merits of the parentage issue
without addressing P.S.’s contention that C.E. had failed to sufficiently develop her
argument about the non-spousal artificial insemination statute in the trial court.1 It
held that the trial court “should have first determined whether the parties would
have been married at the time of the child(ren)’s conception—but for Ohio’s
unconstitutional ban on same-sex marriage—before finding that C.E. could not be
recognized as a legal parent of the child(ren) under Ohio law.” (Parentheses in
original.) 2024-Ohio-165 at ¶ 4 (1st Dist.). The court of appeals found that if the
parties would have been married, Obergefell would require the non-spousal
artificial insemination statute to be interpreted gender-neutrally and applied to C.E.
Id. at ¶ 22-23, 34. The First District remanded the case to the trial court to
determine if a marriage “would have” occurred. Id. at ¶ 35-36. The court did not
address P.S.’s assignments of error, concluding that the trial court’s determination
of whether the parties would have been married could render the custody and
visitation issues moot. Id. at ¶ 4.
         {¶ 14} P.S. appealed to this court, raising a single proposition of law, which
we accepted:



1. The opinion concurring in judgment only would reverse the First District on the basis that the
court of appeals erred by considering C.E.’s underdeveloped argument about the non-spousal
artificial insemination statute. But P.S. forfeited any argument in that regard by failing to raise it in
the proposition of law and briefing that she presented to this court. See State v. Townsend, 2020-
Ohio-5586, ¶ 12, fn.1.




                                                   5
                            SUPREME COURT OF OHIO




               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.


See 2024-Ohio-1832.
                                 II. ANALYSIS
       {¶ 15} Ohio has established an elaborate statutory scheme for determining
parentage. We begin there. We then turn to the question whether the First District
was correct in concluding that United States Supreme Court caselaw requires a
rewrite of that statutory scheme. Finally, we turn to P.S.’s argument that the First
District improperly ignored Ohio’s statutory rejection of common-law marriage.
A. C.E. Is Not Entitled to Relief Under the Plain Terms of Ohio’s Parentage
                                     Statutes
       {¶ 16} By Ohio statute, a woman may establish parentage through proof of
having given birth. R.C. 3111.02(A). A man is presumed to be a child’s parent if
he is married to the child’s mother, R.C. 3111.03(A)(1), but may also establish
parentage by filing an acknowledgment of paternity, R.C. 3111.03(A)(3), or
presenting evidence of paternity in a parentage action, R.C. 3111.10. An adoptive
parent may establish parentage through proof of adoption. R.C. 3111.02(A).
       {¶ 17} Ohio’s non-spousal artificial insemination statute provides an
avenue for the consenting spouse of a woman who conceives through artificial
insemination to be recognized as the natural parent of the child.         See R.C.
3111.95(A). That statutory provision provides:




                                         6
                                January Term, 2026




               If a married woman is the subject of a non-spousal artificial
       insemination and if her husband consented to the artificial
       insemination, the husband shall be treated in law and regarded as the
       natural father of a child conceived as a result of the artificial
       insemination, and a child so conceived shall be treated in law and
       regarded as the natural child of the husband.


R.C. 3111.95(A).
       {¶ 18} The First District relied on this statutory provision in reversing the
trial court’s determination of parentage and remanding the matter to the trial court
to consider whether the parties “would have been married at the time the children
were born” if same-sex marriage had been recognized in Ohio at that time. 2024-
Ohio-165 at ¶ 28 (1st Dist.).
       {¶ 19} By its plain terms, the statute does not apply to P.S. and C.E. The
statute applies only to married couples, and it is undisputed that P.S. and C.E. were
not married at the time of the inseminations. Courts, of course, ordinarily have no
authority to rewrite statutes. It is “only when . . . clear incompatibility between the
constitution and the law appear, that the judicial power can refuse to execute it.”
Cincinnati, Wilmington & Zanesville RR. Co. v. Clinton Cty. Commrs., 1 Ohio St.
77, 83 (1852). So the only way that we may uphold the First District’s judgment is
if we determine that authority from the United States Supreme Court—which we
are bound to follow under the Supremacy Clause of the United States Constitution,
see U.S. Const., art. VI, cl. 2—requires that the statute be rewritten and
retroactively applied to same-sex couples who would have been married had same-
sex marriage been legal in Ohio at the time of the artificial inseminations.




