“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
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.