Groundbreaking visits

“Con­stru­ing the juve­nile rules lib­er­ally, as we must, we hold that a juve­nile court may issue tem­po­rary vis­i­ta­tion orders in cases within its juris­dic­tion under R.C. 2151.23 if it is in the child’s best interest.”

“Under Juv.R. 13(B)(1), a judge or mag­is­trate may issue tem­po­rary orders with respect to the rela­tions and con­duct of other per­sons toward a child who is the sub­ject of the com­plaint as the child’s inter­est and wel­fare may require.”

— Jus­tice Evelyn

Lund­berg Stratton

A step­par­ent files to request cus­tody of their stepchild fol­low­ing a divorce. A grand­par­ent seeks to gain cus­tody of their grand­child. An aunt or uncle seeks to gain con­trol over the care of a nephew whose liv­ing con­di­tion is ques­tion­able. In each case, the per­son try­ing to earn cus­to­dial rights will almost cer­tainly ask to have vis­i­ta­tion with the child while the cus­tody case is pending.

The ques­tion of whether some­one who is not a bio­log­i­cal par­ent can have par­ent­ing time dur­ing the pen­dency of a cus­tody motion was decided by the Ohio Supreme Court this week in a most unusual case. Rather than a sit­u­a­tion involv­ing a step­par­ent, grand­par­ent or other rel­a­tive, the case before the Supreme Court, Row­ell v. Smith, involved a cus­to­dial bat­tle between a same-sex couple.

In 2003, Julie Ann Smith and Rose Row­ell were in a rela­tion­ship when Smith gave birth to a daugh­ter that she had con­ceived through arti­fi­cial insem­i­na­tion. Their rela­tion­ship ended sev­eral years later and when it did Row­ell filed a motion for shared par­ent­ing. The juve­nile court in Franklin County set the case for trial and ordered that Row­ell be allowed to visit with the child while the case was pend­ing. Smith, who is an attor­ney, refused to com­ply with the order.

Because the court-ordered vis­i­ta­tion was not occur­ring, Row­ell asked the juve­nile court to find Smith in con­tempt, which it did. Sev­eral iter­a­tions of con­tempt orders and appeals of those con­tempt orders took place and even­tu­ally the Ohio Supreme Court denied the appeals, allowed the tem­po­rary order of vis­i­ta­tion to stand and again ordered Smith to allow the vis­i­ta­tion to occur. Still, she refused to allow the child to see Rowell.

At issue was the dif­fer­ence between a com­plaint for cus­tody and a com­plaint that asked only for vis­i­ta­tion. That’s because the statute that allows the court to con­sider claims from non-parents refers only to motions for cus­tody. The Ohio Supreme Court had already ruled in a prior case that a juve­nile court could not hear a request from grand­par­ents for vis­i­ta­tion only.

On Wednes­day, five of the seven Jus­tices of the Court con­cluded that both the Ohio Revised Code and the Ohio Rules of Juve­nile Pro­ce­dure give juve­nile courts author­ity to hear cus­tody com­plaints filed by non-parents and the inher­ent power in those cases to make tem­po­rary orders of vis­i­ta­tion while the cus­tody motions are pend­ing. (Because the under­ly­ing cus­tody case had been resolved in Feb­ru­ary, the other two Jus­tices felt that the case was moot and there­fore didn’t need to be decided at all.)

The high Court did not rule that juve­nile courts must issue vis­i­ta­tion orders, but only that they have the author­ity to con­sider the issue. In order to make such an order, the Court must make a con­clu­sion, based on com­pe­tent, cred­i­ble evi­dence that the vis­i­ta­tion is in the best inter­ests of the child who is the sub­ject of the case.

While the under­ly­ing facts of Row­ell v. Smith are not likely to repeat with any great fre­quency, the appli­ca­tion of the facts to other sit­u­a­tions involv­ing non-custodial par­ents and par­tic­u­larly to cases involv­ing grand­par­ents, makes the case a sig­nif­i­cant devel­op­ment in Ohio law.

David Hej­manowski is a mag­is­trate and court admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer assis­tant pros­e­cut­ing attorney.

Posted by Dave Hejmanowski on Sep 27 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.