                                          7
                             SUPREME COURT OF OHIO




B. United States Supreme Court Precedent Does Not Empower Ohio Courts
  to Retroactively Apply the Non-Spousal Artificial Insemination Statute to
                               Unmarried Couples
       {¶ 20} The First District relied on two decisions of the United States
Supreme Court to support its remand order: Obergefell, 576 U.S. 644, and Pavan,
582 U.S. 563. But neither case warrants a retroactive rewrite of Ohio’s non-spousal
artificial insemination statute to include unmarried couples.
       {¶ 21} The Supreme Court in Obergefell held invalid under the Fourteenth
Amendment to the United States Constitution state laws “to the extent they exclude
same-sex couples from civil marriage on the same terms and conditions as opposite-
sex couples,” Obergefell at 675-676, and it held that states must recognize same-
sex marriages validly performed in other states, id. at 680. Obergefell did not
consider any retrospective implications of its holding on states that had not
previously recognized same-sex marriage.
       {¶ 22} Two years later, the Supreme Court applied Obergefell in Pavan. At
issue in Pavan was an Arkansas law requiring a husband to be listed as the father
on the birth certificate of any child born to his wife. Pavan at 564. The Court held
in a per curiam opinion that because Arkansas chose “to give married parents a
form of legal recognition that is not available to unmarried parents,” id. at 567, and
because Obergefell requires states to provide married same-sex couples the same
“‘constellation of benefits that the States have linked to marriage,’” the law must
be applied equally to the wife of a birth mother as it would be to a husband, id. at
564, quoting Obergefell at 670. Together, Obergefell and Pavan stand for the
proposition that states must provide same-sex couples equal access to marriage and
then, once married, the same “constellation of benefits” they furnish to opposite-
sex couples.
       {¶ 23} Pavan presumably means that a married same-sex spouse could take
advantage of the non-spousal artificial insemination statute even though the


                                          8
                                      January Term, 2026




statutory language refers only to a “husband,” R.C. 3111.95(A). But nothing in
Pavan or Obergefell suggests that the statute should be rewritten to apply to
unmarried couples. Nor do those cases support the First District’s “would they
have been married” inquiry.
         {¶ 24} Even though same-sex marriage was legal in over a dozen states2
prior to P.S. and C.E.’s split in 2015, P.S. and C.E. chose not to get married in any
of those states. If they had, Obergefell would require Ohio to recognize that
marriage and C.E. would have a strong argument that the non-spousal artificial
insemination statute should be applied in a gender-neutral manner to her. See
Pavan, 582 U.S. at 563, 566. But because access to the non-spousal artificial
insemination statute turns on marital status, C.E. cannot use the statute to establish
parentage.
         {¶ 25} The non-spousal artificial insemination statute does not provide a
pathway for an unmarried partner who does not have a biological connection to the
child for whom he or she seeks to establish parentage to be recognized as that

