Sliding Doors

In re L.E.S., 2026-Ohio-1449 (Supreme Court of Ohio), decided April 28, 2026, Case No. 2024-0303

The Supreme Court of Ohio's decision in In re L.E.S., 2026-Ohio-1449, answers a question Ohio's parentage statutes left open for pre-Obergefell same-sex couples — and answers it with statutory text.

P.S. gave birth to three children through artificial insemination during her relationship with C.E. The couple never married; the relationship ended before Obergefell v. Hodges recognized a constitutional right to same-sex marriage. When C.E. sought legal recognition as a parent, she faced a statutory wall: R.C. 3111.95(A) provides that when a married woman conceives through artificial insemination with her spouse's consent, the consenting spouse is treated as a natural parent. No marriage, no statute.

The First District tried to bridge the gap with equity, remanding for the juvenile court to determine whether the couple 'would have been married' at the time of the births had Ohio law allowed it. The Supreme Court reversed, per DeWine, J. The 'would have been married' inquiry is unworkable: Ohio abolished common-law marriage in 1991, and courts have no tools to adjudicate hypothetical nuptials. Neither Obergefell nor its progeny empowers Ohio courts to apply the artificial-insemination statute retroactively to unmarried couples. The remedy for a statutory gap lies with the General Assembly.

Brunner, J., concurred in judgment only, on grounds appellate practitioners will recognize: C.E. never presented the R.C. 3111.95 argument to the juvenile court, and the First District should never have built its judgment on an unraised, undeveloped theory. Courts are neutral arbiters of the matters the parties present — not laboratories for arguments counsel never made.

The case now returns to the First District for the remaining assignments of error, so this litigation is not over.

Practice point: for clients building families outside marriage, the tools that remain — shared-custody agreements under In re Mullen, co-parenting contracts, adoption where available — must be executed before the relationship frays, not after.

Cousins Family Law briefs parentage and custody appeals throughout Ohio, including before the Supreme Court of Ohio.