In a landmark case in America, a woman has been given joint custody over the biological child of her former lesbian partner.

The child, who was conceived through artificial insemination, was born when the couple were together.

After they split the biological mother tried to use the illegality of same sex marriage in Ohio to avoid joint custody.

The Franklin County Court of Appeals in Ohio upheld the custody arrangement between the two lesbian parents despite the state’s constitutional ban on same-sex marriage.

The three-judge panel ruled that the joint-custody agreement, which was signed by both biological mother Denise Fairchild and former partner Therese Leach (formerly Fairchild) in 2001 was a consent decree, which “is not subject to attack through appeal”.

The judges agreed that under Ohio law, a “marriage may only be entered into by one man and one woman,” but write that a more-relevant section of state law gives the juvenile court jurisdiction over the custody of a child “when one of the parities vying for custody is a non-parent.”

Fairchild conceived a son through artificial insemination in 1996 when she was still living with Leach. When the couple split in 2001, Fairchild had refused Leach contact with her 11-year old son.

In 2005, Fairchild sought to invalidate the agreement by using the constitutional amendment banning same-sex marriage passed in Ohio in November 2004.

A Franklin country Common Pleas magistrate’s ruling in June 2007, adopted by the court’s juvenile branch, found that the custody agreement was valid.

Leach’s attorney Camilla Taylor said,

“This is the first appeals court that I know of in the country to decide a case concerning the potential impact of an anti-gay constitutional amendment on the parenting, custody or visitation rights of lesbian or gay parents.”

Fairchild’s attorney, Keith Golden said he expects her to appeal the decision to the Ohio Supreme Court.

This is not a unique case of parents using anti-gay laws in efforts to gain sole custody rights.

Janet Jenkins (formerly Miller-Jenkins) and Lisa Miller (formerly Miller-Jenkins) were joined in a civil union in Vermont and shortly after had a child.

After the women ended their relationship, Miller moved to Virginia with the women’s daughter, and asked a Vermont court to dissolve the couple’s civil union and sort out custody of the child.

When the Vermont court ordered visitation for Jenkins, Miller filed a new lawsuit in a Virginia court, using that state’s anti-gay marriage law to have herself declared the child’s sole legal parent.

The conflicting court orders, one from Vermont ordering regular visitation for Jenkins, and the other from a lower court in Virginia naming Miller as the sole parent, led to a decision by the Virginia Court of Appeals to uphold the Vermont court order granting Janet Jenkins visitation rights.

Lisa Miller is appealing the decision to the Virginia Supreme Court.