2. See Perry v. Schwarzenegger, 704 F.Supp.2d 921, 1004 (N.D.Cal. 2010) (holding
unconstitutional California’s voter-enacted amendment to the California Constitution providing that
marriage between only a man and a woman was valid or recognized in the state); Former
Conn.Gen.Stat.Ann. 46b-20, 2009 Conn.Acts 79 (Reg.Session) (effective Apr. 23, 2009) (current
version at Conn.Gen.Stat.Ann. 46b-20 and 46b-20a); Haw.Rev.Stat.Ann. 572-1, 2013
Haw.Sess.Laws 1 (2d Sp.Sess.) (effective Dec. 2, 2013); 750 Ill.Ann.Stat. 5/201, 2013 Ill.Laws
7141, 7143 (effective June 1, 2014); Me.Rev.Stat.Ann. 19-A, § 650-A, 2013 Me.Laws 1125
(effective Dec. 29, 2012); Md.Code Ann., Fam.Law 2-201(b), 2012 Md.Laws 9, 10 (effective Jan.
1, 2013); Goodridge v. Dept. of Public Health, 440 Mass. 309, 344 (2003) (holding that “barring an
individual from the protections, benefits, and obligations of civil marriage solely because that person
would marry a person of the same sex violates the Massachusetts Constitution”); Minn.Stat.Ann.
517.01, 2013 Minn.Laws 404, 405 (effective Aug. 1, 2013); Latta v. Otter, 771 F.3d 456, 476-477
(9th Cir. 2014) (permanently enjoining Idaho and Nevada “from enforcing any constitutional
provision, statute, regulation or policy preventing otherwise qualified same-sex couples from
marrying”); Former N.H.Rev.Stat.Ann. 457:1-a, 2009 N.H.Laws 60 (effective Jan. 1, 2010); Garden
State Equality v. Dow, 434 N.J.Super. 163, 219 (2013) (holding that “to satisfy the equal protection
guarantees of the New Jersey Constitution,” same-sex couples must be allowed to marry);
N.Y.Dom.Rel.Law 10-a, 2011 N.Y.Laws 749 (effective July 24, 2011); 15 R.I.Gen.Laws 15-1-1,
2013 R.I.Pub.Laws 15 (effective Aug. 1, 2013); Vt.Stat.Ann. tit. 15, § 8, 2009 Vt.Acts & Resolves
33 (effective Sept. 1, 2009); Former Wash.Rev.Code 26.04.010, 2012 Wash.Sess.Laws 199, 200
(effective Dec. 6, 2012).




                                                  9
                             SUPREME COURT OF OHIO




child’s parent. This applies equally to opposite- and same-sex partners. Obergefell
and Pavan do not compel courts to create an extra-legislative pathway for same-
sex couples to access marital privileges when the couple was never married.
C. The First District’s “Would Have Been Married” Inquiry Is Unworkable
        and at Odds with Ohio’s Rejection of Common-Law Marriage
       {¶ 26} We should reverse the First District’s judgment because its “would
have been married” inquiry is incompatible with the statutory scheme. But it’s
worth pointing out that the test the First District would have the trial court apply—
and presumably other trial courts in similar cases—is one that courts are ill-suited
to perform.
       {¶ 27} How is a court to determine what parties would have done had same-
sex marriage been legal in Ohio? Some couples may have chosen to remain
unmarried for financial or personal reasons.       Or, as sometimes happens, the
relationship could have ended when the topic of marriage arose. Even if a couple
took “steps” toward marriage, like moving in together or getting engaged, there’s
no guarantee they would have gotten married. After all, brides and grooms
sometimes get cold feet. But the First District’s mandate would put trial courts in
the position of trying to guess what the parties would have done had same-sex
marriage been legal.
       {¶ 28} Look no further than the facts currently before this court for an
example of the inquiry’s unworkability. C.E. claims that she proposed to P.S., that
they had a civil commitment ceremony, and that they traveled to Boston to get
married, only to abandon their plans when they learned that Ohio would not
recognize the out-of-state marriage. But P.S. denies that any civil commitment
ceremony happened and says she never intended to marry C.E. Even if the trial
court were to accept C.E.’s version of events, it’s still not certain that the parties
would have actually gotten married had the option been available to them in Ohio.
The “would have been married” inquiry therefore sets trial courts out on an


                                         10
                                January Term, 2026




impossible mission to retroactively determine whether a different reality would
have produced different events. That’s a tough ask of trial courts.
       {¶ 29} Indeed, the First District’s “would have been married” test comes
close to resurrecting the old test for common-law marriage in Ohio that applied
before the General Assembly prohibited common-law marriages.                See R.C.
3105.12(B)(1) (“On and after October 10, 1991, . . . common law marriages are
prohibited in this state” and a marriage “may occur in this state only if the marriage
is solemnized by” an authorized person and otherwise in compliance with Ohio
law.). Under prior law, common-law marriages were “not favored” in Ohio and
could be established only with proof of cohabitation and reputation of the marriage
between a competent man and woman, along with a “meeting of the minds.” Nestor
v. Nestor, 15 Ohio St.3d 143, 145-146 (1984), citing Umbenhower v. Labus, 85
Ohio St. 238 (1912), syllabus. Moving in or buying a home together was evidence
of cohabitation. See, e.g., Nestor at 147 (sleeping together in the same bedroom
after moving in together is evidence of cohabitation). Referring to each other as
“spouse” or attending family events together fulfilled the reputation prong of
common-law marriage. See, e.g., Markley v. Hudson, 143 Ohio St. 163, 167-169
(1944). A proposal, the exchange of wedding bands, or a commitment ceremony
was all evidence of a couple’s holding themselves out as married in the community.
See, e.g., Leibrock v. Leibrock, 107 N.E.2d 418, 421 (1952) (finding that, among
other things, the gifting and wearing of rings by the parties was evidence of their
common-law marriage). A signed companionship or “marital” agreement, even if
it had no legal effect, could be evidence of the couple’s intent to marry and satisfy
the “meeting of the minds” requirement of common-law marriage. See, e.g., Nestor
at 147-148 (parties’ contract of marriage was sufficient to demonstrate their
intention to be married).




                                         11
                                  SUPREME COURT OF OHIO




         {¶ 30} The First District’s “would have been married” inquiry would
largely resurrect the former common-law-marriage test. The evidence required to
satisfy its “would have been married” inquiry is virtually indistinguishable from
what was required to establish a common-law marriage. The General Assembly
expressly rejected that type of marriage when it banned common-law marriage in
1991, and it is not within the First District’s power to judicially revive it.
                                     III. CONCLUSION
         {¶ 31} Ohio’s parentage statutes do not authorize the First District Court of
Appeals to remand this case to the trial court to determine if C.E. and P.S. “would
have been married.” We therefore reverse the court of appeals’ judgment and
remand this case to that court to consider the remaining assignments of error.
                                                                             Judgment reversed
                                                                           and cause remanded.
                                    __________________
         BRUNNER, J., concurring in judgment only.
         {¶ 32} Ignoring the well-established rule that appellate courts “will not
consider a question not presented, considered or decided by a lower court,” Kalish
v. Trans World Airlines, Inc., 50 Ohio St.2d 73, 79 (1977), the First District Court
of Appeals erroneously decided this case solely on an unpreserved issue. I would
reverse the First District’s judgment and decline to consider the merits of this appeal
because such consideration would only compound that error. Therefore, I concur
in the court’s judgment only.
         {¶ 33} Although appellee, C.E., did not challenge the constitutionality of
any Ohio law, her argument in the juvenile court was essentially that Ohio’s
statutory scheme involving the parentage and parenting3 of children by same-sex


3. R.C. 3111.01(A) defines a “parent-child relationship” (i.e., parentage) as “the legal relationship
that exists between a child and the child’s natural or adoptive parents.” But parentage is not




                                                 12
                                       January Term, 2026




parents is deficient and lagging, especially since same-sex marriage and family
formation has been recognized by the United States Supreme Court as lawful and
constitutionally protected in Obergefell v. Hodges, 576 U.S. 644 (2015). According
to C.E., she had been a parent to the children born to appellant, P.S., during their
12-year relationship as much as she possibly could. And she believed that denying
her and the children the legal rights and obligations that a parent-child relationship
confers—simply because the General Assembly failed to update Ohio’s laws post-
Obergefell to recognize her family’s formation—was unconstitutional and harmful
to her family. She asked the juvenile court to essentially use its full power in equity
to fill omissions in Ohio law to legally recognize her relationship with the children.
         {¶ 34} C.E. advocated that the juvenile court find that she had established a
“‘legal fiction of biological parentage.’” (Emphasis added in closing argument.)
C.E.’s Written Closing Argument, quoting In re Parentage of M.F., 312 Kan. 322
(2020), paragraph one of the syllabus. Under that argument, C.E. maintained that
laws for the establishment of paternity in Ohio—R.C. 3111.01 through 3111.18—
could be applied to her through R.C. 3111.17, which provides that “[i]nsofar as
practicable,” those statutes apply to an action brought to determine a mother-child
relationship. And she argued that those statutes lay a path for unmarried same-sex
couples to establish parentage consistent with the principles explained in
Obergefell. According to C.E., integrating the application of R.C. 3111.01 through
3111.18 would extend to families like hers the “constellation of benefits . . . linked
to marriage,” Obergefell at 646-647, 670, even though she and P.S. never married



necessarily a prerequisite to establishing parenting responsibilities related to the care of children or
to receiving court-ordered visitation and related responsibilities. See In re Bonfield, 2002-Ohio-
6660, ¶ 36 (recognizing that a shared-custody agreement may be entered into by a parent and
nonparent); Rowell v. Smith, 2012-Ohio-4313, ¶ 1, 3-4, 22 (upholding a juvenile-court order
granting a nonparent temporary visitation).




                                                  13
                             SUPREME COURT OF OHIO




in Ohio or in a state where same-sex marriage was recognized as legal before the
Obergefell decision was issued by the United States Supreme Court.
       {¶ 35} But when C.E. appealed to the First District, she abandoned the
theory that she had used in the juvenile court—that she could establish parentage
through the statutes that unmarried fathers use to establish their paternity. Instead,
she argued for the first time that if she and P.S. had been married when the children
were born, she could be found to be the legal parent of the children under
R.C. 3111.95(A), a law that confers the legal status of natural parent to the husband
of a woman who bears a child conceived through nonspousal artificial insemination
when the husband consented to the procedure.
       {¶ 36} C.E. never asked the juvenile court to retroactively apply R.C.
3111.95(A) to determine her legal rights. She did not ask the juvenile court to find
that she and P.S. would have gotten married but for Ohio’s ban on same-sex
marriage. C.E.’s focus was on her and P.S.’s mutual intent to raise the children as
coparents and their actions in furtherance of that intent. And critically, this new
argument was not raised in C.E.’s objections to the magistrate’s decision, resulting
in a waiver of the issue on appeal. See Civ.R. 53(D)(3)(b)(iv) (failure to object to
a magistrate’s factual findings or legal conclusions generally precludes appellate
review of that issue). Because C.E. failed to raise this argument in her objections
to the magistrate’s decision, the juvenile-court judge did not consider it in rendering
her decision.
       {¶ 37} The First District should not have considered C.E.’s assignment of
error pertaining to R.C. 3111.95(A). Nor should it have reversed the judgment of
the juvenile court based on a legal argument that C.E. did not raise in that court.




                                          14
                                     January Term, 2026




This is especially the case when the evidence in the record does not support such
an outcome.4
         {¶ 38} The juvenile court was careful to recognize the importance of the
rights at stake here. It aptly acknowledged the “disconnect between the laws of this
state and the precedent set by the highest courts,” including the failure to “make
appropriate accommodations for same-sex couples in line with the case law
regarding family formation,” In re E.C.E.S., Hamilton J.C. No. F12-728 Z (Dec. 5,
2019). But the First District did not have the power to fashion a legal remedy for
this problem when that remedy was never presented to the juvenile court by any
party. See Greenlaw v. United States, 554 U.S. 237 (2008) (“the courts generally
serve as neutral arbiters of matters the parties present” [emphasis added]). The
majority opinion and the First District’s decision present two sides of a novel
question that was never presented or factually developed in the juvenile court.
Rather than follow the First District’s path, we should exercise restraint and
summarily reverse the First District’s judgment and remand this matter to that court
for it to consider the remaining assignments of error. Because the majority does
otherwise, I concur in judgment only.
                                    __________________
         Durst Kerridge, L.L.C., Paul R. Kerridge, and Alexander J. Durst; and Link
Nestheide Family Law and Diana M. Link, for appellant.
         Hilton Parker, L.L.C., Johnathan L. Hilton, Geoffrey C. Parker, and Eliza
Bauler O’Grady; and The Family Law and Fertility Group and Danielle L. Levy,
for appellee.
         Frost Brown Todd, L.L.P., and Ryan W. Goellner; and Hupp Margolis &
Leak, L.L.C., and Jason A. Paskan, urging affirmance for amicus curiae The

4. The First District included in its remand order that the juvenile court could take additional
evidence, 2024-Ohio-165, ¶ 36 (1st Dist.), which further establishes that C.E. failed to develop in
the lower court the arguments that formed the basis of the First District’s judgment.




                                                15
                            SUPREME COURT OF OHIO




Nathaniel R. Jones Center for Race, Gender, and Social Justice.
       ACLU of Ohio Foundation, Amy R. Gilbert, and Freda J. Levenson, urging
affirmance for amici curiae National Association of Social Workers Including its
Ohio Chapter and American Civil Liberties Union of Ohio Foundation.
                             __________________




                                       16